Her Majesty the Queen - v. -, 2014 SKPC 35

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 035 Date: June 5, 2014 Information: 44333890 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Tyler Hoover Appearing: Barbara Herder For the Crown Ron Piché For the Accused JUDGMENT M.L. GRAY , J [ 1 ] Mr. Hoover was charged on December 4, 2013 with driving while disqualified, contrary to s. 259(4) of the Criminal Code . [ 2 ] The evidence is straightforward and uncontradicted.

Constable Travis Chomyn has two years experience as a police officer and on December 4, 2013, was on routine patrol in Saskatoon, Saskatchewan when he ran a check on the licence plate on a red Chrysler. That check revealed that Tyler Hoover was the registered owner of the vehicle and that he was disqualified from driving anywhere in Canada. As a result of this information, he did a traffic stop.

[ 3 ] He approached the driver, and asked for a driver’s licence and registration. The driver said that: (

i) he did not have a driver’s licence; (ii) the vehicle belonged to Chad Thompson; (iii) he was Chad Thompson; and (iv) his birthday was September 24, 1990, Tyler Hoover’s date of birth. The officer warned him that if he lied about his identity, he could be charged with obstructing a peace officer. The driver then asked permission to step out of his car to speak to the officer. [ 4 ] Outside the car, the operator of the vehicle identified himself as Tyler Hoover and admitted that he knew that he was prohibited from driving.

Counsel for the accused took no issue with the voluntariness of this statement, nor was any Charter violation asserted. [ 5 ] Constable Chomyn searched SGI driver records, obtained a photograph of an individual named Tyler Hoover and concluded that this was the person with whom he was dealing. As a result, the accused was arrested and read his rights to counsel.

Subsequently, he was released on an Appearance Notice that forms part of the court record. [ 6 ] Counsel for the Crown tendered a Certificate of Disqualification and Notice of Intention to Tender Certificate and this was marked Exhibit P-1 for identification. Similarly, a letter from SGI directed to Tyler Hoover was marked as Exhibit P-2 for identification. [ 7 ] In cross-examination, Constable Chomyn acknowledged that he was not asked to serve either of those exhibits.

This concluded the case for the Crown and the accused elected to call no evidence. [ 8 ] Counsel for the accused argues that: 1. identity of the accused has not been proven beyond a reasonable doubt; 2. there is no evidence that proper notice had been given of the two documents tendered by the Crown; and 3. service on a lawyer may not satisfy the notice requirement if counsel never agreed to accept service. [ 9 ] The Court was referred, by counsel for the accused, to the following authorities: R. v. Babatunde O. Cole and Wan Loong Ma , 2011 ABPC 131 , R. v. Ahmed Assowe Yonis , 2009 ABCA 336 , R. v.

Arsenault , [1975] N.B.J. No. 279 (N.B. County Court) , R. v. Kavanaugh , 2011 ABPC 288 and R. v. Keenan , 2012 QBCA No. 28 (Sask.

Q.B.). [ 10 ] In response, the Crown argues that an in-court identification of the accused is not necessary; it is sufficient that the individual with whom the police officer dealt has surrendered to the Court as demonstrated through the Appearance Notice. [ 11 ] With respect to service, the Crown relies on s. 260(6) of the Criminal Code which states: Subsection (5) does not apply to any proceedings unless at least seven days notice in writing is given to the accused that it is intended to tender the Certificate in evidence. [ 12 ] Subsection (5) of s. 260 states: In proceedings under s. 259, a Certificate setting out with reasonable particularity that a person is disqualified from

(

a) driving a motor vehicle in a province, purporting to be signed by the Registrar of Motor Vehicles for that province . . . is evidence ofthe facts alleged therein without proof of the signature or official character of the person by whom it purports to be signed. In support of this position the Crown relies on R. v. Vollman, (SK CA), 79 Sask. R. 270, a decision of theSaskatchewan Court of Appeal. The position of the Crown is that proof of service is not required as notice simply needs to be providedto counsel. The consent of counsel of record, based on instructions from the client, is not necessary.

APPLICATION Has identity of the accused been established beyond a reasonable doubt? [13] This question arises as there was no “dock identification” evidence. Rather, the Crown relies on the fact that the officersatisfied himself of the identity of the driver by reference to a photograph maintained by a government agency.

Defence argues that thisis not admissible evidence as the voluntariness of the statement made by the driver as to his name and date of birth was not established;this, in spite of his initial advice and subsequent written acknowledgement to the Court that voluntariness of statements made by theaccused were not in issue. Perhaps the suggestion from this is that the Court should have insisted on a voir dire despite the admission,but that is not particularly clear. Defence relies on R. v.

