R. v. Kelly, 2023 NSPC 19

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Kelly , 2023 NSPC 19 Date: 20230508 Docket: 8533116, 8533117 Registry: Sydney Between: Her Majesty the Queen v. Robert Justin Kelly Judge: The Honourable Judge Shane Russell Heard: April 17,18,19, 2023, in Sydney, Nova Scotia Decision May 8 th , 2023 Charge: CC 320.14(1)(

A) CC 320.14(1)(

B) Counsel: Darcy MacPherson for the Crown James Violande, for the Defence Ruling: Motion for Directed Verdict INTRODUCTION [ 1 ] This decision deals with a very narrow but complex issue. Can a qualified technician offer viva voce hearsay evidence to prove that the alcohol standard used in the instrument was certified by an analyst? Unfortunately, the Supreme Court of Canada has thus far declined to address the issue. [ 2 ] As a result, two competing lines of authority have developed. The unresolved conflict in the law has been referred to as the great “G oldson/MacDonald Divide”.

This divide continues to have an active presence in busy trial dockets across the country. [ 3 ] Mr. Robert Kelly is charged with two offences from October 17, 2021: Count #1: Operate a conveyance while their ability to operate it was impaired to any degree by alcohol, or a drug, or both, contrary to

Section 320.14(1) (

a) of the Criminal Code of Canada . Count #2: AND FURTHER did within two hours after ceasing to operate a conveyance, have a blood alcohol concentration that was equal to or exceeded 80 mg of alcohol in 100 ml of blood, contrary to

Section 320.14(1) (

b) of the Criminal Code of Canada . [ 4 ] Due to several errors in the Certificate of Qualified Technician the Crown did not rely upon it at trial. As a result, the Crown lost the benefit of the “evidentiary shortcut”. This shortcut, under the Criminal Code , allows a properly completed Certificate of Qualified Technician, setting out the breath test results, to be filed for the truth of its contents without the need for viva voce evidence. In other words, a tendered Certificate of Qualified Technician serves as prima facie proof of all facts contained within it.

Most notably, it serves as the Crown’s shortcut to the presumption of accuracy of the breath readings. [ 5 ] Here, in an effort to prove its case, the Crown was forced to call the qualified technician. The qualified technician gave viva voce evidence on all aspects which would normally have been included in the Certificate of Qualified Technician. [ 6 ] In advance of trial the defence raised several anticipated Charter issues. The trial proceeded by way of a blended voir dire . At the conclusion of the trial proper counsel made a motion for directed verdict.

Counsel have agreed that Charter arguments will be heard once a ruling is made on the narrow but complex issue which forms the basis of the directed verdict motion.

ISSUE & LEGAL FRAMWORK The Legislation [ 7 ]

Section 320.31 of the Criminal Code outlines three things the Crown must prove in order to rely on the breath test results as conclusive proof of blood alcohol concentration (BAC). If certain preconditions are met, the results of the breath tests conducted with an approved instrument are presumed to be accurate. This is referred to as the presumption of accuracy. [ 8 ] In this case, the defence argues that the Crown has not proven the first of the three preconditions, which reads as follows: (

a) before each sample was taken, the qualified technician conducted a system blank test the result of which is not more than 10 mg of alcohol in 100 mL of blood and a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst. [ 9 ] At the heart of the accused’s argument are the words, “ alcohol standard that is certified by an analyst ”. In short, the accused argues that the Crown has failed to prove that the alcohol standard was “certified by an analyst” and therefore has not satisfied the first of the three requirements under

section 320.31 (a). [ 10 ] In addition,

Section 320.32(1) provides that a Certificate of Analyst is evidence of the facts alleged in the certificate regarding the alcohol standard without proof of the signature or the official character of the person who signed the certificate. [ 11 ] Finally,

