STÉPHANE LAROCQUE Appellant – v. –, 2023 NBKB 72

2023 NBKB 072 BCA/4/2022 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF BATHURST BETWEEN: STÉPHANE LAROCQUE Appellant – and – HIS MAJESTY THE KING Respondent BEFORE: The Honourable Mr. Justice J. A. Réginald Léger AT: Bathurst, New Brunswick DATE OF HEARING: January 25, 2023 DATE OF DECISION: April 28, 2023 APPEARANCES: Marc Guignard, K.C., for the Appellant Pierre Gionet, for the Respondent DECISION

[TRANSLATION] [ 1 ] This is a

summary conviction appeal. The appellant, Stéphane Larocque, appeals from his conviction for an offence contrary to paragraph 320.14(1) (

b) of the Criminal Code of Canada . Specifically, the appellant was convicted of the following offence: [TRANSLATION] On or around August 16, 2019, in or near Caraquet, in the province of New Brunswick, within two hours after ceasing to operate a motor vehicle, had a blood-alcohol concentration equal to or exceeding 80 mg of alcohol in 100 mL of blood, thus committing an offence punishable on

summary conviction under paragraph 320.14(1) (

b) of the Criminal Code of Canada and amendments thereto. As a result of his conviction, the appellant was ordered to pay a fine of $1,000 in addition to a surcharge of $300, for a total of $1,300. A 12-month driving prohibition was also imposed. [ 2 ] In his Notice of Appeal filed on July 11, 2022, the appellant seeks an acquittal of [his conviction for] the offence. In support of his application, he raises the following grounds of appeal: [TRANSLATION] (

a) The trial judge erred in law in finding that the identity of the accused had been proven beyond a reasonable doubt by the evidence adduced at trial. (

b) The trial judge erred in law in finding that there was no violation of the accused’s rights under paragraph 10(

a) of the Canadian Charter of Rights and Freedoms . (

c) The trial judge erred in law in finding that all the requirements set out in subsection 320.31(1) of the Criminal Code of Canada for the results of the analyses to establish the accused’s blood alcohol concentration at the time of the analyses had been met. (

d) The trial judge erred in law in admitting into evidence a copy of the certificate of the analyst and not an original. (

e) The trial judge erred in law in admitting into evidence copies of the certificates of analysts. THE FACTS [ 3 ] In the context of the August 15 celebrations, police officers organized a roadblock on Portage Street in Caraquet. Constables Anthony El-Khoury and Vincent Pageau took

part in the operation. Both are members of the RCMP assigned to Campbellton, in New Brunswick. The reasons given for the roadblock were to verify the sobriety of drivers as well as the validity of their driver’s licences. All police officers involved in the roadblock were wearing their uniforms. [ 4 ] As for Constable El-Khoury, he was wearing a reflective vest to ensure road safety.

During his testimony, the constable described the roadblock as being obvious, several police vehicles having their lights on. [ 5 ] It was in that context that on August 16, 2019, around 1:40 a.m., a Toyota Tacoma vehicle stopped at the roadblock. The evidence shows that there were two people in the vehicle; a man that was driving and a woman in the front passenger’s seat. Constable El-Khoury testified that the driver was identified as Stéphane Larocque. [ 6 ] Firstly, the constable made the active offer to Mr. Larocque, who then informed the police officer that he wanted to be served in French.

Given the grounds of defence and appeal raised, it is important to review some of the trial evidence more thoroughly. [ 7 ] The evidence shows that, when making the active offer to the driver, Mr. Larocque, the constable immediately noticed a smell of alcohol coming from the vehicle. He informed the driver that he smelled alcohol and the driver immediately pointed towards the passenger, who confirmed having consumed that day. When Mr. Larocque was asked by Constable El-Khoury whether he himself had consumed during the day, he replied that he had had a beer on the boat in the afternoon.

At that moment, the police officer noticed that Mr. Larocque’s eyes were watery and glassy.

[ 8 ] The constable asked the driver to step out of the vehicle. As he got out of the vehicle, Stéphane Larocque said to him: [TRANSLATION] “Do you really want to do that?” The police officer replied: [TRANSLATION] “Yes.” [ 9 ] Mr. Larocque got out of the vehicle and handed over his driver’s licence issued by the Province of New Brunswick with a date of birth of September 2, 1969, and an address in Pigeon Hill. The constable testified that, not being from the area, he did not know where Pigeon Hill was located. [ 10 ] While talking with Mr.