Keenan, 2012 QBCA 28, where the accused provided his name and address tothe police officer by way of a driver’s licence and the Court held that evidence was inadmissible without proof of voluntariness. However, that case is distinguishable from the matter before this Court as Justice Currie clearly indicated that the officer did not requestidentification pursuant to provincial legislation, nor did he have reason to suspect that the accused had committed an offence. In thematter before this Court, the officer was clearly empowered by s. 209.1(2)(

a) of The Traffic Safety Act S.S. c. T-18.1 to require theoperator of a motor vehicle to provide his name, address and date of birth and the voluntariness of these statements are not in issue. [14] Although there was no identification of the accused in court, I find that identity of the accused has been established. Constable Chomyn saw an individual operating a motor vehicle and properly obtained his name and date of birth. That person wasarrested and released by Constable Chomyn on an Appearance Notice.

On the date scheduled for court, counsel for the accusedappeared, entered a not guilty plea, and set the matter for trial. On the trial date, the same counsel appeared and the accused was notedto be present in court. [15] In R. v. Nicholson (1984), 1984 ABCA 88 , 12 C.C.C. (3d) 228 (Alta. C.A.) leave to appeal to the SCC refused[1984] S.C.C.A.

No. 176, the Court found that where an accused is issued an Appearance Notice, and appears in court in answer to thatAppearance Notice, the circle of identification is completed and there is no necessity for an in-court identification. [16] The Nicholson decision was considered by Nightingale J. in R. v. Chief, [2006] S.J. No. 710. In that case, police were directedto an individual identified as being responsible for mischief to property. He was arrested and provided, on request of the police officer, aname, date of birth and phone number. No verification of this information was conducted.

The individual arrested was detained untilsober, then released on a Promise to Appear, which was confirmed before a justice. A person responded to that Promise to Appear onthe date scheduled and on subsequent adjourned dates. At trial, defence argued that the evidence did not establish that the person whorepeatedly attended court was the individual arrested on the offence date and that a court cannot rely on its own process to establishidentity. [17] In a detailed decision, Nightingale J. sets forth the two sides of judicial opinion that have evolved on this issue.

The first isthat by coming to court to answer to a charge, a person acknowledges that they are the person named in the Appearance Notice orPromise to Appear, whether or not they are guilty of the offence alleged.

To submit to the jurisdiction of the court in this fashion and toargue at the conclusion of a trial that there is no proof that they are the person charged puts an unreasonable burden of identification onthe Crown. [18] The other view is that an accused person admits nothing by coming to court and the burden falls to the Crown to prove boththat the person sitting in court is the person who committed the offence and the person to whom release documents were issued. [19] In Chief (supra), the Court followed the reasoning in Nicholson (supra) and I am persuaded that this is the correct view.

Iadopt the analysis set out by Judge Nightingale in Chief at para. 18:

The Parliamentary scheme by which someone suspected of a crime is arrested, detained and released upon a promise to come to court is a complicated one, revealed in the interplay among a number of sections of the Criminal Code . It is central to the process, however, that from the moment of detention to the conclusion of the trial, the accused must be accurately identified. As Kerans J. observed in the passage from Nicholson , supra , quoted above, the provisions of the Identification of Criminals Act also contribute to the ensuring of this accuracy.

A person who is being arrested and charged with a crime, however, is also required by law to participate and contribute to the process by honestly and accurately identifying herself to the peace officer who is entitled to ask. To answer the officer untruthfully about who you are is to commit the offence of obstruction of justice, created by

section 129 of the Code . It is thus not accurate to view the role of an accused person in the criminal process as entirely passive. Being detained for, charged with and released for court in connection with the commission of a crime imposes a variety of positive obligations on the accused: to be truthful about identity to the arresting officer, to participate in being photographed and fingerprinted pursuant to the Identification of Criminals Act to reinforce the accuracy of that identity, to promise to attend court in answer to the charge and to actually attend court.

The entire process is predicated on honesty and the performance by the accused of those various obligations. If for every court appearance by every accused the state was required to prove that the same person who promised the police or a justice that he would appear is the same person who stands before the court, the criminal justice system would founder under the cumbersome burden.

If the person who attends court, rises in response when the accused’s name is called and speaks to the court in answer to the charge is thereby asserting only, “I’m here but I do not concede that I am the person who promised to come” the Parliamentary scheme is defeated and the earlier promise upon which the accused was released is rendered meaningless.

