Her Majesty the Queen - v. -, 2013 SKPC 141

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 141 Date: August 19, 2013 Information: 24429072 Location: North Battleford _____________________________________________________________________________ Between: Her Majesty the Queen - and - Kyle Frank Dillabough Appearing: Brenda Korchinsky For the Crown Michael Owens For the Accused TRIAL DECISION D.J. KAISER , J [ 1 ] Mr. Dillabough is charged with impaired driving and driving while having a blood alcohol level greater than 80 milligrams of alcohol in 100 millilitres of blood.

The evidence of impairment is inadequate to prove impairment to the requisite degree. The impaired count is dismissed. [ 2 ] Pertaining to the “over 80” count, the sole remaining issue in this case is whether the Crown has established to the requisite degree that reasonable notice of its intention to enter the Certificate of Analyses in evidence has been given to the accused, as called for in ss. 258(7) of the Criminal Code .

[ 3 ] The general facts giving rise to the current charges are dealt with in an earlier written decision dealing with Charter applications. That decision is found at 2013 SKPC 76 . [ 4 ] Section 258(7) provides: No certificate shall be received in evidence pursuant to paragraph (1)(e), (f), (g), (

h) or (

i) unless the party intending to produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate. [ 5 ] The main testimony specific to the present issue arose during examination-in-chief of the arresting officer, Cst. Adam Olson and is as follows: Q. And I have what, I’ve got an, looks like an original Certificate of Analyses? A. Correct. Q. Is that document familiar to you? A. Yes, this is original copy of the Certificate of Analyses that was completed by Joy Prince and that was signed by her and myself after I served it. Q.

Kay, and what did you serve on Kyle Dillabough? A. It would have been an exact copy of this. Q. And how could you tell that it was an exact copy? A. They’re carbon copies from underneath and then they were compared to the original, as well, to confirm that everything was the same. Q. And did you do that? A. Correct. The original Certificate of Analyses, being the document examined by Cst. Olson in his testimony was then marked as exhibit P-2 on the voir dire and as exhibit P-1 for identification in the trial.

At the point of marking the exhibit, defence counsel asked if the Court had a clock pertaining to the sound recording equipment. I informed him that we did not have that available, given that we were at a circuit point and not at the Court’s home location. At that point it was clear to me that defence counsel’s finely tuned ears had detected the sweet sound of an unexpected possible defence. I heard the words spoken by the witness. I do not think that Crown counsel heard the witness’ specific words, or at least, heard them in the same way that defence counsel and I heard them.

Not surprisingly, defence counsel did not cross-examine Cst. Olson on the subject of the serving of the notice. [ 6 ] The document bears what appears to be the actual signature of Corporal Prince as qualified technician. At the foot of the front page there is the usual Notice of Intention to Produce Certificate. The accused’s name and address are entered in handwriting, the date is handwritten and there is a signature that appears to be that of Cst. Olson. Below that signature are the printed words “Signature of the person serving this Notice for the Prosecution”.

The draft Affidavit of Service on the back of the document is not filled out in anyway. It is this document that Cst. Olson held in his hands as he answered Crown counsel’s question “...and what did you serve on Kyle Dillabough?” with the words “It would have been an exact copy of this.” If he in fact served an exact copy of the document that he held in his hands, the document served would include the signatures. [ 7 ] The problem arises through Cst. Olson’s use of the word “after” in the testimony quoted above. As written above it indicates that the signatures went on the original after it was served.

Crown counsel submits that the testimony should be heard and read as if there was the punctuation mark, known as a period, between the word “myself” and the word “after”. If taken in this way, it would mean that after the document was signed, it was served. This meaning is consistent with the officer’s subsequent words “It would have been an exact copy of this.”

[8] I have listened to this evidence on several occasions. I do not note a pause of any kind between the word “myself” and theword “after”. One would expect such a pause, if the officer intended to convey the beginning of a new sentence. [9] The question of whether the written notice was signed prior to service is not necessarily the only evidence or consideration indetermining whether reasonable notice has been given. The words at the foot of the document read: Notice of Intention to Produce Certificate To: Kyle F. Dillabough of Wilkie, Saskatchewan Take notice that pursuant to clause 258(1)(

g) and subsection 258(7) of the Criminal Code (Canada), the prosecution intends to producein evidence a certificate, a copy of which appears above. Dated the 08th day of October, A.D. 2011. “Adam Olson” Signature of person serving this Notice for the Prosecution. It is significant that this portion of the document was personalized to Mr. Dillabough, both as to name and residence, and had a datehandwritten on it that was the date upon which it was handed to Mr. Dillabough. Therefore, even if the copy given to Mr.