Larocque, the constable fairly quickly realized that his breath smelled of alcohol. He then informed the driver that he was being detained in order to provide a breath sample in an approved screening device. [ 11 ] During his testimony, Constable El-Khoury explained that he identified Stéphane Larocque when he got out of his vehicle and handed over his driver’s licence. According to the constable, the photo on the driver’s licence matched the person in front of him, the driver of the vehicle he had just stopped.

The constable testified that there was nothing from the photo, the date of birth and the address to suggest that the person who gave him the driver’s licence was other than Stéphane Larocque. [ 12 ] During his testimony, Constable El-Khoury was asked to identify Mr. Larocque in the courtroom. He identified a person wearing a blue T-shirt and a face mask that was sitting. The evidence would later show that the person identified in court was not Stéphane Larocque, but another person later identified as Serge Caissie. [ 13 ] To continue with the narrative, the constable testified that, after speaking with Mr.

Larocque, he had reason to believe that Mr. Larocque had driven a motor vehicle with alcohol in his blood. [ 14 ] At 1:43 a.m., Constable El-Khoury read the demand to provide a breath sample in an approved screening device. Mr. Larocque agreed. [ 15 ] After three invalid samples, the constable obtained a “fail” result at 1:47 a.m. The Constable testified that, given the result obtained, he had, from that moment on, reason to believe that Mr.

Larocque had driven a motor vehicle while his abilities were impaired by alcohol. [ 16 ] At 1:49 a.m., the constable proceeded to read from a card provided by the RCMP the demand for samples in an approved breathalyzer. Mr. Larocque answered [TRANSLATION] “yes” to the demand. At that moment, Constable El-Khoury placed Mr. Larocque under arrest for driving while impaired, then read him his right to a lawyer before giving him the usual caution. [ 17 ] At 1:56 a.m., Constable El-Khoury left the area of the roadblock accompanied by Mr.

Larocque and Constable Pageau, who, shortly thereafter, would act as a qualified technician. They arrived at the police station in Caraquet at 2 a.m. At 2:07 a.m., Constable Pageau’s observation period began. [ 18 ] Mr. Larocque provided a first suitable sample at 2:32 a.m., then a second one at 3:02 a.m. Between 2:32 a.m. and 3:01 a.m., Mr. Larocque gave six samples deemed unsuitable by the qualified technician. [ 19 ] Once the valid samples had been obtained, Constable Pageau delivered the Certificate of Qualified Technician to Constable El-Khoury. Constable El-Khoury served Mr.

Larocque with the Certificate of Qualified Technician and told him that the certificate could be used as evidence. The constable also served Mr. Larocque with other documents, namely a Promise to Appear, introduced into evidence at trial, a notice of suspension of driving privileges, and a notice of vehicle impoundment. The police officer said he gave the documents to Mr. Larocque after explaining their content. At trial, the constable also explained that he gave Stéphane Larocque the Notice to Attend, a document Mr. Larocque signed. The document was filled out with the information contained on Mr.

Larocque’s driver’s licence. After this, Mr. Larocque was released. I note that the Notice to Attend was introduced into evidence without objection from the defence.

[20] A few additional pieces of evidence are worth highlighting. During his testimony, Constable Vincent Pageau saidsubstantially the same thing as Constable El-Khoury, except where the testimonies differed based on their involvement and theirrespective interactions with Mr. Larocque on the night of August 16, 2019. Constable Pageau was unable to identify Mr. Larocque in thecourtroom. However, he clearly remembers interacting with Stéphane Larocque at the same times as those mentioned by ConstableEl-Khoury. He recalls watching Constable El-Khoury take Mr.

Larocque out of his vehicle in order to talk to him and test him with theapproved screening device (ASD). [21] Constable Doré, for his part, testified that he served copies of two Certificates of Analyst on October 11, 2021. Afterobtaining information on Stéphane Larocque, such as his date of birth and address in Pigeon Hill, the constable set an appointment withStéphane Larocque to serve him with the documents. Stéphane Larocque showed up at the scheduled time and the certificates wereserved on him.

