Her Majesty the Queen - v. -, 2011 SKPC 82

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 082 Date: May 19, 2011 Information: 24372215 Location: North Battleford, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Michael Grondin Appearing: Michel Piché For the Crown Michael Owens For the Accused JUDGMENT V. H. MEEKMA, J INTRODUCTION [1] The accused is charged with .08 and impaired driving. After hearing evidence on the voir dire, I made an interim ruling onFebruary 10, 2011, admitting the Certificate of Analyses into evidence (2011 SKPC 32 , 2011 SKPC 032).

At the conclusion ofthe trial, the defence argued that the Crown has not proven beyond a reasonable doubt that the accused, Michael Grondin, was the personnamed in the Certificate of Analyses.

BACKGROUND [2] By agreement, the Crown evidence on the voir dire was admitted at the trial. The accused testified in the voir dire, but hisevidence is not part of the trial evidence. Before closing its case, the Crown recalled the investigating officer to testify briefly withrespect to jurisdiction. The accused elected not to call evidence at the trial. [3] The Certificate of Analyses states that the samples were taken from a person identified to the technician as “Edward MichaelGrondin”. The attached Notice of Intention to Produce Certificate and Affidavit of Service also refer to “Edward Michael Grondin”.

TheC-13 form and the Information refer to the accused as “Michael Grondin”. [4] The defence argues that there must be strict compliance with the statutory provisions of s. 258(1)(

g) of the Criminal Code inorder for the Crown to rely on the Certificate of Analyses as proof of the facts in the certificate and that the certificate should not beadmitted into evidence. [5] The Crown relies on evidence at the trial to establish that the accused is the same person who provided the breath samplesreferred to in the Certificate of Analyses.

The Crown also points to how the accused identified himself when testifying on the voir dire,however, I agree with the defence that the voir dire evidence cannot be considered by the Court as the accused testified for the purposesof the voir dire only. [6] The Crown further asks the Court to amend the name of the accused on the Information from “Michael Grondin” to “EdwardMichael Grondin” in order to conform with the evidence.

The defence argues that should not be allowed after the Crown has closed itscase and the defence has elected not to call evidence, as the defence would be prejudiced by the amendment at this stage of theproceedings.

ISSUES [7] I have identified the issues as follows: 1) Can other evidence be considered to supplement or correct the information in the Certificate of Analyses? 2) Is the Certificate of Analyses admissible? 3) Has the Crown proven beyond a reasonable doubt that the accused is one and the same as the person named in the Certificate ofAnalyses as Edward Michael Grondin? 4) Can and should the name of the accused on the Information be amended to conform with the name on the certificate? ANALYSIS [8] R. v.

Teague (1972), (BC CA), 11 C.C.C. (2d) 191 (B.C.C.A.), held that after the certificate is admitted,the Court determines on the whole of the evidence whether the conditions are met, such as whether the sample was taken as soon aspossible, on an approved instrument, et cetera, in order that the results be considered proof of the alcohol concentration at the time of theoffence. [9] In R. v. Shadoff, [1993] O.J. No. 534 (Ont. Ct. Gen. Div.), the Court held that the issues of admissibility and the weight ofthe evidence are separate issues.

Ambiguity in the time that the test was taken went to the weight of the evidence.

[10] Shadoff, supra, was relied on in R. v. Rebelo, [2003] O.J. No. 4634 (Ont. Superior Court of Justice), another case dealing withan erroneous recording of times. The Court states at para. 19: “...the issue is not the admissibility of the certificate, but the use that can bemade of it”. [11] Rebelo, supra, referred to conflicting decisions from Saskatchewan: Anderson v.

The Queen (1981), 13 M.V.R. 157 (Sask.Q.B.), which held the certificate was admissible and could be relied upon for the presumption where the error was typographical (thetime was indicated as “p.m.” rather than “a.m.”) and could be corrected by viva voce evidence from someone other than the technician.The Saskatchewan District Court in R. v.

Berehula (1980), 9 M.V.R. 25, excluded the certificate as the technician was not called tocorrect the error (see para. 34 of Rebelo). [12] The Alberta and Manitoba authorities referred to in Rebelo, supra, permit the certificate to be admitted if it is corrected, theaccused is not misled, and the accused is not prejudiced (paras. 30 and 31). The case of R. v. Bynowski (1980), 1980 ABCA 220, 54 C.C.C. (2d) 398 (Alta.

C.A.), is noted, where the date in the certificate was an incorrect year, but the certificate wasadmissible as the obvious typographical error was corrected by the evidence of the investigating officer.