Dillaboughwas unsigned, it would still convey meaning to the recipient. [10] Further, throughout this matter, the accused has been represented by experienced defence counsel who specializes in the areaof alcohol related driving offences. As well, but obviously related, the factual reality is that disclosure has taken place. During cross-examination, defence counsel made various references to the disclosure. As well, on November 21, 2011, defence counselacknowledged in open court that he had received the disclosure. To what extent and in what way, if any, can the notice requirement besatisfied through disclosure?

Notice under ss. 258(7) and Disclosure [11] This subject was addressed in R. v. Oslowski, 2006 ONCJ 488, by Duncan J. which decision is cited in McWilliams Canadian Criminal Evidence, 4th Edition, at paragraph 21:40:40. In it, the learned judge held that the fact of disclosure in itself puts counsel onnotice that the Crown may seek to enter any of the evidence contained in the disclosure. The relevant portion of the judgment runs fromparagraph 28 to 37, inclusive. In paragraphs 31 to 37 he wrote: [31] Reasonable notice is a concept, not a document: R. v. Spreen, (1987), 1987 ABCA 189 , 40 CCC (3d) 190 (Alta.

C.A.). As a concept, it is capable of evolution and must be considered in the existing legal context. That context includes the advent of fullpre-trial disclosure of all relevant evidence to the defence. Such disclosure substantially if not wholly fulfills the purposes that thisprovision, rooted in the pre-disclosure era, was designed to serve: see R. v. Balen (2003), 30 MVR (4th) 1, aff’d 39 MVR (4th) 94. Afurther legal development is the decision of the Court of Appeal in R. v. MacKinnon, (ON CA), [2003] O.J.

No.3896, clarifying that reasonable notice is a question to be determined on the balance of probabilities, and not proven beyond a reasonabledoubt. It seems to me that these two developments render much of the earlier case law obsolete and certainly warrant a departure from

the punctiliousness of former days. [32] Having said that, there are a number of relevant principles from the decided cases under this and similar provisions in otherstatutes: Notice need not be in writing: R. v. Bowles (1974), (ON CA), 16 CCC (2d) 425 (Ont. C.A.). Notice need notbe formal in any way: R. v. Penno (1977), 35 CCC (3d) 266 (BCCA). Notice may be given to counsel or counsel’s representative: R. v.Meyer (1976), (BC CA), 29 CCC (2d) 165 (BCCA).

Notice is directed to alerting the other party as to the possibility,not the certainty, that a certificate will be used – it is notice that the certificate may be used in evidence: R. v. Good et al (1983), 1983ABCA 141 , 6 CCC (3d) 105 (Alta. C.A.). [33] Further, there is a consistent line of authority holding that, where no notice at all has been given, the tendering of a certificate at apreliminary inquiry provides sufficient compliance with the notice requirement: R. v. Kwok (2002), 2002 BCCA 177 , 164 CCC(3d) 182 (BCCA); R. v. Chang (1996), 102 CCC (3d) 87 (BCCA); R. v.

Norris (1993), (BC CA), 57 W.A.C. 133(BCCA); R. v. Penno, supra; R. v. Cordes (1978), 1978 ALTASCAD 94 , 40 CCC (2d) 442 (Alta. C.A.) and most recently R. v.Dillon, [2005] O.J. No. 2516 Hill J. Since no notice per se was given in any of those cases, it is apparent that those cases haveinterpreted the

section as meaning “put on notice”. In other words, nothing, written or verbal has to be specifically “given”. [34] Finally, whether reasonable notice has been given is a question of fact: R. v. Morrison (1982), (NB CA), 70CCC (2d) 193 (NBCA per LaForest JA). This is important because, as a question of fact, its resolution is a matter of reason, logic,common sense and experience applied to evidence, and not a matter of precedent.

Further, like all facts, it can be established by directevidence or inference. [35] Accordingly, the issue becomes whether the court is satisfied on a balance of probabilities by direct evidence or by inference that,one way or another, the defendant or his counsel was reasonably put on notice that a certificate might be used at his trial. The shortresolution of that issue in this case is that I am satisfied that, on the night of the breath testing, the arresting officer did provide notice ofintention to the defendant at the same time that he served the certificate of analysis itself.