Stéphane Larocque would have identified himself when he arrived at the station to receive the documents fromConstable Doré. [22] Constable Doré explains that he was only able to serve copies of a copy of the Certificates of Analyst that are at theRCMP station in Caraquet. According to Constable Doré, the original could possibly be in British Columbia. Both documents wereadmitted into evidence notwithstanding the objections of the defence at trial. [23] The defence only called one witness, Serge Caissie. Mr. Caissie testified that he was present for the duration of StéphaneLarocque’s trial.

He said that he was identified by a police officer as being Stéphane Larocque. He testified that he has known StéphaneLarocque since his childhood, and that they are friends. He adds that he knew that Stéphane Larocque had been arrested onAugust 16, 2019, as it was him who came to pick up Mr. Larocque to bring him home. [24] This is the bulk of the evidence needed to decide the issues raised on appeal. STANDARDS OF REVIEW [25] The standards of review that apply to such cases are well established. In R. v. Fowler, 2006 NBCA 90 , our Courtof Appeal, at paragraph 17, states the following: While the scope of a

summary conviction appeal to the Court of Queen’s Bench is broad enough to allow appeals on questions offact, the function of the

Summary Conviction Appeal Court is nevertheless not to retry a case or to second guess the findings of factsmade by the trial judge. Absent an error of law or a miscarriage of justice, the role of the

summary conviction appeal judge is todetermine whether the findings of the trial judge are unreasonable or cannot be supported by the evidence[…] [26] In short, when the question relates to findings of fact, the standard is that of [TRANSLATION] “palpable and overriding”error. The decision of the trial judge is then owed deference.

When it comes to a question of law, the standard is that of correctness. [27] The parties agree that the standard of [TRANSLATION] “palpable and overriding” error applies to the first two issuesraised by the appellant, namely those related to the identification and detention of the accused, and that the standard of correctnessapplies to the other issues that the appellate court is called upon to decide. It is in light of the standards set out above that I will considereach of the grounds of appeal raised by the appellant.

FIRST GROUND OF APPEAL The trial judge erred in law in finding that the identity of the accused had been proven beyond a reasonable doubt by theevidence adduced at trial. [28] The appellant argues that the trial judge committed an error of law warranting intervention in finding, in the circumstancesof this case, that the Crown proved the identity of the accused beyond a reasonable doubt.

[29] The complication flows from the fact that, during the trial, Constable El-Khoury identified the wrong person when he wasasked during his testimony to identify Stéphane Larocque. In fact, he identified Serge Caissie. Constable Vincent Pageau was unable toidentify the accused with certainty when asked to do so at trial. [30] The trial judge was very aware of the problem with the identification evidence when she found that the prosecution hadestablished the identification of the accused in accordance with the required standard. On the issue of identification, the judge found asfollows: [TRANSLATION] 16.

It follows from the relevant case law that the fact that an accused is not identified in court at trial is not fatal to the prosecution’scase. Identification can be done by other means. 17. In this case, I am satisfied, on the basis of the trial evidence that I accept, that the Crown has proven Mr. Larocque’s identity beyonda reasonable doubt. That evidence includes Constable El-Khoury’s testimony that the photo on the driver’s licence matched the person infront of him, that the name on that driver’s licence was that of Mr.

Larocque, that the “Promise to Appear” document marked C-1 filledout by Constable El-Khoury was filled out using the information found on the driver’s licence bearing Mr. Larocque’s name, and that alawyer appeared in court to represent Mr. Larocque subsequently in relation to that document. [31] The trial judge indicated that the fact that the accused could not be identified in the courtroom was not fatal. It goeswithout saying that the burden is on the prosecution to prove beyond a reasonable doubt that the accused committed the alleged crime. [32] In R. v.

Nicholson, 1984 ABCA 88, a decision often referred to in the context of identification evidence, Justice Kerans,for the Court of Appeal, explains the following at paragraph 4: The argument for the appellant before us proceeded on the assumption that a dock identification by an arresting officer is an integral partof the criminal process. This is a myth. That the Crown often relies upon such evidence should not permit us to think that a dockidentification is a ritual as essential to a criminal trial as, say, the reading of a charge.

