Her Majesty the Queen - v. -, 2022 SKPC 29

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2022 SKPC 29 Date: July 21, 2022 Information: 90224685 Location: Outlook _____________________________________________________________________________ Between: Her Majesty the Queen - and - Brett Patterson Appearing: Janyne Laing For the Crown Timothy Foster, Q.C. For the Accused TRIAL DECISION M. MARTINEZ , J 1. Introduction [ 1 ] On Canada Day 2021, Brett Patterson and his girlfriend, Paige Enmark, drove together in his truck from the City of Moose Jaw to a beach near the Town of Outlook, Saskatchewan. There they met up with several of Ms.

Enmark’s friends for a beach party. [ 2 ] Everyone was drinking and enjoying themselves until Mr. Patterson and one of Ms. Enmark’s male friends got into a scuffle.

[ 3 ] As a result of this fracas, Ms. Enmark and her friends made it abundantly clear that Mr. Patterson no longer was welcome. When Ms. Enmark – now Mr. Patterson’s ex-girlfriend – tried to take some of her things out of his truck, he pushed her away, threw her belongings onto the sand, and tried to drive out of the area as quickly as he could. Unfortunately, his truck got stuck in the sand and he had to try a second time. After getting stuck once more, Mr. Patterson backed his truck up to the water’s edge and took a third run at the sandy embankment. [ 4 ] As Mr.

Patterson’s truck was accelerating up the beach, one of Ms. Enmark’s friends, Trinity Ingram rushed into its path to shoo away a dog. Mr. Patterson’s truck was about 15 feet or 20 feet away from her when she did this. Mr. Patterson was unable to stop his truck’s forward motion before it struck Ms. Ingram. [ 5 ] When Mr. Patterson began getting out of his truck to check on Ms. Ingram, everyone yelled at him to get out of there, which is what he did. [ 6 ] Ms. Enmark then called the RCMP to report a hit and run accident. She told the police Mr. Patterson’s name and described his truck.

She also mentioned that he had been drinking. Cst. Beriault of the Outlook RCMP detachment received this information from RCMP dispatch. [ 7 ] Cst. Beriault drove to the scene. On the way, he kept his eye out for Mr. Patterson’s truck and he spoke to Ms. Enmark by telephone. At the beach, after assuring himself that Ms. Ingram had not suffered any serious injuries, he spoke to various witnesses. [ 8 ] Ultimately, Cst. Beriault requested a “be on the lookout for” – a BOLO – for Mr. Patterson and his F350 pickup truck. The BOLO included information that Mr.

Patterson was arrestable for assault with a weapon – specifically, his truck hitting Ms. Ingram. [ 9 ] Following up on Cst. Beriault’s BOLO, Cst. McKay, of the Moose Jaw RCMP detachment, saw a truck fitting the description of Mr. Patterson’s truck travelling on Highway 2 toward Moose Jaw at about 7 p.m. on July 1, 2021. [ 10 ] Cst McKay activated his police vehicle’s emergency lights and siren. The truck pulled over. Mr. Patterson was driving the truck. Cst. McKay arrested him for assault with a weapon at 7:03 p.m. [ 11 ] While dealing with Mr. Patterson, Cst.

McKay detected a slight odour of alcohol coming from him. Cst. McKay then contacted Cst. Beriault to confirm whether he had received any information that Mr. Patterson had been drinking. Cst. Beriault confirmed that the witnesses told him Mr. Patterson had been drinking. Consequently, Cst. McKay had Mr. Patterson blow into a roadside alcohol screening device. After three or four attempts, Mr. Patterson blew a “Fail” reading and Cst.

McKay arrested him for impaired driving and demanded that he provide further breath samples for the purpose of establishing the concentration of alcohol in his blood. [ 12 ] Ultimately, using an approved instrument, a qualified technician [QT] obtained two breath samples from Mr. Patterson. The QT took Mr. Patterson’s breath samples at 9:33 p.m. and 10:06 p.m. on July 1, 2021 [ 13 ] The analysis of Mr. Patterson’s breath samples corresponded to 110 and 100 milligrams [mg] of alcohol in 100 milliliters [mL] of blood. Consequently, in addition to an impaired driving charge, Mr.

