Her Majesty the Queen - v. -, 2012 SKPC 4

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 004 Date: February 07, 2012 Information: 32417088 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jesse Schell (No. 2) Appearing: Cory Bliss For the Crown Michael Owens For the Accused JUDGMENT P.S. KOLENICK , J BACKGROUND [ 1 ] The accused is charged that he did, on or about July 25, 2009, at Saskatoon, having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood operate a motor vehicle, contrary to s. 253(1) (

b) of the Criminal Code . The Crown had entered a stay of proceedings on the other count on the Information, which alleged

impaired operation of a motor vehicle, contrary to s. 253(1)(

a) of the Criminal Code. [2] In an interim ruling (2011 SKPC 3 , 2011 SKPC 003) the Court had concluded the accused’s rights to counsel unders. 10(

b) of the Charter had not been infringed. However, there remain the following issues to be determined by the Court: Are the entries on the Certificate of Analyses sufficiently reliable to prove beyond a reasonable doubt the particulars of the time of thesamples and the results, as contained in the Certificate of Analyses? Is the evidence for the Crown sufficiently reliable to prove beyond a reasonable doubt that the samples were taken “as soon aspracticable” as set forth in ss. 254 and 258 of the Criminal Code respectively?

ANALYSIS The entries contained on the Certificate of Analyses [3] The pertinent portion of the Certificate of Analyses contains the following: THAT the first of the said samples was taken at 2331 hours on the 25 day of July, 2009, and that the result of the analysis of this samplewas 190 milligrams of alcohol in 100 millilitres of blood; THAT the second of the said samples was taken at 2354 hours on the 25 day of July, 2009, and that the result of the analysis of thissample was 180 milligrams of alcohol in 100 millilitres of blood. [4] All of the blank underlined portions were filled in by handwriting.

None of the entries have any colons, periods, decimals orpunctuation of any nature. [5] In respect to this matter the accused has filed the following judgments: R. v. Larry Pyle (unreported, Alta. Q.B., Hope J., Jan. 15/82); R. v. Dol, [1999] O.J. No. 1832 (Ont. Ct. Justice, Douglas J.); R. v. Marvin Thibert (unreported, Alta. Q.B., Costigan J., Feb. 26/91); R. v. Ronald Blakely (unreported, Alta. Prov. Ct., Bradley J., June 16/63). [6] The Crown submitted this material: Canadian Encyclopedic Digest - expression of time/time of day; R. v. Bernier, 1977 CarswellNB 355 (N.B. Prov. Ct., Tomlinson PC); R. v.

Carrie, 1997 CarswellOnt 3587 (Ont. Ct. Justice, Libman J.); R. v. Cardinal, 2001 ABQB 872 , 2001 CarswellAlta1427 (Alta. Q.B., Watson J.)

[ 7 ] Everything which has been filed in these proceedings by Counsel is very much appreciated. [ 8 ] Reference was also made by the accused to the

Interpretation Act , R.S.C. 1985, c. I-21, and in particular ss. 29 and 35 (

e) therein. It was submitted that there is nothing in the definition “standard time” which would fit the four digit numbers that form part of the information contained in the Certificate of Analyses as to what time these samples were allegedly received into the Intoxilyzer. [ 9 ] All of the authorities which the accused has filed are, of course, pretty much a product of their particular facts and none of them are binding. However, they do offer a variety of circumstances where, in each instance, the Court concluded it was not safe to rely on the particulars contained on each Certificate of Analyses.

In Pyle, supra, the Court noted as follows, starting at p. 1: It seemed to me, that on the facts of it, most people would not have noticed the use of the decimal point rather than the use of the colon, other than, as I say, an astute wide awake lawyer. However, I am not convinced of the merits of the appeal, and I concur with my brother Legg, that there is no such time known to the Court as one point two one (1.21) and one point three eight (1.38) in the sense that that it may well create an ambiguity from the accepted way of writing 21 minutes after 1 and 38 minutes after 1 by use of the colon.

With respect to whether or not such an error in the use of a decimal point can be corrected by the evidence of the attending Constable rather than the analyst, in this case I do not need to decide that, because there is no evidence that corrects or explains or clears up the ambiguity in the times stated in the certificate.