The onus upon the Crown is to prove that the crimealleged has been committed and that the accused is the person who did it. This last, like any fact-in-issue, can be proven in manydifferent ways. [33] In dealing with a similar issue, Justice Grenier in R. v. Blouin, (QC CS), reiterates what JusticeEwaschuk wrote in The Criminal Pleadings and Practice in Canada, at

section 16.7120, which reads as follows: The failure by police to identify the accused in court as the person committing the crime charged, is not necessarily fatal where theaccused identified himself to the police at the scene of the crime, and bears the same name as the name given by the person investigatedand the person required to appear in court. [34] The respondent maintains that the evidence produced at trial was sufficient to establish the identity of the accused.

Iconclude that, in the circumstances of this case, it was open to the trial judge to find that the identity of the accused had been provenbeyond a reasonable doubt. This is a finding of fact that was amply supported by the evidence. Contrary to the appellant’s claims, thebulk of the evidence leaves no room for doubt as to the identification of the accused. When considering the evidence as a whole, I am ofthe view that the trial judge’s finding does not constitute an error in the assessment of the evidence warranting appellate intervention. [35] In fact, the evidence was quite cogent and uncontradicted.

The driver of the vehicle that was stopped was undoubtedlyStéphane Larocque. The driver’s licence provided to the constable at the scene identified Stéphane Larocque and was confirmed by aphoto that fully matched the person in the presence of the police officer. The Promise to Appear issued to Stéphane Larocque wasintroduced into evidence and signed by the accused before the police officer. The Promise to Appear required Mr. Larocque to appear ona specific date, and a lawyer came to enter a plea on his behalf on that date. Finally, it is Stéphane Larocque that later came to the RCMP

station at the request of the police officers and was then given copies of documents. In this case, there was ample evidence to allow the trial judge to make a finding as to the identity of Stéphane Larocque. [ 36 ] For these reasons, this ground must fail. SECOND GROUND OF APPEAL The trial judge erred in law in finding that there was no violation of the accused’s rights under paragraph 10(

a) of the Canadian Charter of Rights and Freedoms . [ 37 ] The appellant attempted at trial and on appeal to argue that his rights under paragraph 10(

a) of the Canadian Charter of Rights and Freedoms were breached. [ 38 ] In that regard, the trial judge found that there was no violation of the accused’s rights as alleged by the appellant. On this subject, the judge found as follows: [TRANSLATION] 26. Based on the evidence, I find that it was clear that, upon his arrival at the roadblock, Mr. Larocque received the active offer and indicated the language of his choice to the constable. The constable smelled alcohol from the vehicle and reported it to the driver, who pointed towards the passenger. Mr.

Larocque was asked by Constable El-Khoury whether he had consumed alcohol. Mr. Larocque answered that yes, [he had consumed alcohol] in the afternoon. The constable asked him to step out of the vehicle to ensure that the smell of alcohol did not come from his breath, but from the inside of the vehicle. As he was getting out of the vehicle, Mr. Larocque asked the constable: [TRANSLATION] “Do you really want to do that?” I find that Mr. Larocque knew why the police officer was asking him to get out of the vehicle. It can reasonably be assumed that Mr.

Larocque was aware of the reason for his detention, and therefore of the “essence” of the detention, which was for investigation purposes related to a suspicion of driving while impaired by alcohol. 28. Based on the evidence that I accept, I conclude that Constable El-Khoury informed Mr. Larocque of the reasons for his detention as soon as possible, as required by paragraph 10(

a) of the Charter . Mr. Larocque’s rights under paragraph 10(

a) of the Charter have not been infringed. [ 39 ] Just like the trial judge, I am of the opinion that there was no violation of the appellant’s Charter rights. The evidence clearly supports the trial judge’s finding on this matter. Constable El-Khoury arrested the appellant in the context of a roadblock during the night following the August 15 festivities in Caraquet. The appellant was stopped while driving a car in a particular context, a context in which he clearly became aware of the presence of several police vehicles and police officers. [ 40 ] The constable informed Mr.

Larocque that he smelled alcohol in his vehicle. When questioned about the smell of alcohol, Mr. Larocque pointed towards the passenger, while confirming to the constable that he had consumed a beer in the afternoon. As he was exiting the vehicle, Mr. Larocque asked Constable El-Khoury: [TRANSLATION] “Do you really want to do that?” [ 41 ] At 1:43 a.m., a demand is made for him to provide a breath sample in the approved screening device (ASD). Everything is happening quite quickly. Recall that Mr. Larocque was stopped at 1:40 a.m.

