R. v. Vulcano Date:, 2011 BCPC 201

Citation: R. v. Vulcano Date: 20110222 2011 BCPC 0201 File No: 83167-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BARBARA DANUTA VULCANO ORAL RULING ON VOIR DIRE OF THE HONOURABLE JUDGE ST. PIERRE Counsel for the Crown: R.W. Skolrood Appearing as Agent for D. Albert, Counsel for the Accused: B. Jessop Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: September 20, 2010 and January 28, 2011 Date of Judgment: February 22, 2011 [ 1 ] THE COURT : Ms.

Vulcano is charged with what is commonly referred to as impaired driving and driving over .08. [ 2 ] The date of the offence is July 26th, 2009; the trial commenced September 20th, 2010, and continued with submissions on January 28th, 2011. [ 3 ] A voir dire was conducted with respect to the investigating officer's evidence and upon that voir dire concluding, counsel sought a ruling on several issues that arose in that hearing. [ 4 ] The defence makes three submissions.

The first argument, if successful, would result in the Certificate of Qualified Technician not being admissible into evidence; the other two, if successful, would result in the presumptions under s. 258 not being applicable. [ 5 ] The first issue concerns a failure of the investigator to provide notice of the Certificate's production into evidence as required under s. 258(7) of the Code . [ 6 ] The second two issues are basically that the officer did not have reasonable grounds to issue a breath demand, and in two parts the defence says that there was a failure of the investigator to properly articulate a legal basis upon which she could have made a breath demand.

[7] Specifically, in relation to the reasonable grounds, the defence argues that the officer's stated grounds were that she had a"suspicion" as opposed to reasonable grounds that an offence was committed which means that the demand was not made pursuant to s.254(3) of the Code. [8] The second aspect of that argument is that the defence says there was a failure of the investigator to properly articulate a basisupon which she believed that the time of the care or control was within the previous three hours. [9] The Crown filed helpful written submissions relating to the issues on the voir dire and the Crown maintains that if the evidenceis assessed as a whole, it is clear that neither of these allegations can be established by the defence. [10] I am going to deal firstly with the Certificate.

Section 258(7) of the Criminal Code provides:

(7) No certificate shall be received in evidence pursuant to paragraph (1)(e), (f), (g), (

h) or (

i) unless the party intending to produce ithas, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate. [11] Constable Yoc testified that there were some five attempts to obtain two samples of Ms. Vulcano's breath. Several invalidsamples were obtained during this process. Constable Yoc then took the Certificate of Qualified Technician prepared by ConstableDesjarlais, who was the breath technician, and she copied it. [12] There is no issue in my mind that Ms.

Vulcano was served a true and accurate copy of the original document prepared byConstable Desjarlais, and many of the Crown cases deal with that issue. On the bottom of the same page of the Certificate of QualifiedTechnician, that part of the document reads -- and there is some pre-printing there -- that: To Barbara Vulcano of Delta, take notice that pursuant to paragraphs 258(1)(

g) and 258(7) of the Criminal Code the prosecution intendsto produce in evidence a Certificate, a copy of which appears above. It is dated 26th day of July, 2009. [13] There is a space for a signature at the bottom of the notice of intention and presumably -- and it says right there underneath theline for the signature -- it says "Signature of person serving this notice for the prosecution". There is no signature affixed to that portionof the document in this case.

That part of the document is blank and Constable Yoc said that it is her normal practice to sign that and shealso suggested that it was now her current practice to read word-for-word the Certificate and the Notice of Intention. [14] On this occasion, however, Constable Yoc testified that when she served the document, that is, the combined Certificate and theNotice on Ms. Volcano, she explained what the Certificate was and told her to provide it to her lawyer. With respect to the Notice, shesaid "Word-for-word, I did not explain the Notice of Intention".

She could not recall precisely what information was relayed to theaccused in respect of the Notice. [15] Mr. Albert's submission on behalf of his client is that in the unique circumstances of this case, given the problems obtaining thesamples in conjunction with the Notice not being signed and the inability of Constable Yoc to positively testify as to what informationwas actually relayed respecting the Notice, s. 258(7) has not been complied with. He provided a case called R. v. Fetterley, [2004]B.C.J.