The technician was not the onlyone who could “correct” the certificate with viva voce evidence (see para. 30). (Note that in Bynowski the investigating officer also waspresent when the samples were taken.) [13] The findings in Rebelo, supra, are summarised in the headnote as follows: The case law favoured a pragmatic approach when dealing with certificates that contained omissions or typographical errors, providedthat an accused was not prejudiced and the error was manifest, based on all of the evidence.

The admission of the certificate was not anall or nothing proposition, in which all of its elements had to be admitted. A portion of the certificate could be relied upon. The evidenceincluded in a certificate was not the only evidence that a trier of fact could rely upon. It was after all of the evidence was heard that ajudge had to conclude whether the certificate was evidence of its contents. Extrinsic evidence could be relied upon to support thecertificate. The judge did not err in admitting the certificate. [14] Rebelo was applied in R. v. Furlano, [2007 ] O.J. No. 3730.

In Furlano, the certificate did not state the year of the test.Circumstantial evidence established the year of testing and evidence from the breath technician established the date. I quote from theheadnote: Such external evidence was permitted to supplement the certificate to clarify any omission or ambiguity, as it would not mislead orprejudice the accused. [15] In the Alberta case of R. v. Ryden (1993), 1993 ABCA 356 , 86 C.C.C. (3d) 57 (Alta. C.A.), referred to in para. 30 ofRebelo, supra, the name of the accused was misspelled in a Certificate of Analyses and in the Notice of Intention.

The Court held that theerror in the certificate fell within the category of typographical errors which were corrected by viva voce evidence and was not of such anature as to have misled the accused or interfered with his right to make full answer and defence. [16] Ryden, supra, at para. 15 makes reference to the Supreme Court of Canada decision in R. v. Cote (1977), (SCC), 33 C.C.C. (2d) 353, as quoted in Bynowski, as follows: ...the golden rule is for the accused to be reasonably informed of the transaction alleged against him, thus giving him the possibility of afull defence and a fair trial.

When, as in the present case, the information recites all the facts and relates them to a definite offenceidentified by the relevant

section of the Code, it is impossible for the accused to be misled. To hold otherwise would be to revert to theextreme technicality of the old procedure. [17] R. v. Larson (1971), (AB CA), 3 C.C.C. (2d) 537 (Alta. Supreme Court, Appellate Div.), involved acertificate of blood analysis which did not state that it was the blood of the accused which was analysed. The Court stated that it isnecessary for the Crown to prove that the blood analysed is that of the accused, and if not admitted, the Crown would have to callevidence to show that the sample in the analyst’s certificate was the blood of the accused.

It is not necessary for the certificate to namethe accused, but it must identify the sample analysed so that such sample may be shown by other evidence to be the blood of the accused.

[ 18 ] Larson, supra , was applied in R. v. Smith , [1980] B.C.J. No. 843 (B.C.S.C.) , where it was argued that there was no admissible evidence that the accused was the person whose breath was sampled as set out in the Certificate of Analyses. From para. 8: “In other words, there was no evidence adduced that the person identified as James Albert Smith in the certificate was one and the same person as the accused.” The Court noted that it is incumbent on the Crown to prove the samples analysed were from the accused (para. 9), and quoted from R. v.

Iwanyshyn (1976), W.W.D. 170 at para. 11: The certificate is prima facie evidence that identification was made. The identification of the accused is not a prerequisite to the admission of the certificate. [ 19 ] The Court found there was sufficient evidence that the person named in the certificate was the accused, as follows: I now turn to the facts. According to the certificate of analysis [sic] the first sample was taken at 6:35 p.m. and the second was taken at 6:51 pm [sic].

The provincial Court Judge found that James Albert Smith and Constable McAree left the breathalyzer room at approximately 6:54 o’clock in the afternoon and went to the Detachment Office. Constable McAree and James Albert Smith remained alone in the Detachment Office until just prior to 7:35 o’clock in the afternoon. Staff Sergeant Monk entered and gave to Constable McAree a certificate of analysis [sic] which was subsequently served on James Albert Smith.

After consideration of those facts, it would appear there was some evidence before the learned provincial Court Judge that the person named in the certificate was one and the same person as the accused. [ 20 ] In the case at bar, there is evidence from the investigating officer, Constable Jaszczyszyn, which identifies the accused, Michael Grondin, as the person who gave the breath samples noted in the Certificate of Analyses filed. Constable Jaszczyszyn identified the accused. He brought the accused to Constable Lauriault, the breath technician. He sat with the accused until the samples had been provided.

He remained with them throughout. He witnessed the accused provide the samples.

