Her Majesty the Queen - v. -, 2015 SKPC 144

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 144 Date: October 20, 2015 Information: 24541408 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Rick Daoust Appearing: Cory Bliss For the Crown Ron Piche For the Accused JUDGMENT S.L. METIVIER , J INTRODUCTION [ 1 ] Rick Daoust, is charged in count #2 with operating a motor vehicle while his blood alcohol content exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1) (

b) of the Criminal Code , RSC 1985, c C-46. The Crown stated at trial that it is not seeking a conviction on the charge of impaired driving in count #1.

[2] The Crown relies on a Certificate of Qualified Technician (“Certificate”) and the statutory presumptions ofaccuracy and identity found in s. 258(1) of the Criminal Code. The Defence argues that the Crown has not established complianceunder s. 258(7) of the Criminal Code, which requires that the accused be served with a true copy of the Certificate as a precondition toits admissibility. The Defence further argues that the Crown has not established that a proper observation period occurred before eachof the breath tests, rebutting the statutory presumptions in s. 258(1).

FACTUAL BACKGROUND [3] The evidence in this case came from one Crown witness, Sgt. Warren Gherasim. [4] In the early morning hours of March 30, 2014, Sgt. Gherasim noticed a vehicle nearly enter the ditch as it turnedfrom a private driveway onto a public road. He turned his patrol car around to follow the vehicle, which immediately pulled over andcame to a stop. While dealing with the driver and sole occupant, Mr. Daoust, Sgt. Gherasim smelled beverage alcohol emanating fromthe vehicle and noticed that Mr. Daoust had difficulty producing his driver’s licence and registration. [5] Sgt. Gherasim asked Mr.

Daoust to come to the police vehicle. He testified that he could smell beverage alcoholcoming from Mr. Daoust’s breath and asked him if he had been drinking. Mr. Daoust admitted to Sgt. Gherasim that he had consumedalcohol within the last fifteen minutes. [6] Sgt. Gherasim made an Approved Screening Device demand (ASD), which resulted in a “fail” reading. He arrested Mr.Daoust for impaired driving, informed him of his right to counsel, and issued a breathalyzer demand under s. 254(3) of the CriminalCode. [7] Sgt. Gherasim took Mr.

Daoust to the RCMP Detachment in Saskatoon where he provided two samples of his breath foranalysis. The blood alcohol readings in the Certificate are 170 and 160 milligrams of alcohol in 100 millilitres of blood. ANALYSIS 1.

Has the Crown established compliance with s. 258(7) of the Criminal Code? [8] Section 258(7) of the Criminal Code reads in part: No certificate shall be received in evidence … unless the party intending to produce it has, before the trial, given to the other partyreasonable notice of his intention and a copy of the certificate. [9] In order for the Certificate to be admitted into evidence under s. 258(7), the Crown must establish that the accused was givena copy of the Certificate and reasonable notice of the Crown’s intention to use it as evidence at trial.

The Saskatchewan Court of Appealhas interpreted the requirement that the accused be served with a “copy of the certificate”, as requiring service of a “true copy”, meaningthat it must be true in all essential particulars so that it conveys the required information to the accused. See: R v Glass, (SKCA). [10] In this case, the Certificate and the Notice of Intention to Produce Certificate (“Notice”) are included on one page, filed asExhibit P-1 at trial. The Certificate, which occupies the top portion of the page, sets out the results of the breath analysis and is signed bythe qualified technician.

The Notice, on the bottom part of the page, includes blank spaces for the police officer to fill in the date, location, and a handwritten signature.

a) What is the legal standard of proof for service of the Certificate of Analyses under s. 258(7) of the Criminal Code ? [ 11 ] The Defence submits that the Crown must establish the requirements under s. 258(7) beyond a reasonable doubt, with reference to the following cases: R v Milligan , 2012 ABPC 29 ; R v Danielson , 2013 SKPC 121 ; R v Cox , 2013 SKPC 187 .

The Crown argues that the standard of proof under s. 258(7) is on a balance of probabilities , referring to recent decisions in R v Redford , 2014 ABCA 336 [ Redford ] and R v Bear , QBCA No 42 of 2014 [ Bear ]. [ 12 ] In Bear , Danyliuk J. held that the burden of proof for admission of a Certificate under s. 258(7) is on a balance of probabilities, adopting the reasoning of the Alberta Court of Appeal in Redford . As I am bound by the doctrine of stare decisis to follow the decision of the Saskatchewan Court of Queen ’ s Bench in Bear , the argument put forward by the Defence must fail.

b) Has the Crown established compliance in this case? [ 13 ] The Defence argues that the Crown has not established compliance under s. 258(7) as Sgt. Gherasim ’ s testimony regarding comparison and service of the Certificate on Mr. Daoust was inconsistent, confusing and unreliable. [ 14 ] Sgt. Gherasim testified in examination-in-chief that: the breath technician provided him with the Certificate and a copy of the Certificate; he compared the two documents; he served an exact copy of the Certificate on Mr.