No. 1859 a decision of Judge Rodgers of the Provincial Court in North Vancouver. [16] The Crown at p. 3 of their argument essentially says that Constable Yoc agreed that she did not read the Certificate word-for-word but she explained what the Certificate was and told Ms. Vulcano to produce it to her lawyer and that that is sufficient notice. I canrefer to the contents of the Certificate in determining the necessary nexus between the Certificate and the charge. [17] There were a number of cases provided by the Crown.

I will not list all of them but what I will do is I will provide the index tothe Crown casebook of authorities for the file and that in the future if it should be required it is there.

I have made the mistake in thepast of not listing all of the cases that have been provided to me only to find out later that when another judge disagrees they might thinkhere the Court was not given one particular case or another case and I am not going to make that mistake here. [18] The initial question I suppose is what is the burden of proof on the Crown when it comes to establishing whether therequirements of s. 258(7) have been met? There is clearly some debate among courts as to whether the standard is a balance ofprobabilities or proof beyond a reasonable doubt.

In my opinion, the standard of proof for the s. 258(7) notice requirements is proofbeyond a reasonable doubt. [19] I have carefully read R. v. Egger, (SCC), [1993] 2 S.C.R. 451 and, at paras. 31 to 33, Justice Sopinka's commentin a blood certificate case there, are completely applicable to this case as well, and I can really find no reason to distinguish the law as heexplained it. He stated that the standard was proof beyond a reasonable doubt. [20] I should note as well that I adopt the reasoning of Judge Cummings of the Alberta Provincial Court in a case called R. v. Mario,[2010] A.J.

No. 1163 on this point because there the judge conducted a very thorough analysis of the conflicting decisions on that issue. [21] Mr. Justice Branca in a case called R. v. Henri (1972), (BC CA), 9 C.C.C. (2d) 52 (B.C.C.A.) said this aboutthe Notice of Intention to produce a certificate. That was a drug case but again it is applicable here. He said: [17] This means at the very least that the notice must be precise and accurate and reasonably certain so that an accused person isalerted with certainty as to the procedure to be invoked in a timely manner. [22] Madam Justice Fisher's decision in R. v.

Moloney, [2006] B.C.J. No. 3280 (B.C.S.C.) has been of assistance as well. There, theCourt found that the primary purpose of the Notice was to notify the accused of the use the Certificate would be put to at trial. The Courtthere also noted that the Notice in that case was not signed and Justice Fisher noted that the signature of the investigating officer was notsomething mandated by the Code. The investigator there had photocopied the Certificate and served a copy on the accused. He told the

accused what the readings were and explained the results. What that explanation entailed specifically was not noted in that case. [23] So, clearly, an unsigned Notice, according to Justice Fisher, can constitute proper notice under s. 258(7) in the appropriate case. The question is: Is this one of those cases? [24] In this case the evidence of Constable Yoc is that she cannot recall what was said to Ms.

Vulcano as it relates to the Notice,except that she should take it to her lawyer. [25] Without deciding on the correctness of these decisions that deal with a lack of recall with respect to specific information beingrelayed, I find that there are cases that say quite clearly that that lack of recall can be remedied in some cases by evidence of what theofficer does as part of an invariable practice and I refer to R. v. Cunningham, 2006 ABCA 345 , [2006] A.J.

No. 1448 (Alta.C.A.) and I do not have to decide on the correctness of that because in our case the only evidence of Constable Yoc's practice at the timewas that she would normally sign the Notice but in this case she did not. [26] There is also support for the argument by Crown that the Notice can in certain circumstances be made by delivering the Notice tocounsel for the accused and that has been said in a number of cases, the most relevant one being R. v. Flett, [1970] B.C.J.

