Her Majesty the Queen - v. -, 2015 SKPC 102

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 102 Date: July 10, 2015 Information: 24530918 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Riley Merle Wheaton Appearing: J. Knox For the Crown M. Owens For the Accused JUDGMENT R.D.

JACKSON , J I INTRODUCTION [ 1 ] The application of the accused to exclude evidence of the Certificate of Qualified Technician (the Certificate) by reason of Charter violation was denied in the interim ruling of March 27, 2015. [1] The remaining issues are whether the Crown has established that the accused received sufficient notice of the Certificate, as required by s. 258(7) of the Criminal Code , and whether the Crown has proven that the accused’s ability to operate his motor vehicle was impaired by alcohol.

II OVER .08 [2] The standard of proof to admit the Certificate is the civil burden of a balance of probability rather than the criminal standard of proof beyond a reasonable doubt. Although this Court in R v Danielson,[2] held the latter to be correct, this decision has been implicitly overruled by the determination of Danyliuk, J in R v David Bear[3], at para. 16: The standard to admit a certificate is on a balance of probabilities: R v Redford, 2014 ABCA 336.

On this point I accept and adopt thereasoning of the Alberta Court of Appeal. [3] In the present case, the accused was served a photocopy of the original Certificate however the officer neglected to sign the“Notice of Intention to Produce Certificate” at the time service of the document was effected upon the accused.

For the reasons thatfollow, the Court finds Bear to be a complete answer to this issue raised by the Defendant. [4] In Bear, the same circumstance existed whereby the officer failed to both date and sign the Notice of Intention to ProduceCertificate at the time service upon the accused was effected. [5] Mr. Justice Danyliuk disposed of this argument by stating the following at paras. 18 to 24, of Bear: Unsigned Notice [18] It is first argued that this was an automatic, computer-generated notice. The particulars needed to be filled in by the officer. Anunsigned, blank certificate is clearly ambiguous.

Why else, the appellant asks, would the form require this information? In fact, s.258(7) does not provide for any specific form of notice, either in that subsection or elsewhere in the Code.

There is no legislativedirection as to a mandatory form or the specific information to be supplied to an accused person, thus no particular form of notice isrequired: R v Sullivan, 2012 SKQB 138; R v Good (1983)a, 1983 ABCA 141 , 6 CCC (3d) 105 (Alta CA). [19] At para. 7 of Good the Alberta Court of Appeal said: Appellate courts have consistently, and rightly refused to invalidate notices on mere technical objection that the procedure left somethingto be desired.

The utility of these provisions in simplifying the production of evidence thereby reducing the time and cost of criminalprosecutions is not to be diluted by an insistence on perfection. (. . .) The real test is that the notice must be reasonable in time andsubstance and must not be misleading, confusing or otherwise prejudicial. It must clearly and precisely bring home to the accused thatthe certificate may be used in relation to a charge arising from the incident.

No particular form of notice is required and there is noinflexible legal presumption that any explanatory words accompanying service will dilute the clear wording of the notice. (. . .)However, given a printed notice clear and impactive on its face together with early and proper service thereof, a finding of confusion orambiguity in the absence of defence evidence to that effect would be rare indeed. [20] It is true this notice was not signed. The Code does not require it to be.

Just because the standard form contained a space for asignature does not elevate that fact into some sort of legal prerequisite for validity of the notice. Logically, one might have thought theofficer would sign the notice where indicated. But can his failure to do so be said to be a circumstance that entire voids the notice beinggiven? I think not. [21] An offshoot of the appellant’s argument in this regard is that, having designed a form calling for certain information, when the

[21] An offshoot of the appellant’s argument in this regard is that, having designed a form calling for certain information, when the police do not put that information into the notice this is an indication that the Crown is not going to avail itself of this evidentiary shortcut, but instead intends to elicit oral testimony from the testing technician. I disagree. On a plain reading of the form of notice actually supplied here, the appellant should not have been misled. No defence evidence was provided on the voir dire .

There is no indication the appellant was actually misled, thus the trial judge had nothing before her to indicate there was any actual or subjective confusion. Objectively, a reasonable person, in the same circumstances and with the same notice in front of him, would reasonably conclude that the Crown is going to use the Certificate of Analysis ( sic ) against him at trial. [22] Mr.