I would go further and observe that if a person who is not the accused rises in court when the accused’s name is called, pretends to be the accused and purports to deal in any way with the charge, that person would also be liable to prosecution for obstruction of justice. No obstruction would, of course, be committed by a person answering the charge on behalf of the accused who clearly identifies herself as properly instructed agent of the accused. [ 20 ] In the case at hand, a person was lawfully arrested, detained and released on an Appearance Notice by the arresting officer.

That Appearance Notice forms part of the court record and purports to be signed by the accused. On the date specified on that notice, the accused was not present but his counsel appeared, waived reading of the allegation, entered a not guilty plea and scheduled a date for trial. The accused was present on the day of trial with the same counsel. This constitutes prima facie proof of identity, and I have no doubt whatsoever that the Tyler D. Hoover named on the Appearance Notice is the same person who has stood trial.

As stated by Kerans J.A. at para. 29 of Nicholson (supra) : The person, therefore, to whom he gave the appearance is the person whom we call the accused. And, on Beach’s eyewitness testimony, the person to whom he gave the appearance notice was the offender! The circle of identification is complete: the accused is the offender. With respect, this is the only inference available in these circumstances. This is so, I might add, whether the accused is or ever was called John Robert Nicholson.

Is the Certificate of Disqualification or Prohibition admissible? [ 21 ] A prerequisite to admission of such a certificate is that notice be provided to the accused that the Crown intends to tender the certificate at the trial of the matter: see s. 260(6) of the Criminal Code . I am satisfied that such notice can be given to counsel of record without proof that counsel is consenting to the receipt of such notice: see R. v. Vollman , 1989 CarswellSask 17 (Sask. C.A.) .

In Vollman , a letter was sent to counsel of record setting out the intention to tender a certificate, a copy of which was enclosed with the letter, as evidence at trial. The sole issue was whether a letter to counsel constituted proper notice within the meaning of s. 260(6) of the Criminal Code . Although not explicitly stated in the decision, it appears to have been acknowledged that counsel did receive the letter, but argued that it did not amount to “notice in writing...given to the accused”.

The Court of Appeal held that notice to counsel was proper notice. [ 22 ] In the case at hand, the Notice of Intention appears beneath the Certificate of Disqualification or Prohibition (P-1) and states as follows: Notice of Intention to Tender Certificate: To: Ron Piché of Saskatoon, SK. Take notice that, pursuant to sections 260(5) and (6) of The Criminal Code Canada, the prosecution intends to tender in evidence a certificate, a copy of which appears above.

DATED this 7 th day of April, A.D. 2014. _________________________________ “Signature of the person serving the Notice for the Prosecution.” [ 23 ] On Exhibit P-1 a signature appears on the signature line but there is no indication as to whom the signature belongs. There is no affidavit or viva voce evidence before the Court about who signed this notice or whether it was actually provided to Mr. Piché. Unlike Vollman (supra) , counsel has not acknowledged receipt of the notice, nor was there any inquiry as to whether he was prepared to admit receiving such notice.

Counsel for the Crown asserted in argument that defence counsel was provided notice in the usual way and noted that counsel for the accused is not denying that it was received. However, in order to rely on s. 260(5) , the onus remains with the Crown to establish that proper notice was given either to the accused or his counsel. This might take the form of viva voce or affidavit evidence from the person effecting the service, or an admission of service from counsel. However, without any such proof, the Court cannot be satisfied that the notice requirement has been fulfilled.

Without compliance with s. 260(6) , the certificate is not admissible in evidence. [ 24 ] The Crown also tendered a letter from SGI setting out the fact of a disqualification for driving and the dates on which Tyler Donald Hoover might again become eligible to obtain a driver’s licence. This would be admissible pursuant to s. 30 of the Canada Evidence Act provided notice has been given in accordance with s. 30(7) of the Act . Again, there is no proof that such notice was given. [ 25 ] The only other evidence of disqualification comes from the statement made by the accused to Constable Chomyn.

However, although the accused admitted knowledge of his licence disqualification, there is no evidence before the Court as to the nature of that disqualification and no basis from which the Court can conclude that a s. 259 offence had been committed as opposed to a violation of The Traffic Safety Act . [ 26 ] Accordingly, the Crown has failed to establish that the accused was disqualified or prohibited from driving and therefore, the accused is found not guilty. ____________________ M.L. Gray, J