No. 553 fromJustice Davey our former Chief Justice of the Court of Appeal. [27] Even assuming that defence counsel was provided a copy of the Notice, however, that does not dispose of the argument that hasbeen advanced by counsel. [28] In considering the content of the Notice, the Court must take into account not only the written wording on the Notice but also thecircumstances under which it was given and the words spoken by the serving officer. [29] The evidence reveals that: • Firstly there were troubles in the testing process and that several invalid samples were provided in that process. • Secondly, Constable Yoc did photocopy a true and accurate copy of the original Certificate and it had a Notice at the bottom ofthat same page. • Thirdly, this document was served on Ms.

Vulcano. • Fourthly, Constable Yoc could not give positive evidence as to what information was relayed to Ms. Vulcano relating to theNotice. • Lastly, Constable Yoc did not sign the Notice. [30] The Crown is obliged to prove beyond a reasonable doubt that the Notice of Intention to produce the Certificate was givenpursuant to s. 258(7). [31] The case law supports the proposition that the investigator need not read word-for-word the Notice as the written document isself-explanatory. Neither is the failure of the investigating officer signing it fatal on its own to the finding of sufficient notice.

However,in this case there was trouble with the testing process. [32] It would be completely reasonable in those circumstances that the Certificate may not be used in evidence. Every case isdifferent and must be analyzed on the facts specific to that case. [33] In the context of an unsigned Notice, the absence of any positive evidence from Constable Yoc that she told Ms. Vulcano that theCertificate would be produced into evidence is highly relevant. [34] The circumstances here in my mind raise a very real doubt that Ms.

Vulcano or her counsel for that matter would be "Alerted tothe procedure to be invoked by the Crown". The evidence does not establish that it has been "clearly brought home" to the accused thatthe Certificate would be employed to establish the presumption in s. 258(1)(

g) of the Code and I find that the requirements of s. 258(7) ofthe Code have not been met and the Certificate is not admissible into evidence in these proceedings. [35] It is not entirely necessary to deal with the other submissions of Mr.

Albert on behalf of his client, that is, the reasonable groundsissues, but if it does become necessary I am going to give short reasons on that. [36] Specifically, the issue of the officer's stated grounds that she had a suspicion as opposed to reasonable grounds, there are casesthat say that a judge could and should in appropriate cases infer that the subjective belief existed even if it is not so specifically stated byan officer.

There are cases like that in the approved screening device context and others. [37] However, the case at bar is different because here there was positive evidence of what the subjective belief was and this officeris a professional witness, so I find that it is reasonable to assume that professional witnesses understand the import of their words when itcomes to crucial questions like what opinion is formulated as a result of observations.

In my mind, if you were to take that as a given weare to believe what a professional witness in this scenario says about what her subjective belief was, the import of that finding is thatthere is an invalid demand because it is made on less than reasonable grounds to issue the demand. That means the presumptionsnormally available in s. 258 are not available in this case. [38] With respect to the issue of the time of care or control, I did not find that argument to be persuasive at all.

I find that the officerdid have a proper basis upon which to believe the time of care or control was within the previous three hours and specifically herevidence was that even though she had to go back to the computer dispatch some time later to get times, the purpose of doing that was toprovide an actual number in her evidence really.

[ 39 ] In other words, it was clear from her evidence that she failed to note certain times in her notebook but that does not however change the fact that at the time of the incident she had present in her mind certain times. She knew from the computer screen in her police car that she was observing at the time of the incident that she was being dispatched at 0012 hours. The call had been created at 0008 hours. She knew the dispatch was to attend an accident that had "just happened". [ 40 ] She arrived on scene at 0024 hours and dealt with a scene that included ambulance attendants and witnesses.

It was an incident in a residential neighbourhood and involved a significant collision. It was perfectly reasonable to conclude the accident was recent and her failure to note those times in her notebook really did not go to the issue of whether she was able to form the requisite belief at the time. So I am not acceding to that argument. [ 41 ] In the result, then, s. 258(7) has not been established and the Certificate is not admissible. (ORAL REASONS FOR JUDGMENT CONCLUDED)