While his notes were not specific, it is my viewthat it is more likely than not that the notice of intent given at that time was in relation to the concurrently served certificate and not inrelation to the breach of probation charge. [36] Further, quite apart from the above, it is my view that the service of the certificate itself on a defendant represented by counselsatisfies the test as set out above. After all, in any other case where a defendant represented by counsel receives a package of disclosure,it goes without saying that it is understood that the material may be presented in evidence.

Why should the understanding be anydifferent here? Add to this understanding the fact that proof by certificate is a routine procedure and the certificate’s admissibility asevidence is clearly set out in a well-known statutory provision, and the conclusion is inescapable that the test for notice has beensatisfied. [37] It might be argued that the above reasoning has the effect of reducing a two-pronged requirement in the

section into one - andtherefore must be incorrect. However, I am not suggesting that the giving of the certificate in itself will always be sufficient. The findingthat notice was given here is case and fact specific, though the pivotal fact is the representation by counsel, a fact that will frequently bepresent.

If I have properly interpreted the question to be asked as per the above, then the fact that one step can satisfy both requirementsin the circumstances of this and some other cases, is a matter of no concern and does nothing to diminish the requirements of the section. [12] Oslowski was consider by Durno J. in R. v. Basi, 2011 ONSC 116. Duncan J. (the judge who wrote Oslowski) was the trialjudge in Basi and followed his decision in Oslowski in deciding that notice had been given in the latter case. The accused appealed.

Durno J. dismissed the appeal holding that the finding that reasonable notice was given was supported by direct evidence and byinference. [13] In R. v. Sullivan, 2012 SKQB 138, Madam Justice Wilson, sitting as a

summary conviction appeal judge addressed thequestion of whether or not notice under ss. 238(7) had been proven. The facts and the specifics of the issue were different from those inthe present case, but the overall question was much the same as in the present matter. In dismissing the defence appeal she wrote asfollows at paragraph 17: Mr. Sullivan would have received disclosure of the document that became Exhibit P-1 prior to trial. He would have been well aware thatExhibit P-1 included the Certificate of Analyses, the Notice of Intention to Produce Certificate and the Statutory Declaration of Service.Mr.

Sullivan had the right to object to the introduction into evidence of Exhibit P-1 when it was tendered. He did not do so. Further, hehad the right to call evidence regarding service of the Notice if he wanted to challenge the reasonableness of the Notice. He did not do so. [14] Nothing in the judgment expressly states the basis upon which the learned

summary conviction appeal judge concluded thatthe accused (and in the circumstances, his counsel) would have received disclosure, or what the disclosure would have contained. In myview the basis for these findings is that disclosure is now standard practice and can be assumed to have taken place in the absence ofevidence otherwise. That position is certainly consistent with the judgments of Judge Duncan in Oslowski and Mr. Justice Durno inBasi.

[15] I conclude that the Court can take into account the current reality of disclosure in deciding whether the notice requirement issatisfied.

In general I adopt the formulation of the question set out by Judge Duncan in paragraph 35 of Oslowski being “... whether thecourt is satisfied .... by direct evidence or by inference that, one way or another, the defendant or his counsel was reasonably put onnotice that a certificate might be used at his trial.” I have removed from this formulation the reference to “on a balance of probabilities”because I am of the view that there is a serious contest as to the applicable burden.

Is the applicable burden the civil burden or the criminal burden? [16] At the present time there is inter-provincial and intra-provincial disagreement as to the applicable burden. In Ontario theleading authority is the Court of Appeal decision in R. v. MacKinnon, (ON CA), [2003] O.J. No. 3896, in which itwas stated that the civil burden applies. Not surprisingly, the universal approach in that province is to apply the civil burden, as can beseen in cases like Oslowski and Basi. [17] In Alberta there are conflicting Queen’s Bench authorities. In R. v. Redford, 2012 ABQB 768, decided November 22, 2012,Mr.