The evidence leaves little doubt that Stéphane Larocque knew he was detained so that an investigation could be made with respect to a suspicion of impaired driving. [ 42 ] The trial judge’s finding is well supported by the evidence. Since the decision is fully supported by the evidence, there is no basis for appellate intervention. The ground of appeal raised by the appellant with respect to a Charter violation must be dismissed and therefore the second ground of appeal fails.

THIRD GROUND OF APPEAL The trial judge erred in law in finding that all the requirements set out in subsection 320.31(1) of the Criminal Code of Canada

for the results of the analyses to establish the accused’s blood alcohol concentration at the time of the analyses had been met. [43] The third ground of appeal raised by the appellant relates to the

interpretation to be given to subsection 320.31(1) of theCriminal Code of Canada. The appellant alleges that the trial judge erred in law in finding that all the requirements set out atsubsection 320.31(1) had been met, and therefore the prosecution cannot benefit from the presumption of accuracy provided by therecent amendments to the Criminal Code of Canada. [44] In her decision, the trial judge found that the requirements of subsection 320.31(1) of the Criminal Code of Canada hadbeen met.

More specifically, the trial judge found that certification by a qualified technician that the alcohol standard was certified by ananalyst is sufficient to allow the prosecution to benefit from the presumption of accuracy of the results of the breath samples obtainedfrom the appellant. Here is what she wrote: [TRANSLATION] 53. Based on the line of cases, I find that the requirement under paragraph 320.31(1)(

a) of the CCC that the standard alcohol be certifiedby an analyst can be proven by a Certificate of Qualified Technician that shows that the standard alcohol has been certified by an analyst. 54. In this case, Exhibit C-3 indicates that, before the samples were taken, Constable Pageau conducted a system blank test, the result ofwhich was not more than 10 mg of alcohol in 100 mL of blood, and a system calibration check, the result of which was within 10% of thetarget value of an alcohol standard that is certified by an analyst as suitable for use with a breathalyzer. 55. Therefore, I find that the requirements of paragraph 320.31(1)(

a) of the CCC have been met. However, if I am wrong, I turn to theissue of the admissibility into evidence of documents I-2 and I-3, i.e., the analysts’ certificates. [45] The trial judge made these findings after considering lines of cases, including R. v. Goldson, 2021 ABCA 193 , adecision of the Court of Appeal of Alberta that has been quoted many times. That decision supports the appellant’s claims in this case. Insupport of its position, the prosecution relies on the conflicting decision of the Court of Appeal of Yukon in R. v.

MacDonald,2022 YKCA 7 . [46] Before going any further, it is important to repeat what the trial judge found with respect to the Certificate of QualifiedTechnician admitted into evidence: [TRANSLATION] 38. The Certificate of Qualified Technician has been marked I-1 for identification purposes. Based on the evidencethat I accept, I conclude that the requirements set out in ss. 320.32(2) of the CCC have been met. The Certificate of Qualified Technicianis accepted into evidence. It is marked C-3. That document states that: • Constable Vincent Pageau, designated under para. 320.4(

a) of the CCC as a technician to operate the approved breathalyzerdescribed in the document, has taken two breath samples from Stéphane Larocque, received in the breathalyzer operated by him. • Before the samples were taken, Constable Pageau conducted a system blank test, the result of which was not more than 10 mg ofalcohol in 100 mL of blood, and a system calibration check, the result of which was within 10% of the target value of an alcohol standardthat is certified by an analyst as suitable for use with a breathalyzer. • That alcohol standard is described as: Airgas, lot AG816021. • The samples were taken at intervals of at least 15 minutes. • The results of the analyses, rounded down to the nearest multiple of 10 mg, did not differ by more than 20 mg of alcohol in 100 mLof blood. [47] Like at trial, the decision in Goldson (supra) and the others that followed along the same line are at the heart of theposition put forward by the appellant in this case.

See also R. v. Brisson, 2020 QCCS 3794, and Vigneault v. R., 2021 QCCS 3341. [48] As mentioned, the prosecution relies on R. v. MacDonald (supra), a decision of the Court of Appeal of Yukon issued afterGoldson.

