R. v. Tanu Date:, 2011 BCPC 291

Citation: R. v. Tanu Date: 20110706 2011 BCPC 0291 File No: 83607-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROBERT TANU RULING ON VOIR DIRE OF THE HONOURABLE JUDGE P. de COUTO Counsel for the Crown: A. Yusuf Counsel for the Defendant: S. Hutchinson Place of Hearing: Port Coquitlam, B.C. Date of Hearing: June 6, 2011 Date of Judgment: July 6, 2011 [ 1 ] This is the second voir dire in the Crown’s case in this matter, the circumstances of which I summarized in my earlier decision on April 5, 2011.

As a result I do not propose to review the evidence in any great detail except as it relates to the issue in this voir dire. [ 2 ] The accused was pulled over by Cst. Arpink of the Coquitlam RCMP on October 1, 2009 and as a result of certain observations indicating recent alcohol consumption, he was taken to the Port Moody Police Station for the taking of breath samples pursuant to a demand made to him by the constable. The accused provided two breath samples to Cst.

McCuaig, the breathalyzer operator, who prepared a Certificate of a Qualified Technician setting out the results of the analysis. [ 3 ] At issue is whether the Crown has established that a true copy of that Certificate was served on the accused. While Cst. Arpink testified to that effect in his direct examination, in the course of his cross-examination he introduced an uncertainty in that he testified he had no present independent specific recollection of copying or comparing the copy with the original certificate to satisfy himself that the copy was a true and accurate copy. [ 4 ] Mr.

Hutchison, on behalf of the accused, argued that as a result the Crown failed to meet the test set out in sec. 258(7) of the Criminal Code which would allow the Crown to rely on an evidentiary shortcut available to it under that

section by having the Certificate of the Qualified Technician entered as an exhibit for proof of the results of the analysis of the breath samples. He seeks to have the Certificate ruled inadmissible and relied on R. v. Coldwell, Quesnel Registry #22089, May 29, 2006 (BCPC), R. v. Northrup, 2009 BCPC 348 , and R. v. Holland, 2010 BCPC 141 (CanLII) , 2010 BCPC 0141 for authority in support of his position. [ 5 ] Mr.

Yusuf argued that the court can consider the Affidavit of Service on the reverse of the Certificate which confirms service by the constable of a true copy upon the accused, and that as it was made under oath, the contents provide proof of the issue, notwithstanding that the constable had no present recollection of it. He relied on the decision of Crawford, J. in R. v. Heppner, June 30, 2009, New Westminster Registry #X73667-1 (BCSC) for his position. [ 6 ] In Coldwell the police officer testified he received the certificate from the breathalyzer technician and gave a copy of it to the accused.

While the court found that his recollection was less than perfect, he believed he checked “the pertinent parts”, which the trial judge found to mean only the written parts of the document and not the pre-printed parts, when he compared it with the original. Blake,

PCJ found that this comparison was insufficient and excluded the document. He thus accepted, it seems to me, the testimony of the officer that he compared the copy to the original, but only to the extent of the written portions of it, notwithstanding that in his Affidavit of Service on the back of the Certificate he had stated that a true and accurate copy had been served on the accused.

It would thus appear that his viva voce testimony did not reconcile to some extent with what he had stated in the Affidavit of Service. [ 7 ] In Northrup it became apparent from the police officer’s cross-examination that he did not specifically recall not only copying the original of the Technician’s Certificate, but serving the copy of it on the accused as well.

Woods, PCJ followed Northrup in arriving at his decision in Holland , concluding that the officer had “no surviving present recollection of having assured himself that… the copy and the original were identical” and found that the officer had instead relied on his usual practice. On that basis he ruled that the evidence of establishing that a true copy of the certificate had been served on the accused fell short and excluded the document. [ 8 ] It is clear from these decisions that the determination of the issue is dependent on the facts of the case.

It is thus necessary to examine the evidence that has been led as it relates to the issue. [ 9 ] Cst. Arpink testified in direct examination that Cst. McCuaig signed the certificate and gave it to him. He then completed the Notion of Intention to Produce at the bottom of the certificate and signed it.

He next made a photocopy of it and compared the two and satisfied himself that they were identical, following which he served the copy on the accused. [ 10 ] In cross-examination he retreated somewhat from that position, testifying he did not have a specific memory of filling in the Notice of Intention to Produce the Certificate of the Qualified Technician or of comparing the copy to the original certificate. He did, however, insist that he had given Mr. Tanu a copy of the certificate. While he agreed that Mr. Tanu’s name and the date set out in the Notice

section of the certificate were not in his handwriting, he stated that the address of the accused was in his handwriting, and that the signature at the bottom of the Notice was his. When asked by Mr. Hutchinson, “Is it also fair to say that without the paper being in front of you, you aren’t sure of what you’ve done?” he replied, “I know I gave him that paper.” When defence counsel then said, “That’s not what I’m asking you…” the constable again replied, “I know I gave him a copy of it”.