Patterson was charged with having a blood alcohol concentration of 80 or more mg of alcohol in 100 mL of blood within two hours after ceasing to operate a conveyance contrary to s. 320.14(1) (

b) of the Criminal Code [“80 or over”]. [ 14 ] Before releasing him from custody on July 1, 2021, Cst. McKay gave Mr. Patterson copies of a Certificate of Qualified Technician [CQT] and a copy of the printout from the approved instrument certified by the QT. These documents included written notice that the Crown intended to produce them at Mr. Patterson’s trial [Notice of Intention]. 2. Impaired Operation

[ 15 ] Mr. Patterson drank alcohol before he left the beach and began driving back to Moose Jaw. However, his level of intoxication is unclear. All the non-police witnesses who testified at trial also had been drinking at the beach party. For obvious reasons, all of them bore some hostility towards Mr. Patterson. For these reasons, I find that the reliability and the credibility of their observations as to his level of intoxication is suspect. [ 16 ] Although Mr. Patterson hit Ms.

Ingram with his truck, there is no evidence that the reason this accident occurred was because his ability to operate his truck was impaired by alcohol – as opposed to the causes being his haste to depart and Ms. Ingram’s foolhardy decision to dash in front of Mr. Patterson’s truck when it was only a few feet away. [ 17 ] When Cst. Beriault spotted Mr. Patterson’s truck, he did not see anything unusual about how Mr. Patterson was driving the truck. [ 18 ] After stopping Mr. Patterson, and interacting with him at the roadside, in his police vehicle, and at the RCMP detachment, the only thing Cst.

Beriault noticed was a slight odour of alcohol on Mr. Patterson’s breath. He did not observe any signs that Mr. Patterson’s motor skills were impaired in any way. [ 19 ] On this evidence, I am left with a reasonable doubt as to whether Mr. Patterson’s ability to drive was impaired by alcohol. 3. “80 or Over” [ 20 ] As I noted earlier, the “80 or over” offence with which Mr. Patterson was charged is that, within two hours after he ceased driving, the concentration of alcohol in his blood was 80 or more mg of alcohol in 100 mL of blood. Through Cst. McKay’s testimony, the Crown proved when Mr.

Patterson ceased driving. [ 21 ] Although his breath samples were taken more than two hours after he ceased driving, if the Crown proves the concentration of alcohol in Mr. Patterson’s blood at the time his breath samples were taken, by virtue of the “read back” presumption described in s. 320.31(4) of the Criminal Code , it also can prove what the concentration of alcohol in his blood was within two hours after he drove. [ 22 ] The Crown can conclusively prove the concentration of alcohol in Mr.

Patterson’s blood when his breath samples were taken, if it proffers admissible evidence of the following: 1) samples of Mr.

Patterson’s breath were received into an approved instrument by a QT, 2) before each sample was taken, the QT conducted a system blank test the result of which is not more than 10 mg of alcohol in 100 mL of blood and a system calibration check the result of which was within 10% of the target value of an alcohol standard that is certified by an analyst, 3) there was an interval of at least 15 minutes between the times when the samples were taken, and 4) the results of the analyses, rounded down to the nearest multiple of 10 mg, did not differ by more than 20 mg of alcohol in 100 mL of blood: Criminal Code s 320.31(1)(a)-(c). [ 23 ] In order to prove the foregoing facts, the Crown can rely on the oral testimony of the QT and of the analyst who certified the alcohol standard used by the QT, or it can produce certificates they signed: Criminal Code s 320.32(1); see also R v Goldson , 2021 ABCA 193 , 406 CCC (3d) 84 at para 83 , and R v Pahl , 2021 SKQB 179 at para 82 as to the evidentiary necessity of the analyst’s oral testimony, or certificate, confirming certification of the alcohol standard .

[ 24 ] In Mr. Patterson’s case, the Crown chose to rely on certificates prepared by the QT and by two analysts. [ 25 ] When the Crown chooses to rely on such certificates at trial, it must give the accused person copies of the certificates and reasonable notice of its intention to produce them at trial: Criminal Code s 320.32(2). [ 26 ] Mr. Patterson’s defence counsel objected to the certificates being admitted into evidence at trial.

For this reason, the certificates tendered by the Crown were marked as exhibits “for identification” only, subject to argument. [ 27 ] Defence counsel’s objection to the CQT and the certified printout being entered in evidence focused on the inadequacy of the related affidavits of service. However, defence counsel conceded that because Cst. McKay, the officer who served the documents and their Notices of Intention on Mr. Patterson, testified at trial, the problem posed by the wording and the form of the affidavits of service may not matter.