Section 320.32(2) deals with notice of Certificate of Analyst. It states that no certificate shall be received in evidence unless the party intending to produce it has, before the trial, given to the other party reasonable notice of their intention to produce it and a copy of the certificate. POSITION OF THE PARTIES The Defence Position [ 12 ] The accused’s argument is essentially two-fold: 1. The evidence offered by the Crown supporting that the alcohol standard was certified by an analyst is inadmissible hearsay. Therefore, it is not admissible to establish the preconditions for the presumption of accuracy contained in

section 320.31 of the Criminal Code . 2. The Crown has not provided the accused with reasonable notice of its intention to produce the Certificate of Analyst and should be prohibited from relying upon it either directly or though the viva voce evidence of the qualified technician. The Crown Position [ 13 ] The Crown argues that hearsay evidence from a qualified technician is admissible to establish that the alcohol standard was “certified by an analyst”. As well, the Crown argues that sufficient notice of the Certificate of Analyst has been provided to the accused. Finally, regardless of the notice requirement in

section 320.32(2) the qualified technician can testify to the contents of the Certificate of Analyst and other facts surrounding it to satisfy the court that the alcohol standard used was “certified by an analyst”. FACTUAL BACKGROUND [ 14 ] Given that this motion deals with a very narrow issue the factual outline will be somewhat abbreviated. [ 15 ] On the evening of October 17, 2021, two friends attended the Old Triangle Alehouse in Sydney. The accused was seated at a table across from them. He was described as falling asleep with a partially full glass of beer in front of him.

He would close his eyes and his head was bobbing. He would lean forward then “jerk awake”. They asked a waitress to check and see if he was “O.K.”. [ 16 ] Later, the two friends encountered the accused outside in the parking lot. This time he was alone in the driver seat of his running and parked vehicle. His seatbelt was fastened, and he was staring at the screen of his phone. He was again noted as falling asleep and described as “not very alert”. [ 17 ] Police where phoned and Cst. Hooper arrived on scene at 9:14 pm. She made several observations of the accused.

There was a smell of alcohol from his breath, he advised he had one drink, his eyes were red and glossy, he passed her the wrong documentation, and was unsteady on his feet. As a result, the officer placed him under arrest for impaired operation of a conveyance. He was escorted to the police vehicle, eventually provided his right to counsel, then transported to central division lock-up. The accused was also read the breath demand and agreed to provide samples. [ 18 ] While at central division lock-up qualified technician Cst. Barkhouse took two breath samples from the accused.

The first breath sample was taken at 10:22pm with the second taken at 10:44 pm. The respective readings were 230 mg and 220 mg. [ 19 ] As stated, due to several errors in the Certificate of Qualified Technician the Crown did not proceed by way of tendering the certificate. The Crown called Cst. Barkhouse to give viva voce evidence on all aspects. Cst. Barkhouse, an officer with 16 years experience, referred to the printout of INTOX EC/IR II which was generated at the time of testing. He identified and certified the authenticity of this printout by way of viva voce evidence on the stand.

The printout had also been signed and dated by him. I am satisfied that the requirements have been met under

section 320.33 of the Criminal Code which reads: Printout from approved instrument

320.33 A document that is printed out from an approved instrument and signed by a qualified technician who certifies it to be the printout produced by the approved instrument when it made an analysis of a sample of a person’s breath is evidence of the facts alleged in the document without proof of the signature or official character of the person who signed it. [ 20 ] Cst. Barkhouse testified to the following: • On October 17, 2021, he took two breath samples from the accused Robert Kelly.

The first sample at 10:22pm was 230mg and the second at 10:44pm was 220mg. • He is a Qualified Breath Technician certified to operate approved instrument INTOX EC/IR II. Copies of his designation and the Royal Gazette were tendered into evidence by consent. • He conducted a 15-minute observation period prior to the taking of the first sample. • The alcohol standard used in the instrument was AIRGAS and lot number AG004801.