At page 26 of the transcript, Constable Jaszczyszyn is asked, “Is he the same or a different person than the one who provided the sample to Constable Lauriault?” and he answered, “If you’re referring to the accused Michael Grondin, he is the same person.” He further states: “This was the only sample we were taking at the time.” [ 21 ] The constable identified the certificate as the one provided to him by the technician containing the results obtained from the accused: Q Well, I guess it is fair to say that whatever was happening in that room and what you were hearing from Constable Lauriault led you to believe something, is that correct?

A I was provided with the Certificate of Analyses by Constable Lauriault that had two readings of the samples obtained by Michael Grondin. She had provided me with the Certificate of Analyses and once she gave it to me there were two readings on there. Q All right, so what you’re saying is – A It was my under – Q – you looked at a Certificate of Analyses that led you to believe that two suitable samples were taken, is that right? A Yes, that’s correct. Q Okay. And I’m showing you a Certificate of Analyses and on the bottom is a Notice of Intention to Produce Certificate. Have you

seen that document before? A Yes, correct, that’s the document I was handed – Q Okay. A – by Constable Lauriault. Q All right, now on the back of it is an Affidavit of Service. A Mhmm. Q Is that correct? Do you recognize the person who’s completed that Affidavit of Service? A Yes, that would appear to be Constable Wes Dust. Q Okay, and on the front where it says Notice of Intention to Produce Certificate do you recognize the signature there? A That again would appear to be Constable Wes Dust’s signature. Q All right, and is there a date there? A It says, “Dated this 11 th day of July, 2009.” Q Okay. A A.D.

Q It would appear then that this has also been sworn, is that correct? A Yes, it appears to have been sworn by a Commissioner of Oaths. Q That’s the Affidavit of Service. A Yes. Q Now, were you present when this was served on –

A No, I wasn’t. Q – Mr. Grondin? I’ll ask that this be entered as an exhibit. MR. OWENS: I wonder if I could have a look because I don’t have anything on the back of the copy I was given. Thank you. THE COURT: Okay, that’s an exhibit in the voir dire then. MR. OWENS: Thank you. THE COURT: P-1 on the voir dire. EXHIBIT P-1 ON THE VOIR DIRE - Certificate of Analyses [22] The samples recorded on the certificate were 220 at 0300 hours and 230 at 0320 hours. The R.C.M.P.

C-13 form, filed asExhibit P-2 in the voir dire and forming part of the Crown evidence at the trial, names Michael Grondin, refers to the same samplereadings as those noted in the Certificate of Analyses, and notes that the accused is booked in cells at 03:30 by Constable Jaszczyszyn.Constable Jaszczyszyn testified that he filled out the C-13 form and the accused was lodged in cells due to his high state of intoxication,his second sample being nearly three times the legal limit. [23] Based on the cases referred to, I am satisfied that the evidence of the investigating officer is admissible to supplement theevidence in the certificate with respect to the name of the person from whom the samples were taken.

The evidence of the constablesatisfies me beyond a reasonable doubt that the person named in the Certificate of Analyses as Edward Michael Grondin is one and thesame person as the accused, Michael Grondin, and that the samples recorded on the certificate were the samples taken from the accusedat the times and date indicated on the certificate. [24] The certificate will be admitted into evidence and is evidence of the breath sample analyses of the accused, Michael Grondin. [25] Finally, with respect to whether or not the name of the accused on the Information should be amended: the only evidence attrial identifying the accused as Edward Michael Grondin is that contained in the certificate itself, and the attached Notice of Intentionand Affidavit of Service.

His driver’s licence identified him only as Michael Grondin (see page 7 of the transcript of ConstableJaszczyszyn’s testimony). [26] Edward Michael Grondin may be an alias of the accused. The Certificate of Analyses states that the person was identified tothe technician as Edward Michael Grondin. That should be sufficient to amend the Information to include the alternative name as an alias(also known as) for the purpose of clarity in the criminal record. Such amendment would not be prejudicial to the accused, as I havealready found that he is one and the same as the person named in the Certificate of Analyses.

His defence is not affected by theamendment. [27] The Court can amend the Information at any stage of the proceeding under s. 601 of the Criminal Code as long as the accusedis not misled or prejudiced. [28] R. v. Paul Magder Furs Ltd. et al, (ON CA), [1989] O.J. No. 531 (Ont. C.A.), upheld amendment of a

charge under provincial legislation following conviction, but prior to sentencing. The wording of The Provincial Offences Act allowing the amendment was similar to that in s. 601 of the Criminal Code . CONCLUSION [ 29 ] The name of the accused in the Information is amended to “Michael Grondin, also known as Edward Michael Grondin.” [ 30 ] I find the accused guilty of count 2, the .08 offence. Count 1 is stayed. ________________________________ V. H. Meekma, J