Her Majesty the Queen - v. -, 2016 SKPC 40

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 040 Date: March 10, 2016 Information: 90006746 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Carol Bouchard Appearing: A. Rozon For the Crown M. Deshaye For the Accused RULING ON APPLICATION C.A. SNELL , J [ 1 ] Ms.

Bouchard has applied for an order, pursuant to ss. 4(7) and 258(7) of the Criminal Code , requiring the attendance, for the purposes of cross-examination, of the person who prepared an Affidavit which stated that service on the accused of a copy of the “Certificate of A Qualified Technician” had been made in this case. [ 2 ] The relevant sections are reproduced below: 4(6) For the purposes of this Act, the service of documents and the giving or sending of any notice may be proved (

a) by oral evidence given under oath by, or by the affidavit or solemn declaration of, the person claiming to have served, given or sent

it; or. . . 4(7) Despite subsection (6) or (6.1), the court may require the person who appears to have signed an affidavit, solemn declaration or astatement in accordance with that subsection to appear before it for examination or cross-examination in respect of the issue of proof ofservice or the giving or sending of any notice. 258(7) No certificate shall be received in evidence pursuant to paragraph (1)(e), (f), (g), (

h) or (

i) unless the party intending to produce ithas, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate. [3] The decision of the Alberta Court of Appeal in R v Spreen (1987), 1987 ABCA 189 , 40 CCC (3d) 190 is authorityfor the proposition, if such is needed, that a Certificate of Analyses (or a “Certificate of a Qualified Technician” as it is titled in thepresent case) is a “document” within the meaning of subsection 4(6) and therefore the fact of service of a copy of it may be proved byway of affidavit. [4] The purpose of subsection 4(6) is to provide the crown with a means of meeting its burden of proving that service of a copyof the Certificate has been made upon the accused, without having to call the person who served the document.

The order permitted bysubsection 4(7) is a discretionary one. Accordingly, there must be some reasonable basis provided to the Court to allow it to determinethat the order should be made. [5] The crown submits the defence application should be dismissed, arguing that the defence has not provided the Court withany reason to believe that Ms. Bouchard was not properly served with a true copy of the Certificate. [6] The basis for the application in the present case is found in the Memorandum filed by defence counsel by fax on February 5,2016.

The relevant portion of that document is as follows: The Defence wishes to raise the issue of the manner of service of the Certificate of Analysis. This application is made on the groundsthat the only proof of service of the Certificate is the affidavit of service itself. Service was purportedly completed after 0900 hours the morning following the Accused’s arrest. Peace Officer Crumly could notprovide any handwritten notes or typed supplementary occurrence reports that would allow the defence to examine the method ofservice.

Moreover, there is no corroborating evidence that would suggest service in fact occurred. The defence is of the position that theonly way to explore this issue would be to cross-examine Peace Office Crumly. In the absence of cross-examination the defence wouldbe left in the position of accepting, blindly, that because there is an Affidavit of Service, service is in-fact what occurred. [7] Something more than what has been reproduced above is required in order to fulfil the requirement that there be a reasonprovided to the Court to justify an order that the affiant appear to be examined.

It is not sufficient for the defence to simply state thatthey want to raise the issue.

Defence counsel is indeed required, by subsection 4(6) of the Criminal Code, to accept that because there isan Affidavit of Service, proper service took place, unless they are able to point out something to the Court which might suggestotherwise. [8] In R v Longley, (SK KB), [1997] SJ No. 207 (QB) the person who served the copy of the Certificate didtestify, but an issue was raised concerning whether what he served was a “true copy” as stated in the affidavit, because he failed to testifythat he had compared the original with the copy he served.

Kyle, J. stated at paragraph 9: It would not be unreasonable to require that if there is to be a challenge under this subsection of the affidavit or of the copy supplied, itshould be based upon a discovered difference as between the copy and the original. Otherwise the refusal to admit the certificatebecomes merely the prize in a procedural game which can only bring the justice system into disrepute. The object of this

section is toassure that the accused knows the case he has to meet. Unless the copy which he receives is in some way different from the original,that object has been met. There is no reason to elevate the requirement beyond that level of importance. [9] Defence counsel has suggested the decision of my colleague Tomkins, J. in R v Koma, 2014 SKPC 120 supports hissubmission, since she noted in that decision that ss. 4(7) provides an accused person an opportunity to raise issues as to the manner ofservice and thus place the issue before the Court. However, she noted that no such issue had been raised in that case.

[ 10 ] When one reads the Koma decision on this issue in its entirety, it is clear that Judge Tomkins was facing an argument identical to the one being made here, except without an application to cross-examine the affiant. She notes at paragraphs 107 and 108: 107 The Crown did not call the officer who served the Certificate of Analyses on Mr. Koma but instead, relied on the completed Affidavit of Service on the back of the certificate.

In this regard, the Crown argued that section 4(6) of the Criminal Code authorizes proof of service by means of affidavit without more. 108 The defence conceded that this is so, but argued that without evidence as to the manner of service, the Court cannot be aware how the officer who served the document prepared or obtained the copy, whether he compared it to the original or that the copy actually came into Mr. Koma’s possession and was retained by him.

He argued that without such evidence, it has not been proven that a true copy of the certificate was served or that service was proper. [ 11 ] Judge Tomkins rejected the argument that the Affidavit of Service, without more, did not prove proper service of a true copy of the Certificate of Analyses. She also quoted the same passage from the Longley decision that I have reproduced above at paragraph 5. In my view, her decision does not support the position advanced by Ms.

Bouchard that all an accused person has to do is indicate that they want to raise the issue and request the affiant testify to obtain an order under ss. 4(7) , without providing something more to suggest that there has been in the particular case before the Court something that would bring into question whether proper service has been made, or whether a proper copy was served on the accused. [ 12 ] The application is denied. _____________________________ C.A. Snell, J