[ 49 ] In MacDonald , Justice Bauman began by discussing the case law prior to the enactment of Bill C-46 with respect to hearsay evidence. At para. 40, he wrote as follows: To enjoy the “advantage” of the statutory presumption under the predecessor scheme, the Crown needed only to lead the certificate of the qualified technician or their oral evidence.

The certificate of the analyst or their oral evidence as to the suitability of the substance or solution intended for use in the approved instrument was not required (even though a certificate in that regard was provided for in s. 237(1)(e)). [ 50 ] Contrary to the Court of Appeal of Alberta’s finding in Goldson , Justice Bauman found that Bill C-46, in force since December 18, 2018, does not in any way change the situation for the prosecution, in that Parliament has not made any major changes by adding requirements on the Crown in proceedings for offences under paragraph 320.14(1) (b).

Justice Bauman is of the opinion that the legislators wanted to implement a system that was in fact intended to simplify the evidentiary requirements on the Crown in prosecuting impaired driving cases. [ 51 ] At paragraphs 44-47, Justice Bauman wrote the following: [44] But I begin by stating two propositions.

The first is rhetorical: given that the legislative purpose of the “80-and- over” scheme across its various iterations has always been as the Alex court stated, why would Parliament be seen to be adding an evidentiary requirement on the Crown to prove the reliability of the alcohol standard by resort to the oral evidence or the certificate of the analyst who certified it? [45] The second proposition is simply this.

If the certification of the alcohol standard is a fact in issue that must be proven by the Crown, and I conclude it is – and even if we reject the Crown’s submission to us that we are not dealing in the qualified technician’s certificate with hearsay from the analyst – we must give effect to the clear words of s. 320.32(1) that the certificate of the qualified technician is “evidence of the facts alleged in the certificate,” and here, as in all such certificates, the qualified technician has stated: Prior to each of the said samples I conducted a system calibration check, the result of which was within 10% of the target value of an alcohol standard which was certified by an analyst.

The alcohol standard was suitable for use in the said approved instrument and identified as AIRGAS, lot AG816201. System calibration checks are also documented on the subject test report and abbreviated as “STD.” [46] The point is simply this, if the qualified technician’s certificate is “evidence of the facts alleged” in it, the Crown has, by filing the certificate introduced evidence that the alcohol standard was certified by the analyst. [47] Are these propositions properly to be rejected in the context of the 2018 Amending Act ?

I turn to Goldson . [ 52 ] Finally, at paragraphs 61 to 65, Justice Bauman explains why he disagrees with the Goldson decision: [61] The error of the Court in Goldson was to read the addition of the certification of the alcohol standard as a precondition to be a “significant change.” That understanding fails to consider the scheme (or the predecessor scheme) as a whole. [62] The changes introduced by the 2018 Amending Act can be understood as follows. [63] There is no longer a distinction in the statutory text between the evidence-by-certificate and evidence-by-testimony approach.

The reorganization renders the evidentiary requirements more uniform between these two approaches – no matter which approach the Crown uses to establish the preconditions for the presumption of accuracy, it must now always establish in its case that the qualified technician used an alcohol standard that was certified by an analyst. I would not call this an “elevation” of the requirement, but rather, a standardization of the requirement.

In my view, it was a statutory anomaly that the Crown had previously only been required to introduce evidence about the suitability of the alcohol standard at first instance when proceeding by way of the technician’s certificate. [64] Second, the amendments simplified the various hearsay/certificate shortcuts. There is now a single omnibus hearsay/certificate allowance for analysts, medical practitioners, and technicians. See again s. 320.32(1): A certificate of an analyst, qualified medical practitioner or qualified technician made under this

Part is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person who signed the certificate. [65] The previous requirement that the qualified technician’s certificate must assert the suitability of the alcohol standard lost its

textual home. Today’s s. 320.32(1) would be a poor fit, without re-complicating the now simple language. [53] In the recent decision R. v. Hepfner, 2022 ONSC 6064 , Justice Smith, of the Superior Court of Justice ofOntario, sitting on appeal in a

summary conviction case, adopted Justice Bauman’s analysis in the MacDonald case.