I agree. [ 28 ] For this reason, the CQT and the printout will be entered as full trial exhibits: P-1 and P-3, respectively. [ 29 ] Mr. Patterson received copies of the CQT and of the printout document together with the related Notices of Intention on July 1, 2021. [ 30 ] It was only 13 days before his trial that Mr. Patterson’s lawyer received copies of two Certificates of an Analyst and their Notices of Intention. [ 31 ] Mr.

Patterson objects to the Certificates of an Analyst being received in evidence at his trial because the Crown’s notice to him of its intention to produce them at trial was unreasonably late. [ 32 ] The Crown’s position is that, if Mr.

Patterson was dissatisfied with the notice period, he could have asked that his trial be adjourned, and, as he chose not to do so, the Certificates of an Analyst should be entered in evidence as full exhibits. [ 33 ] In support of its submission, the Crown referred me to two recent Saskatchewan cases: R v Turgeon , 2021 SKQB 236 [ Turgeon ] and R v Andre , 2022 SKPC Feb 8, 2022 (unreported) [ Andre ]. [ 34 ] Turgeon is a

summary conviction appeal decision. [ 35 ] The appeal justice described the trial case as a “transition” case. In the criminal law, a “transition” case is one where the governing law changed between the date of the alleged offence and the date of trial. [ 36 ] In Mr. Turgeon’s case, between the date his offence arose and the date of his trial, Parliament amended the Criminal Code provisions governing drinking and driving cases. One of the effects of the amendments was to change the form and content of the CQT.

The new form of CQT applied to the prosecution of offences that occurred both before and after the amendments came into force on December 18, 2018. [ 37 ] About two weeks before Mr. Turgeon’s trial, the Crown prosecutor learned that the QT was not able to attend the trial. The prosecutor alerted defence counsel of this turn of events. The prosecutor also informed her that the Crown would prepare a revised CQT and intended to produce it at trial. The prosecutor was not able to provide a copy of the revised CQT to defence counsel until the date of trial.

[ 38 ] The accused objected to the new CQT being accepted in evidence because the Crown had not informed his lawyer of its intention to produce it at trial until only two weeks earlier, and because he did not receive a copy of it until the date of trial. [ 39 ] The relevant notice provision in the amended Criminal Code requires that the Crown give the accused “reasonable notice” of its intention to produce a CQT at trial. The trial judge found that had Parliament intended a specific notice period, it would have said so.

For this reason, the trial judge found that the notice given by the Crown was reasonable in the circumstances. Further, the learned trial judge noted that if the accused had been prejudiced by the late notice and late disclosure, he could have asked that his trial be adjourned. The learned appeal judge could not find error in the trial judge’s conclusion: Turgeon at para. 78 . [ 40 ] Andre is an unreported decision of this court.

The prosecutor quoted some passages from Andre in her written argument, but she did not file a transcript of the case. [ 41 ] In Andre the defence objected to the Certificate of an Analyst being entered into evidence because the defence did not receive a copy of it and the related Notice of Intention until less than one month before trial.

What I can glean from the Crown’s written submission is that, in Andre , my learned colleague believed he or she was bound by Turgeon and convicted the accused after allowing the Certificate of an Analyst into evidence. [ 42 ] In Turgeon , the Crown prosecutor was caught flat-footed by the change in the law and by the unanticipated inability of the QT to attend the trial. Undoubtedly, those circumstances informed the trial judge’s and the appeal justice’s decisions. The circumstances of the case before me are markedly different. [ 43 ] Unlike Turgeon , Mr. Patterson’s case is not a “transition” case.

The amended drinking and driving provisions of the Criminal Code had been in force for more than two and one-half years by the time he was charged. For this reason, unlike the trial judge in Andre , I do not find that I am bound by Turgeon . Reasonable Notice Under s. 320.32 [ 44 ] To answer the question of what is reasonable notice under s. 320.32, I must apply principles of statutory

interpretation. The overarching principle governing the

interpretation of statutes is that “the words of

an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, object of the Act, and the intention of Parliament”: Sullivan on the Construction of Statutes , 5 th ed., 2008, at p 1. [ 45 ] The following portions of s. 320.32 are relevant to the question before me: 320.32

(1) A certificate of an analyst, qualified medical practitioner or qualified technician made under this

Part is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person who signed the certificate.