That lot number was printed on the cylinder tank which was used with the instrument. • The purpose of the alcohol standard is to ensure that the instrument is operating efficiently and accurately. The alcohol standard comes in the cylinder tank which was used with the instrument. • The alcohol standard was 82 mg/100ml at sea level. That was the standard value assigned to the cylinder tank which was used. Cst. Barkhouse testified that the standard was “checked by the analyst”.

He further added that “when the analyst checked that gas, I believe that’s the number they assigned to it”. • The value of the alcohol standard was noted on the cylinder tank, and he made that observation. • The results of the first and second calibration tests were 78 and 77. Both were within 10% of the target value of the alcohol standard. This satisfied Cst. Barkhouse that the instrument was working properly. • Prior to the taking of each breath sample, he conducted system blank tests. The results of each were zero and recorded by the instrument. Cst.

Barkhouse explained the purpose behind running system blank tests. The results satisfied him that the instrument was working properly. [ 21 ] The Crown asked Cst. Barkhouse several additional questions about the alcohol standard and whether it was certified by an analyst. Specifically, the officer was asked how he knew the alcohol standard was approved for use in the instrument when he received it. Cst. Barkhouse responded, “we receive a certificate of an analyst, two of them now, that come in the company of the cylinder of gas, when we receive it”.

He received a “photocopy” of the Certificates of Analyst which came with the tanks. He has seen the copies of these certificates and keeps them at the station. When matters go to court, he makes a copy of the copy of the Certificate of Analyst that comes with the alcohol standard. In his entire career he has never seen an original. [ 22 ] Both the Crown and defence referred Cst. Barkhouse to two documents. The officer identified both as being copies of two separate Certificates of Analyst.

He testified that both documents identify the alcohol standard as AIRGAS Lot AG004801 with the first purporting to be signed by analyst Ana Brown and the second signed by analyst Amy Minh. [ 23 ] During cross examination Cst. Barkhouse was asked several more questions about the alcohol standard and it being certified by an analyst. Some of the questions and answers included: 1. Q. And obviously we understand that in order for the sample to be taken to be valid you must be confident that would be… that the alcohol standard is certified appropriately, correct? A. That’s correct. Q.

And you don’t do that certification, the analyst does that. Correct? A. They do. Q. You are certainly not qualified to do that? A. That’s not…no. Q. Not in your job description? A. No, exactly. Q. And so, I want to make sure I understand you correctly. The actual alcohol standard, it comes in a tank? A. That’s correct. Q. Correct. That alcohol standard is certified by an analyst somewhere else? A. Exactly. Q. Okay, and you’ve never seen that analyst certify it, correct? A. No.

Q. No, okay; and obviously that needs to have been done in order for the sample to be taken appropriately, correct? A. Exactly. Q. Okay, and then you’ve got a certificate of an analyst, and there’s two, right? There’s one by Amy Minh and then you’ve got one by Ana Brown? A. That’s correct. Q. Right, and you agree with me that the copies are… what you have there are copies? A. They are copies. Q. Right, they are not the original documents? A. That is not the original document. Q. You agree with me that when you get the cannisters, you are given a copy? A. Yes. Q.

Right, and you keep that copy at the police station I assume? A. Yes. Q. And then you make the copies that you… that would be given out to the accused? A. They are copies on.. Q. From that copy, correct? A. Copies on copies. Q. So really what we have here is a copy of a copy? A. Absolutely. 2. Q. Okay, so you’ve never seen the original certificate analysis? A. There was never…no. Q. No, and that’s not provided to the police? A. No. Q. No, and that’s my understanding is why you get the digital copy, because the digital is an original. A. Which is… absolutely, which is standard practice now. Q.

Now going forward, right? A. Exactly. Q. And the reason for that is because this is not an original? A. That is not an original. [ 24 ] From a review of the above passages in conjunction with the totality of the officer’s testimony I find: 1. Cst. Barkhouse knew that the alcohol standard in the instrument was required to be certified by an analyst. 2. He never personally witnessed either of the two named analysts (Amy Minh and Ana Brown) certify the alcohol standard. 3. He had copies of two documents that were noted as being Certificates of Analyst.