His testimony further disclosed that while he had not made a note of serving the accused with the copy of the certificate in his notebook, he had written it down in the Report to Crown Counsel, which he prepared on his computer in the police vehicle as soon as he had dropped the accused off following his release. [ 11 ] He was asked in cross-examination, “The Report says that you provided a copy of the Certificate of Qualified Technician, is that correct?” and he replied, “That’s correct.” He was then asked, “That… is it fair to say that because you have a note of it, that’s why you know you did it?

You have no specific memory of doing it?” His answer was, “Yeah”. [ 12 ] In view of the fact that he had made a note of it shortly after the event while the matter was still fresh in his mind, and his insistence in his testimony that he knew he gave a copy of the certificate to the accused, I accept his viva voce evidence and am satisfied that Mr. Tanu was provided with a copy of the original Certificate. It is in this respect, in my opinion, that this case differs from the cases referred to by Mr. Hutchinson. Further, it seems to me that Cst.

Arpink’s independent recollection of giving the accused a copy of the document corroborates and confirms the fact of service as set out in the Affidavit of Service. [ 13 ] Is this sufficient to satisfy the requirements set out in Sec. 258(7) of the Criminal Code which would allow the Crown to rely on an evidentiary shortcut available to it under that

section by having the Certificate of the Qualified Technician entered as an exhibit for proof of the results of the analysis of the breath samples? [ 14 ] As noted above, Mr. Yusuf’s position is that it is and refers to Heppner, supra, for his authority. Mr.

Hutchinson, on the other hand, has argued that this case only stands for the proposition that the Affidavit of Service attached to the reverse of the Certificate only goes to proof of the fact of service of the document but does not go so far as to say that it also is proof of the contents of what was served. [ 15 ] As a result the case requires closer examination. In Heppner an issue was whether there was evidence to establish that the accused was served with a true copy of the Certificate of Analysis. [ 16 ] It seems to me that the very distinction that Mr.

Hutchison sought to make in distinguishing this case was one that Crawford, J. was quite alive to when he stated the following in para. 8: “As Crown Counsel points out, there is a big distinction between service of documents that may be put in evidence at trial and proof beyond a reasonable doubt of the elements of a trial.” He then referred to Sec. 4 of the Criminal Code which provides for proof of the fact of service of a document by way of an Affidavit of Service. [ 17 ] In that case, as in this case, the affidavit of service on the back of the certificate attested to the fact that the deponent, on the date stated, served the person named in the Notice of Intention to Produce Certificate with a true and accurate copy of the Certificate.

In his decision Crawford, J. referred to R. v. Northrup , supra, one of the cases relied upon by the defence and, in my opinion, distinguished it insofar as he did not follow it. I also note that the other cases referred to by Mr.

Hutchinson pre-dated Heppner, and further, that if the principles in Heppner apply, they are binding on this court. [ 18 ] Crawford J. in para. 13 stated, “As I say, in terms of principle and without reading the decisions, it would be my view that proof of service of documents is dealt with adequately by an affidavit and the deponent can be of course cross-examined at trial.” It seems to me that this paragraph specifically addresses proof of the fact of service of a document. [ 19 ] The court continued, however, with the following in the next two paragraphs, para. 14 and 15: [14] The reality of it is that we are asking the police officers to swear in court on something that has occurred well over two years before and if the affidavit for the contemporaneous service of the document is attacked some two years later, no doubt there will be difficulties with that.

Prima facie that affidavit must stand and, of course, on the document, as is presently put before the Court, is the reverse side of the document which has the information that is important to whether there is proof of the charge against the accused. … [15] In my opinion, without great consideration of these kinds of documents, the affidavit of service establishes the service and that is sufficient proof on a balance of probabilities.

[ 20 ] As I read these two paragraphs it seems to me that Crawford J. drew a distinction between the affidavit going to the proof of service of the document and to the proof of the charge against the accused which was set out in the relevant information on the reverse side of the certificate.

In my opinion, he concluded in paragraph 15 that the affidavit of service established not only service of the document, but in using the word “proof” in the context of the above quoted paragraphs, also established the kind of document which was served on the accused, that is, a true and accurate copy of the Certificate, which then provided prima facie proof of the elements set out in sec. 258(7) of the Criminal Code . [ 21 ] In my view that approach is also applicable to the case at bar in which the affidavit of service is set out in the same wording as was contained in the affidavit before Mr. Justice Crawford.

As there is no difference in the material wording in both instances it seems to me that his decision is not only applicable but also binding on this court. As a result I am satisfied on the basis of the wording of the affidavit of service of the copy of the Certificate of a Qualified Technician which is set out on the reverse of that document, taken together with the viva voce testimony of Cst.

Arpink as it relates to service based on the notes he made in his police vehicle shortly after the event while it was still fresh in his mind, that not only was a copy of the certificate served on the accused, but that it was a true copy. [ 22 ] As a result of my conclusion, notwithstanding Mr. Hutchinson’s valiant efforts, his application to exclude the Certificate on this basis is dismissed for the above reasons. ______________________________ The Honourable Judge P. de Couto Provincial Court of British Columbia