Justice Macklin held that the criminal burden applies. In R. v. Angus, 2013 ABQB 195, decided June 20, 2013, Mr. Justice Leeacknowledges the Redford decision, but holds that the applicable burden is on a balance of probabilities. Both cases list other conflictingauthorities. The root of this disagreement lies in the view taken of Tackling Violent Crime Act, SC 2008, c 6, focusing on itsamendments to the various presumption provisions in ss. 258(1) of the Criminal Code and their relationship to the principles set out in R.v. Egger, (SCC), [1993] 2 SCR 451 and in particular paragraph 32 (as per Mr.

Justice Sopinka) which reads: I have referred to the fact that the criminal standard of proof applies. When notice is given by means of service of the CQT, there willusually be no difficulty in meeting this standard. It may assume greater significance in a case such as this in which notice is alleged tohave been given orally or by means other than service of the CQT. While proof on a balance of probabilities is an acceptable standard indeciding a preliminary question of fact with respect to the admissibility of evidence (see R. v.

B. (K.G.), (SCC), [1993]1 S.C.R. 740), the general rule with respect to determination of vital issues in the criminal process requires proof beyond a reasonabledoubt. See R. v. Gardiner, (SCC), [1982] 2 S.C.R. 368, at p. 415. The issue here is very different from a question ofadmissibility of evidence. The effect of satisfying the burden of proving preliminary facts to the admissibility of evidence is only thatthe evidence is admitted: it determines neither the weight of the evidence nor the guilt of the accused. This occurs in the next step in theprocess during which the Crown must satisfy its legal burden.

When admission of the evidence may itself have a conclusive effect withrespect to guilt, the criminal standard is applied. This accounts for the application of this standard with respect to the admission ofconfessions (see Ward v. The Queen, (SCC), [1979] 2 S.C.R. 30, at p. 40, per Spence J., for the Court, and Rothman v.The Queen, (SCC), [1981] 1 S.C.R. 640, at pp. 670, 674-75, per Martland J., for the majority, and at p. 696, per Lamer J.(as he then was), concurring).

Establishing the facts which trigger a presumption with respect to a vital issue relating to innocence orguilt is a step further advanced than the admissibility of evidence and is only reached after crossing the hurdle of admissibility. Theeffect of the presumption in this case is to provide conclusive proof of the accused's blood alcohol concentration at the critical time, inthe absence of evidence to the contrary. This conclusion respecting the application of the criminal standard is supported by the viewwhich has been taken relating to the presumption which arises by virtue of s. 258(1)(a). In R. v.

Appleby, (SCC), [1972]S.C.R. 303, confirmed in this regard by R. v. Whyte, (SCC), [1988] 2 S.C.R. 3, per Dickson C.J., at p. 13, it wasaccepted that "[t]he presumption was included to allow the Crown to prove care or control by proving beyond a reasonable doubt that theaccused occupied the driver's seat". [18] In Saskatchewan the assumption seems to be that the criminal burden applies. I am not aware of any case in this provincewhere the question of the appropriate burden has been addressed. Examples of cases where the merits were assessed on the criminalburden include inter alia: R. v. Glass (Sask.

C.A.), (SK CA), [1973] 5 W.W.R. 761, 12 C.C.C. (2d) 450 R. v. McDonald, 2013 SKPC 132, at para. 59 R. v. Sedley, 2013 SKPC 59, at para. 6 R. v. Sullivan, (supra), at para. 1 R. v. Stewart, 2012 SKPC 39, at para. 48

R. v. Tetz , 2011 SKPC 107 , at para. 20 R. v. Spilde , 2011 SKPC 97 , at para. 28 R. v. Wolfe Vogel , 2010 SKPC 185 , at paras. 4 , 8, and 11. I have found no Saskatchewan case where the civil burden was applied. [ 19 ] With great respect for those who hold the contrary opinion, I am of the view that given the present state of the presumptive paragraphs of ss. 258(1) , the criminal burden applies. Once a finding of compliance with ss. 258(7) is made, the certificate becomes evidence, and then paragraph 258(1) (

c) is engaged so that “evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed...”. Thus in the considerable majority of cases, including the present case, admitting the certificate will directly result in a finding of guilt. I recognize that there are exceptions, but these are quite limited. When I look at the present provisions within the context of paragraph 32 of Egger , above quoted, I note that Mr.