(2) No certificate shall be received in evidence unless the party intending to produce it has, before the trial, given to the other party reasonable notice of their intention to produce it and a copy of the certificate.

(3) A party against whom the certificate is produced may apply to the court for an order requiring the attendance of the person who signed the certificate for the purposes of cross-examination.

(4) The application shall be made in writing and set out the likely relevance of the proposed cross-examination with respect to the facts alleged in the certificate. A copy of the application shall be given to the prosecutor at least 30 days before the day on which the application is to be heard.

(5) The hearing of the application shall be held at least 30 days before the day on which the trial is to be held. [ 46 ] The primary purpose of the notice requirement contained in s. 320.32(2) is to alert the defence that the QT or the analyst will not attend the trial. If the defence wants to challenge the facts asserted in their certificates, it must apply to the court for an order requiring the QT or the analyst to attend the trial for the purpose of being cross-examined: s. 320.32(3).

[ 47 ] The accused’s application must be given to the prosecutor at least 30 days before the date the application is to be heard, and it must set out the likely relevance of the proposed cross-examination in relation to the facts alleged in the certificate: s. 320.32(4). Presumably, the purpose of this subsection is to discourage frivolous applications and to give the Crown fair warning that it might have to arrange for the QT or the analyst to attend the trial. [ 48 ] The application itself must be heard at least 30 days before the trial is scheduled to begin: s. 320.32(5).

Parliament’s clear purpose in enacting this mandatory requirement is so that the trial is not delayed by an unnecessary adjournment. [ 49 ] In R v Zejnullahu , 2021 ONCJ 139 at para 19 , Justice Fillier observed the following: I agree with the defence that on a plain reading of the

section consistent with the principles of statutory

interpretation the Crown must perfect notice and service on the defence a minimum of 61 days in advance of trial. While subsection (2) speaks to “reasonable notice”, subsections (4) and (5) establish fixed minimum time frames that the defence must adhere to. As such, “reasonable notice” must be interpreted as encompassing the 60-day time frame – to do otherwise would render subsections (4) and (5) meaningless. [ 50 ] I agree with Justice Fillier. The s. 320.32(2) “reasonable notice” requirement must be read in the context of the mandatory time periods described in s. 320.32(4) and (5).

I find that in order for the Crown’s notice to be reasonable it must be given to the defence more than 60 days before the date on which the trial is scheduled to begin. In most cases, 61 days notice will be reasonable; however, in court circuit points like Outlook, Saskatchewan, where the court sits only once every month, reasonable notice probably needs to be longer so as to accommodate scheduling a hearing at least 30 days before the trial date. [ 51 ] Consequently, I find that the Crown’s notice of its intention to produce the Certificates of an Analyst at Mr.

Patterson’s trial was unreasonably short notice. [ 52 ] The Crown’s obligation to give the defence reasonable notice of its intention to rely on an analyst’s certificate at trial is not an onerous obligation – as is demonstrated by the fact that the Crown gave Mr. Patterson ample notice of its intention to produce the CQT and certified printout at his trial.

While the Crown’s reasonable notice obligation is not onerous, it is mandatory. [ 53 ] When the Crown fails to fulfill a statutorily mandated pre-trial evidentiary obligation imposed on it by Parliament, the court’s response should not be to adjourn the trial but to refuse to allow the Crown to produce that evidence at trial. [ 54 ] For these reasons, the two Certificates of an Analyst are not admitted in evidence as full trial exhibits. 4.

Conclusion [ 55 ] Without the Certificates of an Analyst, and in the absence of the oral evidence of the analysts, the Crown has failed to prove one of the facts it must prove under s. 320.31(1) of the Criminal Code so that it can take advantage of that section’s evidentiary shortcut to conclusively prove the concentration of alcohol in Mr. Patterson’s blood at the time his breath samples were taken.

As such, the Crown cannot rely on s. 320.31(4) to prove beyond a reasonable doubt the concentration of alcohol in his blood within two hours after he ceased driving. [ 56 ] For these reasons, I have no choice but to find Mr. Patterson not guilty of the s. 320.14(1) (

b) offence. __________________________ Martinez, J