The result, of course, is that there is not 15 minutes between the taking of the two tests, and the appeal is therefore allowed. [ 10 ] In the judgment of Dol, supra, the Court concluded it could not rely upon the efficacy of the entries contained in the Certificate of Analyses, noting the following commencing at para. 8: 8 The issue to be determined in this case is whether or not the manner of the recording of the times on the certificate is, in conjunction with the other evidence on this point, sufficient for the purposes of

section 258(c)(ii) and 258(d.1) of the Code , which preconditions the use of the results of breath tests to presume the blood-alcohol concentration at the time of driving on compliance with the requirement that: Each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken . . . 9 More precisely, where the times on the certificate as recorded, as here, with the hour recorded, followed by a colon, followed by the minute, but with no indication of the second (then followed by the a.m. or p.m. indicator) is it possible to conclude that an arithmetic difference of 16 minutes between the minute records “an interval of at least fifteen minutes”, given that each minute has, itself, a duration of 60 seconds? [ 11 ] The Court in Thibert, supra, noted the issue therein, stating at p. 1, as follows: The Accused appealed his conviction of an offence under

section 253 (

b) of the Criminal Code . The evidence at trial consisted of viva voce evidence from the investigating police officer Constable Murray and a Certificate of Analyses prepared by someone other than Constable Murray. The times set out in the Certificate for the taking of two breath samples were 208 A.M. and 226 A.M. That is, the stated times did not include a colon between the first digit and the second digit.

It is the position of the Accused that the times set out in the Certificate are times unknown at law and, to the extent that such an error in the Certificate might be corrected by viva voce evidence, the evidence in this case was insufficient to accomplish that result. [ 12 ] And concluded as follows at p. 4: In this case, the Crown contends that no real ambiguity arises from what the Crown suggests is the omission of a colon in the times set out in the Certificate and that the omission is a mere matter of style and not of substance.

Alternately, the Crown contends that although Constable Murray did not expressly state the times of the samples, his other evidence made it unambiguous that the times set out in the Certificate must mean 2:08 A.M. and 2:26 A.M. I am of the view that there is a real ambiguity in the Certificate. 208 A.M. and 226 A.M. are not, in the absence of colons, times recognized in common usage or at law.

Without viva voce evidence as to the specific times of each sample, I cannot conclude that the numbers set out in the Certificate are times which are accurate but for the omission of a colon. [ 13 ] Finally in Blakely, supra the Court noted as follows commencing at p. 3: The final submission of the Defence concerns the times recorded in the Certificate of Analyses upon which the Crown relies in respect to the charge under

Section 253 (b). The times of taking the samples as set out in the Certificate of Analyses are 17:35 p.m. and 17:52 p.m. on the date in question. Defence argues that these are not times known to the law and refers the Court to the case of The Queen and Gladue , a decision of Mr. Justice Legg, Alberta Court of Queen’s Bench, October 2, 1981, in which case the Certificate was not validated on the basis that therein the times were stated to be 1.58 a.m. and 2.19 a.m. Mr.

Justice Legg stated, and I quote, “There is no such time known to the Court”. [ 14 ] And concluded as follows commencing at p. 5: This Court is of the opinion and holds that the decision of Mr. Justice Legg binds in the present case, and that the times which are before the Court being a combination of the two systems are not a time known to the Court, and that the golden rule as set out in Bykowsky would apply in the situation where other evidence, viva voce evidence was being provided by way of explanation or correction in respect to the times which are before the Court.

But those times standing alone before the Court are not sufficient. The times are not known to the Court, and accordingly the evidence in respect to the times of the taking of the samples is non-existent. And there is evidence to the contrary. [ 15 ] As noted, none of the prior mentioned judgments are binding but they do exemplify the same nature of analysis and result as occurred in R. v. Michel , 2011 SKQB 356 (Sask. Q.B., Scherman J.) which I had located.

While the Michel judgment may well be distinguishable, it is nonetheless persuasive. [ 16 ] In Michel , supra, the accused had successfully appealed his conviction regarding the Certificate of Analyses which included “.200 milligrams” and “.190 milligrams” per 100 millilitres of blood. The issue of the decimal points in front of “200” and “190” had not been noticed until argument however, it was resolved by the trial judge as noted in para. 3 of the appellate judgment: [3] The learned Provincial Court judge dealt with this issue by finding and holding that:

1. The figures of “.200” and “.190” were obvious typographical errors because readings of .200 and .190 make no sense while readingsof 200 milligrams and 190 milligrams do make sense in the context of the charge laid. 2. The law permits a court to take a pragmatic approach when Certificates of Analyses contain an omission or typographical errorprovided the accused has not been prejudiced and the error is manifest having regard to the evidence. 3. The accused was not prejudiced because people generally understand the offence is over .08 which means 80 milligrams.

The accusedwas not misled and knew the case he had to meet. [17] As part of its analysis, the appellate court had also referred to s. 258(1)(

g) of the Criminal Code commencing at para. 4 asfollows: [4] Section 253(1)(

b) of the Criminal Code stipulates that the offence is having a concentration of alcohol in the blood that “exceedseighty milligrams of alcohol in one hundred millilitres”. The only proof tendered for this constituent element of the offence was theCertificate of Analyses.