At paragraphs 18,20, and 21, Justice Smith writes: [18] The analysis which follows in MacDonald demonstrates that the new legislation, rather than representing a significant shift in thelaw (as the court in Goldson concluded), includes “innocuous” changes which merely simplify the shortcuts available to the Crown,doing away with the evidentiary distinctions that formerly existed between evidence presented by certificate and evidence presented byviva voce testimony and providing for a single standard of admissibility for certificates (see paras. 63-67).

Accordingly, the court inMacDonald concluded, it is “not necessary for the Crown to go beyond the qualified technician’s certificate or oral evidence as to thefact of the alcohol standard’s certification” (MacDonald, para. 75). [20] Considering the scheme of the Code as a whole, leads to the conclusions set out above. That is, that the Crown need not gobeyond the qualified technician’s certificate or oral evidence as to the fact of the alcohol standard’s certification. [21] Accordingly, in this case, the oral evidence of the qualified technician respecting the precondition found in s. 320.31(

a) wasadmissible and, as the trial judge accepted that oral evidence, this ground of appeal must fail. [54] It is common ground that the presumptions provided for in ss. 320.31(1) apply to the appellant’s case, i.e., that onAugust 16, 2019, the new provisions were in force. [55] I am reproducing the text of subsection 320.31(1): • 320.31

(1) If samples of a person’s breath have been received into an approved instrument operated by a qualified technician, theresults of the analyses of the samples are conclusive proof of the person’s blood alcohol concentration at the time when the analyseswere made if the results of the analyses are the same – or, if the results of the analyses are different, the lowest of the results isconclusive proof of the person’s blood alcohol concentration at the time when the analyses were made – if o

a) before each sample was taken, the qualified technician conducted a system blank test the result of which is not more than10 mg of alcohol in 100 mL of blood and a system calibration check the result of which is within 10% of the target value of analcohol standard that is certified by an analyst; o

b) there was an interval of at least 15 minutes between the times when the samples were taken; and o

c) the results of the analyses, rounded down to the nearest multiple of 10 mg, did not differ by more than 20 mg of alcohol in 100 mLof blood. [56] The new provisions of subsection 320.31(1) and

section 320.32 allow the prosecution to benefit from the presumption ofaccuracy, subject to certain conditions, and to introduce into evidence a Certificate of Qualified Technician that proves the alleged factswithout the need to prove the authenticity of the signature or the official capacity of the signatory. [57] Just like Justice Smith in R. v.

Hepfner (supra), I adopt the words of Justice Bauman in MacDonald. [58] In the case at hand, the Certificate of Qualified Technician expressly states: [TRANSLATION] “Before taking thesamples, I conducted a system blank test, the result of which was not more than 10 mg of alcohol in 100 mL of blood, and a systemcalibration check, the result of which was within 10% of the target value of an alcohol standard that is certified by an analyst as suitablefor use with the Intox EC/IR II.” [59] Contrary to what the appellant argues in this case, the statement by the qualified technician is sufficient to meet therequirements of subsection 320.31(1) of the Criminal Code of Canada, and thus allow the prosecution to benefit from the presumption ofaccuracy available under subsection 320.31(1).

There is no need to add other requirements to allow the prosecution to benefit from thepresumption of accuracy, such as requiring the admission into evidence of a certificate of analyst or the oral testimony of the analyst. Asprovided for in subsection 320.32(1), a Certificate of Qualified Technician is nothing more than evidence of the facts alleged in thecertificate. In other words, the certification of the qualified technician in his certificate constitutes admissible hearsay.

[60] Of course, the other requirements must also be met, except that in this case, the appellant is focusing on the one I have justdiscussed, both at trial and on appeal. In fact, in the case under appeal, all the requirements that are listed to allow the prosecution tobenefit from the presumption have been met. For these reasons, the ground of appeal as presented by the appellant must fail. [61] In my opinion, the trial judge did not err in law when she found that all of the requirements found in ss. 320.31(1) hadbeen met.

The trial judge was right to find that the above requirements were met. [62] I am of the view that there is no reason to intervene in this case, especially since the trial judge had in evidence not onlythe Certificate of Qualified Technician, but also the certificates of the analysts with respect to the alcohol standard samples used in theappellant’s case. This brings me to the last ground of appeal raised by the appellant.