Justice Sopinka used the phrase “conclusive effect” at one point and later in the paragraph in support of the finding that the criminal burden applied wrote “The effect of the presumption in this case is to provide conclusive proof of the accused's blood alcohol concentration at the critical time, in the absence of evidence to the contrary.” (Underlining Added.) “Conclusive proof” is the very phrase used in paragraph 258(1) (c). I also note that at the time that the Ontario Court of Appeal issued its judgment in MacKinnon , the phrase in 258(1)(

c) was not “conclusive proof” but rather “evidence of the results of the analyses so made is, in the absence of evidence to the contrary, proof of the concentration...”. It is entirely possible that if the Ontario Court of Appeal looked at these provisions in light of the present state of the legislation, it might come to a conclusion that reverses MacKinnon . Findings of Fact and Application of Law to the Facts [ 20 ] I have concluded that Cst.

Olson’s use of the word “after” in the passage earlier quoted was most probably a slip of the tongue and that the document was fully signed before it was given to the accused. However, I am not convinced of this beyond a reasonable doubt. Accordingly, if I am wrong in concluding that the criminal burden applies, and that therefore the proper burden is the civil burden, proof of compliance with ss. 258(7) has taken place and a finding of guilt would result. However, the reverse is not necessarily true.

If proof beyond a reasonable doubt of reasonable notice is established by some other or additional evidence or inference, the certificate would still be admitted. [ 21 ] I turn then to consideration of the propositions put forth in Oslowski , Basi and Sullivan. First of all, in Oslowski , in paragraphs 36 and 37 , Duncan J. holds that service of a copy of the certificate on an accused who is represented by counsel will generally constitute notice. Again in paragraph 36 he writes.

Further, quite apart from the above, it is my view that the service of the certificate itself on a defendant represented by counsel satisfies the test as set out above. After all, in any other case where a defendant represented by counsel receives a package of disclosure, it goes without saying that it is understood that the material may be presented in evidence. Why should the understanding be any different here?

Add to this understanding the fact that proof by certificate is a routine procedure and the certificate’s admissibility as evidence is clearly set out in a well-known statutory provision, and the conclusion is inescapable that the test for notice has been satisfied. In the present case the document that Cst. Olson gave to the accused probably was fully signed, but if it was not, then it certainly included a true copy of the Certificate of Analyses. It may have not included Cpl. Prince’s signature but as was established in R. v. Glass (Sask. C.A.), ( supra), that does not mean it was not a true copy.

The document is a true copy if it is true in all essential particulars, which would have been the case here. Further, the notice portion was specifically addressed to the accused by name and residence. I am satisfied that a lawyer looking at this kind of document would clearly understand the Crown intended to use it in evidence. The fact that defence counsel would argue that it should not be allowed and might be uncertain of the outcome of that argument, does not change the obvious intent.

This alone satisfies me beyond a reasonable doubt that the reasonable notice as required by ss. 258(7) was given to the defence, and that accordingly, the Certificate of Analyses should be and is admitted into evidence. [ 22 ] Further, I am satisfied that defence counsel did receive disclosure. He acknowledged this in open court on November 21, 2011, and it was clear from the cross-examination that this was the case. Hence I am not in the position that Madam Justice Wilson appears to have been confronted with in Sullivan , of concluding that disclosure would have taken place, because that is standard

practice. I do not see the position that she was in as problematic. It is clear in Oslowski and Basi , that this is a reasonable inference to draw where the accused is represented by counsel. [ 23 ] I do not have direct evidence that the disclosure contained a true copy of the certificate and the notice. However, this is something that I can infer, just as Madam Justice Wilson did. I do so infer. I also note that defence counsel at no time took the position that he did not have disclosure of the certificate or of the notice.

This counsel has never shied away from advising the Court of disclosure shortcomings, having done so on many occasions. His argument on admissibility is simply that the possible absence of the signatures means that the crown has not proven reasonable notice. Hence I am also convinced beyond a reasonable doubt that a complete copy of Exhibit P-1 was given to defence counsel as part of the disclosure and that this satisfies ss. 258(7). [ 24 ] P-1 for identification is now made a full exhibit. Paragraph 258(1)(

c) is engaged with the result that I find that the accused was driving his motor vehicle on the date in question while having a blood alcohol level of 210 milligrams of alcohol in 100 millilitres of blood. [ 25 ] I find the accused guilty on Count 1 of Information 24429072 and not guilty of Count 2. [ 26 ] Dated the 19 th day of August, 2013 in the City of North Battleford, Saskatchewan. D.J. Kaiser, J