Section 258(

g) of the Criminal Code reads as follows: Proceedings under

section 255 258.

(1) In any proceedings under subsection 255(1) in respect of an offence committed under

section 253 or subsection 254(5) or in anyproceedings under any of subsections 255(2) to (3.2), ... (

g) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), a certificate of aqualified technician stating (

i) that the analysis of each of the samples has been made by means of an approved instrument operated by the technician andascertained by the technician to be in proper working order by means of an alcohol standard, identified in the certificate, that is suitablefor use with an approved instrument, (ii) the results of the analyses so made, and (iii) if the samples were taken by the technician, (A) [Not in force] (

B) the time when and place where each sample and any specimen described in clause (

A) was taken, and (

C) that each sample was received from the accused directly into an approved container or into an approved instrument operated by thetechnician, is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to havesigned the certificate; [5] There is authority that holds where there is viva voce evidence (including viva voce evidence from other than the analyst)establishing typographical errors in the certificate, the court can correct those errors. See: R. v. Bykowsky (1980), 1980 ABCA 220, 23 A.R. 426 (C.A.); R. v.

Rebelo (2003), 48 M.V.R. (4th) 102 (Ont. S.C.J.), and R. v. Anderson (1981), (SKKB), 15 Sask. R. 347 (Q.B.).

[6] However, as s. 258(

g) states, the certificate is evidence of the facts alleged in the certificate. In this case, there was no evidencepresented to the effect that the certificate was in error and indicating what the correct readings were.

Rather, the Provincial Court judgeconcluded, for the reasons that he expressed, that there must have been an error since, as he saw it, such readings would not support thecharge subsequently laid and the police proceeded to lay the charges. [7] An inference cannot be drawn where the evidence is equivocal in the sense of being consistent with other inferences or conclusions.Indeed, in this case, I am of the opinion that the trial judge’s conclusion is more properly categorized as conjecture than inference. [8] In Canadian Pacific Railway Company v.

Murray, (SCC), [1932] S.C.R. 112 at 115-117, the Court approved thefollowing from Jones v. Great West Railway Co. (1930), 47 T.L.R. 39: The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of nolegal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence,and if it is a reasonable deduction it may have the validity of legal proof. The attribution of an occurrence to a cause is, I take it, always amatter of inference.

The cogency of a legal inference of causation may vary in degree between practical certainty and reasonableprobability. [18] And finally, commencing at para. 11: [11] With all due respect to the learned Provincial Court judge, the logic used cannot be accepted in the circumstances at hand. Theanalyst’s responsibility was to administer the test and record the results accurately. The analyst certified the statements in the certificateto be true.

Section 258(

g) stipulates that the certificate is evidence of the facts alleged in the certificate, and s. 258(

c) provides thatevidence of the results of the analyses is conclusive proof of the concentration of alcohol in the accused’s blood. [12] While the learned judge may have been correct that there was a typographical error, convictions on the basis of possibilities or evenprobabilities are not acceptable. It is my opinion that, in the absence of evidence of error and evidence of what the correct readings were,it was not open to the trial judge to convict. The accused is entitled to the benefit of any doubt and to not be convicted unless and until hisguilt has been established beyond a reasonable doubt.

The facts of this case are not such as to have permitted the trial judge to concludebeyond a reasonable doubt that the proper readings on the analysis were 200 milligrams and 190 milligrams in 100 millilitres of blood. [19] Likewise, s. 258(1)(

c) of the Criminal Code makes reference to some of the constituent element in part as follows: (

c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if . . . (ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case ofthe first samples, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the sampleswere taken, . . . CONCLUSION [20] The Court has given careful consideration to the material which has been filed by the Crown, but it is not overly pertinent inall the circumstances.

As well, the witnesses for the Crown did not offer any explanation as to how the handwritten four digit numbers,without colons, periods or decimals can be relied upon to prove “standard time” as contemplated in the

Interpretation Act. Without thatnature of explanation and clarification from the Crown in this instance, it is not appropriate for the Court to speculate. Therefore theCrown was unable to prove beyond a reasonable doubt that there was an interval of at least fifteen minutes between the samples. As

such the accused is not guilty of the count of “over .08”, contrary to s. 253(1) (

b) of the Criminal Code . [ 21 ] Therefore as well there is no need for the Court to consider the issue of whether the breath samples had been taken “as soon as practicable”, as set forth in ss. 254(3) and 258 of the Criminal Code . ___________________ P.S. Kolenick, J