Daoust; and he completed the certificate of service on the back of Exhibit P-1. [ 15 ] When cross-examined on the details, Sgt. Gherasim admitted that he did not know how the original and copy were produced, whether computer generated, photocopied, or otherwise. He did not have a specific recollection of doing a side by side comparison of the original and copy, but stated that it is his standard practice to do so and that he made a notation in his notebook that he did so in this case. In regard to completing the handwritten portion of the Notice, Sgt.

Gherasim could not recall whether he completed that portion on the original, and then returned it to the technician to make a copy, or if he completed both the original and copy by hand. [ 16 ] Based on the certificate of service and Sgt. Gherasim’s oral testimony, I have no hesitation finding that Mr. Daoust was given a copy of the Certificate. In R v Demers , 2007 SKQB 348 , Mills J. commented that the procedural requirement of service of a true copy should not come into play in the absence of some actual evidence that the copy served is not a true copy.

This principle was solidified in the recent decision of R v Metzger , 2015 SKQB 215 , when Schwann J. stated at para 33 that: The law in Saskatchewan is clear. To require the Crown to go beyond prima facie proof that the copy served was an accurate copy, there must be a challenge to its accuracy by the accused … It is an error of law for the trial judge to require supplemental evidence of comparison to buttress the affidavit of service in the absence of a challenge by the accused. [ 17 ] In the present case, the Crown established prima facie proof of service of the Certificate through Sgt.

Gherasim’s testimony and the certificate of service. There was no evidence at trial that the copy given to Mr. Daoust was different than the original. Based on the decisions in Demers and Metzger , it is my view that the Crown is not required to establish that the police officer did a side by side comparison of the copy with the original. [ 18 ] Even if the Crown were required to provide specific evidence of accuracy, I am satisfied that it did so in this case based on the certificate of service, Sgt.

Gherasim’s testimony regarding his standard practice, and the notation made in his notebook to that effect. [ 19 ] I conclude that the Crown has established compliance with s. 258(7) .

Does the evidence of the observation period raise a reasonable doubt that the breathalyzer was operated properly, thereby rebutting the presumptions in s. 258 of the Criminal Code ? [ 20 ] In R v By , 2015 SKQB 86 [ By ] , Barrington-Foote J. confirmed that R v St-Onge Lamoureux , 2012 SCC 57 , stands for the proposition that an accused may rebut the presumptions in s. 258 by adducing evidence that raises a reasonable doubt as to whether the breathalyzer malfunctioned or was operated improperly. [ 21 ] In By , as in this case, the police officer testified that it is a mandatory part of the breath testing procedure to observe the accused for at least 15 minutes prior to each test to ensure there was no mouth alcohol present.

Unlike this case, there was no direct evidence from a police officer or any other witness that they conducted the observation period. The only evidence of the observation period was a video recording that showed the accused in the presence of a police officer for less than nine minutes of the 15 minute period.

Barrington-Foote J. found that the evidence at trial was not reasonably capable of establishing that the breath testing procedure as it relates to the observation period had been followed and, therefore, that the trial judge erred in law in holding that the accused had not rebutted the presumptions in s. 258 of the Criminal Code . [ 22 ] In my view, the decision in By is distinguishable on its facts. In the present case, Sgt. Gherasim testified that he personally conducted the observation periods before the first and second breath samples and did not notice anything that caused him concern. While Sgt.

Gherasim acknowledged under vigorous cross-examination that he may not have maintained constant visual contact with Mr. Daoust, he also stated that he was in close proximity to Mr. Daoust at all times, and that he also utilized his sense of hearing and smell. [ 23 ] I find that the evidence in this case does not raise a reasonable doubt as to the proper operation of the breathalyzer and that the Crown is able to rely on the statutory presumptions in s. 258(1) of the Criminal Code . Accordingly, the Certificate establishes beyond a reasonable doubt that Mr.

Daoust ’ s blood alcohol concentration was above the legal limit at the time of driving. [ 24 ] Count #1 is dismissed. I find Mr. Daoust guilty of count #2. _________________________ S.L. Metivier, J