R. v. Rowntree, 2014 ONCJ 724

Information No. 13-1314 Citation: R. v. Rowntree , 2014 ONCJ 724 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. RANDALL ROWNTREE R E A S O N S F O R S E N T E N C E BEFORE THE HONOURABLE JUSTICE B. PUGSLEY on September 18, 2014 at ORANGEVILLE, Ontario

APPEARANCES: M. Poland Counsel for the Crown M. Caroline Counsel for R. Rowntree R E A S O N S F O R S E N T E N C E PUGSLEY, J. (Orally): Mr. Rowntree faces a single charge of driving with excess alcohol. The Crown called a single witness, Provincial Constable Jason Mask. Constable Mask was both the investigating officer and thequalified technician who tested Mr. Rowntree. The defence challenges the admission into evidence of the Certificate of QualifiedTechnician. The facts are not complex for the purpose of this ruling. Constable Mask stopped Mr. Rowntree at a RIDE checkpoint. Mr.

Rowntree failed an approved device test and was arrested on thecharge before the Court, given a caution, rights to counsel and a breath demand, and subsequently transported to the detachment forbreath tests by Constable Mask. After testing, the defendant was served various documents and was released. The officer testified that he forgot to write the name of the manufacturer, Calwave, on the Certificate of Qualified Technician. He gaveoral evidence on the subject. The Crown sought to file Constable Mask’s Certificate of Qualified Technician on the trial, but the defendant objected.

In support of thedefendant’s objection counsel cited an older case in the Ontario Court of Appeal from 1982, R v. Pearce, (1982) (ONCA), 3 C.C.C. (3d) 434. Counsel submits that: 1. Pearce is still binding upon me; and 2. Pearce conclusively stands for the proposition that if a Certificate of Qualified Technician is not proper on its face, it may not be filedfor any purpose. Here, the certificate is missing the manufacturer’s name of the alcohol standard solution and, is therefore, defective.

A defectivecertificate cannot be made an exhibit according to the plain wording of Pearce it is submitted even if particulars of the defect areprovided the Crown disputes the defence submission. Oddly enough, for a case cited by the defendant as leading to such a significant result at law, R. v. Pearce has been largely uncited forover the last 32 years. Regina v. McKeown in the Ontario Court of Appeal in 1987, distinguished Pearce on the facts and Justice Hill,sitting as a

Summary Conviction Appeal Court Justice in R. v. Carbno, cites Pearce, but for a different premise. InCarbno, Justice Hill allowed oral evidence to cure a defect on a Certificate stating at paragraph 12 that “compelling authority” allowssuch corrective evidence.

Further, Justice Durno, in R. v. Rebelo,

(2003) O.J. No. 4634, another

summary conviction appeal case, analyzes the competing law onthe issue as it existed in 2003. His Honour noted at paragraph 34 of his decision that the Supreme Court of Canada decision in R. v.Noble (SCC), [1978] 37 C.C.C (2nd) 193, spoke to the conditions under which the Certificate is admissible. NotablyNoble was not cited in Pearce. As Justice Durno notes at paragraphs 38 through 40, the admission of a Certificate is not an all or noneapproach. His Honour agreed that a portion of the certificate may be relied upon. In Mr.

Rowntree’s case, I am urged to accept Pearce as an all or nothing black and white statement of the law, such that a defectivecertificate cannot be cured by other evidence and, simply put, cannot be filed at all. With respect, the case law cited by Justices Hill andDurno in the cases set out above belie this submission. Further, Pearce is distinguishable on the facts. In Pearce, the Crown case stoodor fell on the admissibility of the certificate, a certificate missing a critical element. In Mr. Rowntree’s case the qualified technician testified and was cross-examined.

The omission in the certificate was identified and themissing information was provided by the officer and tested in cross-examination. Regina v. Pearce dealt with the admission of deficient certificate when there was no other evidence. That case cannot be extended tomean what the defendant submits here, that no deficient certificate can ever be entered into evidence. The preponderance of case law cited by Justices Hill and Durno speaks to the overall goal of the court to decide cases based upon thewhole of the admissible evidence.

Part of the totality of the evidence in this case is the evidence of both the officer and the certificatethat that officer created. In my view, the Certificate of Qualified Technician is, therefore, admissible into evidence. It is now remarked as Exhibit 3. Thank you. Given your earlier comments, the Crown is not calling any evidence. The defendant has no motion, does not intend to call evidence? EXHIBIT NUMBER 3: Certificate of Qualified Technician – produced and marked. MR. CAROLINE: That’s right. THE COURT: What’s the Crown’s submission? MR.

POLAND: My respectful submission, Sir, on the evidence of Officer Mask, this case is proved beyond a reasonable doubt. THE COURT: Mr. Caroline. MR. CAROLINE: No submissions, thank you. THE COURT: All right. Will you stand up please sir? The evidence before me which I’ve just ruled on is the final link in completingall the evidence that the Crown needs to show beyond a reasonable doubt for the purpose of you being found guilty on the charges beforethe Court. The evidence of the Crown has to stand alone. It has met that test, even standing alone and, therefore, necessarily there mustbe a conviction registered.

Is the Crown alleging a record? MR. POLAND: No, Sir. THE COURT: What’s the Crown’s submission on sentence, please? MR. POLAND: I make no submissions, Your Honour. THE COURT: Mr. Caroline? MR. CAROLINE: My client’s 54. He’s married. His wife is here in court. THE COURT: Yes. MR. CAROLINE: He is self employed in the automotive service industry. He owns a, a spring and radiator shop in Bolton. Hedoesn’t live anywhere near Bolton. He lives in Hockley Valley and he needs his vehicle for the purposes of his employment, so he’sgonna have to work that issue out. The, the lowest reading is 90 truncated and....

THE COURT: Minimum sentence? MR. CAROLINE: I, I think that’s as low as it can go, thank you. I have his licence to surrender and a, that would include a 12month prohibition as well as a thousand dollar fine. THE COURT: Has to be, yes. Anything you want to say, sir, before sentencing? You don’t have to, but now’s your chance, if

you want. RANDALL ROWNTREE: No, thank you. THE COURT: The lowest sentence that I can impose in this case is a $1,000 fine plus the Victim Fine Surcharge and the lowest prohibition order I can make is a one year prohibition. I make both that $1,000 fine and the one year prohibition order. Although you’re no longer eligible for Stream A, you may be able to apply to the Interlock program and drive under certain conditions under what they call Stream B, before that year is completed. There’ll be some paperwork for your client to sign upstairs in the main court office, please, Mr. Caroline... MR. CAROLINE: Thank you.

THE COURT: ...before he leaves the building today. MR. CAROLINE: His licence has been handed in. THE COURT: Thank you. Thank you, sir. Good luck. MR. CAROLINE: Yes, might he have 90 days to pay the.... THE COURT: Of course, 90 days if that’s enough. RANDALL ROWNTREE: Thanks a lot. THE COURT: All right, 90 days to pay the fine. Thank you. MR. CAROLINE: Thank you. WHEREUPON THIS MATTER CONCLUDES ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S ENTERED ON PAGE Reasons for Sentence 1 E X H I B I T S EXHIBIT NUMBER ENTERED ON PAGE 3 Certificate of Qualified Technician

Transcript Ordered: October 2, 2014 Transcript Completed: January 28, 2015 Transcript Completed: January 28, 2015