FOURTH GROUND OF APPEAL The trial judge erred in law in admitting into evidence copies of the certificates of the analyst. [63] The appellant argues that the judge erred in law in admitting into evidence a copy of the certificate of the analyst insteadof requiring the original certificate of analyst or their oral testimony. [64] I agree with the trial judge that the copies of the certificates of analysts were admissible into evidence. In my opinion, theprerequisites for the admission of certificates into evidence are met. [65] Firstly, it should be noted that subsection 320.32(1) makes no mention of an original.

In addition, the appellant receivedreasonable notice. In the case before us, there is no reason to doubt the reliability of the documents tendered in evidence. The courtshares the respondent’s position with respect to the use of copies in the context of this case. I find useful and convincing the discussion related to the use of copies by author McWilliams in

chapter 24 of McWilliams Canadian Criminal Evidence, 5th Edition, where hewrites: The most common form of secondary documentary evidence is a copy (or print) of the “original” document. In some cases, admissibilityis determined by statute. The statutory regime under the Canada Evidence Act for admissibility of copies of public (ss. 24, 25),government (ss. 26, 31), banking (ss. 29, 31) and business (s. 30) records is discussed infra. Otherwise, the common law governs. As a general rule, the party tendering a copy is required to prove that it is a true copy of the original.

This is normally done by producinga certified copy or evidence that the copy has been compared to the original (i.e. an examined copy). The law with respect to proving thefaithfulness of copies was once fairly detailed because before the advent of photocopiers and other technologies, copies were made byhand, and so there was more potential for error. Modern copy-making technologies are generally reliable, and courts are now less likely to strictly require a party to lead evidencesupporting the reliability of copies.

And so, where a photocopy or carbon paper has been used to make a copy, there is no requirementthat there be a comparison between the copy and the original. A good

summary of the law in this area, in the context of breathalyzer certificates can be found in R. v. Munshi, where Hill J. held: Over time, as is apparent from the relevant jurisprudence, police forces have employed different methods of creating an originalcertificate and copies thereof –longhand copying, use of carbon copy paper, snapset forms, photocopying, and word processor-createdand printed forms. Modernization of the copying process and technological change has led to the view that there can be duplicateoriginals which may reasonably be described as copies: R. v. Walsh (1980), (ON CA), 6 M.V.R. 125 (Ont.

C.A.) at132-3 per Morden J.A. … The court is entitled, from examination of the copy introduced into evidence in court, to find that aphotocopying process was employed to make copies… The first created document may be viewed as an “original … copy” … Where an exact-copy replication process is used, i.e., “Xeroxingor carbon paper,” it is generally unnecessary to compare the original or top copy with the copies; …

However, if there is any suggestion that the copy may have been intentionally altered, or that there are pages missing, the party tendering the copy will need to lead evidence in support of the copy’s faithfulness. In addition, where a case involves allegations of fraud, forgery or false preten[s]es, the validity of documents will likely be at issue, and the court will be stricter about requiring proof of the truth of copies. [ 66 ] Also, in R. v. Delorme , 2021 ONCJ 569 , the judge accepted copies into evidence during a trial held in the context of the pandemic.

Here is what he wrote on the matter at pages 16 and 17. The law has evolved, in my view, significantly since the years after 1969 when counsel and Crowns argued about smudges on copies of documents that were served. I remember those years. I agree with the Crown that

section 320.32 of the Code does not explicitly require proof that the certificate was original in the traditional sense. That is to say the document that is filed. Neither the

section itself nor the evolving case law, in my view, explicitly require proof that it is the original, in the narrow sense that they were the first generated or created documents. It seems to me that Justice Hill of the Superior Court of Justice anticipated just this issue in several decisions that he was involved with, nearly 20 years ago. The requirement of the relevant

section of the Criminal Code requires proof of service of an accurate and complete copy on the accused. That is the issue. [ 67 ] Given all the circumstances, I am of the view that the trial judge made no error warranting intervention. For these reasons, the ground of appeal relating to the admissibility of copies into evidence must fail. [ 68 ] In

summary, the trial judge made no error of law in finding that the appellant was guilty. The conviction is not only supported by the evidence, but also correct in law. [ 69 ] For these reasons, the appeal is dismissed and the conviction upheld. The order to stay the driving prohibition signed on July 21, 2022, is set aside. April 28, 2023 ____________________ Bathurst, N.B. Réginald Léger, J.C.K.B.