R. v. McKee, 2014 MBPC 26

CITATION: R. v.

McKee , 2014 MBPC 26 Date: 20140623 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Colin Soul, ) for the Crown ) and ) ) ) Timothy McKee ) Mark Wasyliw, Accused ) for the Accused ) ) ) Reasons for Decision delivered ) June 23, 2014 ) Chapman P.J. [ 1 ] The issue in this case is whether or not the Crown can tender a Certificate of the Registrar of Motor Vehicles at the trial of Timothy Sean McKee with respect to a charge under s. 225(1) of The Highway Traffic Act of Manitoba without having provided notice of his intention to do so. [ 2 ] The trial with respect to this matter took place on the 25th of February, 2014.

At that time Mr. McKee, through his counsel, objected to the Certificate of the Registrar dated June 4 th , 2012 being admitted into evidence as notice of intention pursuant to the Canada Evidence Act had not been provided. The matter was adjourned for the filing of written argument on the point and for my decision. Statement of Facts [ 3 ] On May 25 th , 2012 police detected that the licence plate of the accused was inactive. [ 4 ] The police pulled the vehicle over and upon speaking with the accused suspected that the accused might have consumed alcohol.

He also discovered the accused’s driver’s licence was suspended. [ 5 ] The police asked the accused to provide a breath sample and the accused complied. [ 6 ] After numerous attempts the accused provided an adequate sample. The accused was charged with impaired driving, drive over .08 and Highway Traffic Act offences of driving while disqualified and driving an unregistered vehicle. [ 7 ] The matter appeared for trial on the 25 th of February, 2014. It was held at that time that the breath test was not performed as soon as practicable and the accused was acquitted on the drive over .08 charge.

The drive impaired charge was stayed as was the

unregistered vehicle charge. [8] The Crown wished to tender a Certificate from the Registrar indicating the accused was disqualified from driving at that pointin time. The Certificate of the Registrar was provided to the accused through counsel well in advance of the trial of this matter, but nonotice of intention to produce that certificate in evidence was given. Argument [9] Counsel for Mr.

McKee submitted orally in argument and then by written argument that the failure of the Crown to providenotice of intention to tender the Certificate of the Registrar is inadmissible for three reasons: • Firstly, that the admission of the document without notice is inconsistent with the Charter of Rights and Freedoms; • Secondly, that it is inadmissible based on the principle of “legality”; and, • Thirdly, that the document itself is a “business record” as per the Manitoba Evidence Act and therefore seven days notice isrequired pursuant to s. 49(1) of that Act. (In argument counsel for the accused referred to the Act in question as the Canada EvidenceAct but I am assuming that this was a typographical error as clearly the applicable Act, if any, would be the provincial legislation). [10] On the issue of s. 49(1) of the Manitoba Evidence Act, this Court is bound by the decision of The Queen v.

Johnson, [1991]MBQB, where Associate Chief Justice Oliphant (as he was then) held: Taking into account all of the submissions made before me I am drawn to the conclusion that the certificate of the Registrar of the MotorVehicle Branch is not a document that is covered by the provisions of

Section 49 of The Manitoba Evidence Act. In my view thecertificate, particularly, is not a writing or record as referred to in Sub-section 2 of 49. ...even if the record in question were a business record...notice would not be required because of the provisions of Section 49(3). [11] On the issue of the principle of “legality”, counsel for the accused argued that the failure to give notice of intention to produce acertificate into evidence violates this principle as it does not “allow the individual to know in advance that their conduct is illegal”.

Here,counsel argued that the accused’s right to full answer and defence is compromised because of the lack of notice and that if theLegislature’s intention is to remove someone’s rights it must be done expressly. [12] Associate Chief Justice Oliphant, however, deals with this issue as well in The Queen v. Johnson decision wherein he says: It’s my view that the provisions of

Section 324 of The Highway Traffic Act have to be complied with strictly. It’s my view that if theLegislature intended that notice of the intention to tender in evidence such a certificate was to be required, the positive duty to servenotice should have been included in legislation as it is in other sections of The Highway Traffic Act to which I have referred, namely, thesections that require notice of suspension to be given,... [13] Counsel for Mr.

McKee finally argued that the accused’s right to make full answer and defence and his right to a fair trial wouldbe breached if this Court was to allow the admission of the Certificate into evidence. Counsel referred to the decision of R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411, at paragraph 104. The Court held: One of the Charter values to be weighed is the "right" to disclosure, which is in reality an adjunct of the s. 7 right to make full answer anddefence.

Though the right to full answer and defence is generally asserted in the context of material non-disclosure by the Crown, wemust recall that a purposive approach to the Charter requires that due consideration also be given to the effect of the exercise ofdiscretion on an individual's rights.

In particular, an effects-oriented approach to s. 7 dictates that when an accused is unable to make fullanswer and defence to the charges brought against him as a result of his inability to obtain information that is material to his defence, it isof little concern whether that information is in the hands of the state or in the hands of a third party. The effect is still potentially todeprive an individual of his liberty while denying him the ability to make full answer and defence. [14] Counsel for the accused argued that the accused was denied the opportunity to properly prepare for the case set out by theCrown.

He said the lack of notice denied him his right to make a full answer and defence. He said that notice should be required unders. 324 of The Highway Traffic Act despite the fact this

section does not explicitly require it. He says that this is an ambiguity and shouldbe resolved in a manner that complies with the Charter. [15] However, in this matter, the accused was provided with full disclosure which included a copy of the Certificate from the Registrar that the accused was disqualified from driving on the 25th of May of 2012. The accused was made aware of the case againsthim and therefore the present case is distinguishable from that of R. v. O’Connor wherein the information being relied on by the Crownhad not been disclosed.

The accused had and continues to have the ability to fully challenge the validity of the Certificate on its meritsand as a result the applicant has been given an opportunity to make full answer and defence. [16] Based on the above, the Court orders that the Certificate of the Registrar is admissible in evidence in these proceedings. Original signed by Judge S. L. Chapman P.J.