R. v. Baboolall, 2019 ONCJ 204

CITATION: R. v. Baboolall , 2019 ONCJ 204 DATE: March 5, 2019 Information No. 2811-998-18-34098-00 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. COMPTON BABOOLALL R E A S O N S F O R J U D G E M E N T BEFORE THE HONOURABLE JUSTICE G.R. WAKEFIELD on March 5, 2019 at 150 BOND ST. E., OSHAWA, Ontario APPEARANCES : I. Skelton Counsel for the Crown B. Starkman Counsel for Compton Baboolall TUESDAY, MARCH 5, 2019 R E A S O N S F O R J U D G E M E N T WAKEFIELD, G. R. (Orally): The defendant is charged with one count of over 80.

The Crown case consisted of the arresting officer, the breath technician who conducted the breath test, and the breath technician who changed the intoxilyzer solution contemporaneous to the alleged offence date. The defendant did not testify, and the charter application was quite properly abandoned upon the close of the case. As such, I move directly to the third branch of the W.(D.) analysis. Dealing firstly with the admissibility of the certificate of qualified technician as to whether the Crown has proven, on a balance of probabilities, good service on the defendant of the certificate.

I find that there was good service, and as such, the certificate is no longer a lettered exhibit, but is now Exhibit 2 on the trial proper. I come to this conclusion for the following reasons: I note that the defendant refused to sign the acknowledgment of receipt which would have resolved the issue have the signature been endorsed on the document; however, the arresting officer testified as to showing or presenting the certificate to the accused among the usual documents.

He did so in the context of explaining the certificate to the defendant, as I said, presenting it to the defendant for a signature, which the defendant, quite within his rights, refused to sign. I note the officer asserted he had served, and I accept his good faith belief he had done so, even though it was only the true copy which was ultimately provided to the defendant. I have reviewed R. v. El Boury [2016] O.J. No. 4063 with the cases cited therein and agree the legal test for proof of service is on a balance of probabilities.

The testimony of the arresting officer asserted that he placed a copy of the document on top of the defence property, which was placed on the floor just outside the room in which the defendant was being released by another officer. The arresting officer was present just outside the room through that process. He was present with the defendant when the defendant picked

up his property as the officer agreed to drive the defendant home. I understood the context of what the officer said was that while he did not have an independent recollection of whether the certificate was picked up by the defendant with the rest of his property or whether the officer handed the copy directly to the defendant, the officer was sure the defendant received the copy as the defendant did take all of his property. The officer further confirmed he has never released a defendant without all of that person’s property which, I accept on this occasion, included the certificate copy.

The procedure placing any detainee’s property on the floor outside the interview room in which the detainee was being held, as testified by P.C. Sebaaly corroborates that part of the testimony of the arresting officer and adds to his reliability as to that testimony. I find that, on a balance of probabilities, the defendant was indeed served with a certificate.

Separately and additionally I also agree with the Crown’s submission that, in refusing to sign the certificate, the defendant was effectively refusing service, thereby not requiring what many cases refer to as the requirement to handle the document for proper service. Indeed, the formality of handling a document is, to my mind, an outmoded concept which I suspect may find its roots in medieval times and perhaps should be the subject of a review as to its necessity, especially when we enter a digitalized document regime; however, it is an issue on the facts I have found that I need not embark upon.

With the admission of the certificate into the trial proper, the defence counsel conceded that disposed of all of his submissions, save one: the certificate of analysis dates to February 25, 2018, and is no longer in compliance with the new impaired driving sections.

Section 320.31 is retrospective, and applicable to this trial. The requirements of subsection (1) also apply to this trial and are lacking on Exhibit 2. As such, the Crown is required to call the breath technician who conducted the test and, due to the probing cross-examination by defence, the Crown additionally called the breath technician who replaced the solution back on February 25, 2018. Both breath technicians affirmed their satisfaction that, after their respective procedures, the instrument was in good working order. The additional requirements of

section 320.31(1), in my view, have been met by the content of the instrument’s printout as explained and amplified by the testimony of the test-taking breath technician, P.C. Sebaaly, which is set out in Exhibit 1. As to the issue of the certificate of analysis from the Centre of Forensic Sciences, it would have been better had that, too, been made an exhibit on notice to the defence. It was not; however, P.C. McMillan was the breath technician who replaced the solution back in 2008.

His recollection of that specific process has, indeed, been lost to time, however he did confirm his standard practice, which would result in the admissibility of what occurs when the solution is replaced.

I agree with the defence that, technically, the review of his notebook entry could only be relied upon when he has an independent recollection, as defence was very careful in restricting his consent to that sole purpose; however, I note that the requirements set out for the new, improved certificate of qualified technician would contain all the information set out in the current certificate, together with the information set out on the instrument printout, together again with confirmation that P.C.

McMillan’s standard practice was, and is, to confirm the lot number with the certificate of analysis posted on the breath room door and all that information in each case would be information that a breath technician would endorse on the new certificate form, including what might be considered hearsay - relying upon the CFS certificate of analysis - but is now admissible pursuant to the new regime had a new form certificate been used. The accumulation of Crown evidence, I find, amounts to the same result as what would be in compliance with the

section through the content of the anticipated new certificates of qualified technician. It follows from my findings that the Crown has met its burden of proof beyond a reasonable doubt, and sir, if you’d stand up please? And as such, I do, indeed, find you guilty of the charge before the court. **********