Justice Scherman recently dealt with this in R v Pomedli, 2014 SKQB 286 at paras. 17 and 18 : [17] Reasonable notice here means that the accused was put on effective notice of the intention to produce the certificate in evidence at trial. When the accused read the notice, he could not reasonably have been confused. It expressly states the prosecution intends to produce in evidence a copy of which appears above .

The only thing which appeared above, under a capitalized heading of “CERTIFICATE OF A QUALIFIED TECHNICIAN” was such a certificate signed by the technician who had just completed an analysis of two samples of his breath. [18] Anyone in the respondent/accused’s position reading the Notice of Intention to Produce Certificate portion of the one-page document would understand that the words “a copy of which appears above” referred to the Certificate of a Qualified Technician.

It would simply be unreasonable to conclude that in the circumstances the accused was not put on reasonable notice of the intention to produce the certificate in evidence at trial. The concept of reasonable notice is not to be trumped by personal standards of what is grammatically correct or by technical deficits in a notice. [Emphasis in original] [23] As emphasized in Good and many other cases, perfection is not the standard. The question is whether the Crown’s intention to use the Certificate of Analysis ( sic ) against an accused at trial has been conveyed to that accused.

It is a straightforward question, not to be confused or heightened by unrealistic expectations. [24] As to the lack of signature, two answers emerge. First, the Code does not require any signature. The mere fact that the computer- generated form has a place for a signature does not mean that the validity of the entire notice hangs upon a signature being affixed to the document, or that this is somehow elevated to a legal requirement. Second, looking at the Notice in question, if there was no place for a signature, would the Notice have any less impact on or import to an accused?

It is difficult to see how. [ 6 ] As in Bear , the accused did not testify in the present case as to any confusion or misunderstanding as to the contents of the Certificate to be introduced into evidence at trial. Nor, realistically, could he do so by reason only of the officer’s signature being missing at the bottom. [ 7 ] The law on this point is now well-settled that the purpose of s. 258(7) is to provide reasonable notice to the accused of what the Crown intends to rely upon at trial.

As indicated, lack of perfection in every detail on the face of the document does not invalidate sufficiency of service where it cannot reasonably be shown that the accused was misled or misinformed by reason of such imperfection. [ 8 ] In the present case, the Court is satisfied on balance that proper compliance of s. 258(7) of the Criminal Code has been met and therefore there is no impediment to admission of the Certificate of Qualified Technician.

III IMPAIRED DRIVING [ 9 ] The accused was observed by Constable Watters to make an excessively wide turn onto Main Street, in the town of Kindersley, nearly coming into contact with the curb before correcting sharply to straighten out. In the process, he observed the driver’s side front tire to cross the centre line. [ 10 ] No other driving evidence emerged as the accused was stopped almost immediately thereafter.

[11] Upon encountering the accused, physical signs of impairment were noted to be “very greatly slurred” speech and “veryunsteady on his feet - placing a great deal of weight on the heels of his feet.” He also noted the accused’s eyes to be “. . . very, veryglossy, very watery.” [12] In cross-examination, the officer stated that the accused’s physical signs and demeanour showed no change at the detachmenti.e. that the video of the accused at the detachment would indicate the same signs as noted at the scene. [13] The Court has had the benefit of viewing the video, Exhibit P-2, several times paying close attention to the condition anddemeanour of the accused. [14] In the video, the accused appears to be somewhat animated and fidgety and waving his arms about occasionally to expresshimself.

The speech, although somewhat slow, cannot be said to be noticeably slurred. Further, the accused appears to be physicallycoordinated, exhibiting no difficulty in alighting from his chair and walking out of the room, nor in returning to his seat thereafter. Hisdemeanour is engaging, polite and cooperative. He does not repeat himself nor does he have any difficulty in carrying on prolongedconversation or comprehending what is being said to him.

His answers are contextually correct requiring no need for repetition orclarification. [15] In all the circumstances, the Court has a reasonable doubt that the Crown has proven that the ability of the accused to operatehis motor vehicle was impaired by alcohol at the time of driving. [16] Accordingly, the accused is found not guilty on this count. IV CONCLUSION [17] The Court has found proper compliance with s. 258(7) of the Criminal Code concerning sufficiency of notice of theCertificate of Qualified Technician, marked as Exhibit P-1.

The readings being 170 milligrams and 160 milligrams respectively, theaccused is found guilty of driving his motor vehicle while over .08 per cent. ________________________ R.D. Jackson, J [1] 2015 SKPC 47 , 2015 SKPC 047 [2] [2013] SJ No 709 [3] 2014 SKQB 42