One was in the name of analyst Amy Minh and the other was in the name of analyst Ana Brown. He has seen these two documents. These documents were shipped with the tanks of alcohol standard. One of these tanks was used in the instrument that took both breath samples from the accused. These two documents purported to declare that the alcohol standard was certified by an analyst. 4.

The alcohol standard used was certified by an analyst, however it was “certified by an analyst somewhere else”. [ 25 ] As noted, some of these factual findings, specifically the comments with respect to the alcohol standard being certified by an analyst are hearsay. I have yet to determine the ultimate issue which is whether the officer’s hearsay evidence on this point is admissible to prove this fact. ANALYSIS

Service of Notice [26] During his testimony Cst. Barkhouse referred to copies of what were referred to as two copies of Certificates of Analyst.Attached to both were two sworn affidavit of service documents. They confirm Cst. Noelle Hooper served documentation on the accusedon October 18, 2021. However, Cst. Barkhouse testified that neither affidavit refers to the service of a Certificate of Analyst. Bothaffidavits refer to service of a Certificate of Qualified Technician. [27] In addition, counsel drew Cst. Barkhouse’s attention to the bottom front page of both copies of the Certificates of Analyst.

Cst.Barkhouse testified that there is a title at the bottom of the page which reads “Notice of Intention to Produce Certificate”. It also reads“Take notice that, pursuant to subsections 320.32 (1) and 320.32(2) of the Criminal Code, the prosecution intends to produce in evidencethe original certificate, a copy of which appears above”. It is addressed to the accused “Robert Justin Kelly”, lists his civic address, andis also dated October 18, 2021. Cst. Barkhouse agreed with the defence suggestion that it appears to have been signed by Cst.

NoelleHooper. [28] The accused argues that the Crown has not proven notice of the Certificate of Analyst as required under

section 320.32(2) onthe basis of two things. First, the sworn affidavits reference the wrong certificate (Certificate of Qualified Technician not Certificate ofAnalyst). Second, at the bottom of both Certificates of Analyst reference is made to an intention to tender into evidence “the originalcertificate”. What Cst. Barkhouse had in his possession in court were copies and not originals. [29] I am satisfied that there was a deficiency in the service of notice. Proof of notice is on the balance of probabilities and notice isalso a concept and not a document R.v. Sirman, 2020 ABCA 174, R. v.

Redford, 2014 ABCA 336, and R v. Jackson, [2022] A.J. No.343. Proof of notice can be established by direct evidence, circumstantial evidence, or both. However, it must come from the evidenceand not through submissions of Crown counsel. I’ll turn to this last point momentarily. [30] As stated, the affidavits attaching to both Certificates of Analyst referred to the wrong document. The bottom of the page onboth documents under “Notice of Intention to Produce Certificate” does appear to have what is most likely the signature of NoelleHooper. Cst. Barkhouse believed this to be the case.

However, what remains lacking is any additional supporting evidence that sheactually served it on the accused. The fact that it is filled out certainly supports the logical inference that she intended to do so but thereis no confirmatory evidence that she ever provided it to the accused. There is no signature from the accused acknowledging service andas stated there is no supporting affidavit relating to this type of document. There is nothing in her affidavit confirming service of aCertificate of Analyst. [31] The Crown had the opportunity to ask Cst. Hooper on the stand if she ever served such a document.

For whatever reason theCrown bypassed this opportunity and chose to have Cst. Barkhouse comment with respect to service when he was not involved with thataspect of the investigation. [32] At one point the Crown argued strenuously that disclosure of the Certificates of Analyst had been made to defence counsel;that this alone is sufficient to establish notice. At one point the Crown wanted defence counsel to declare to the Court that suchcertificates were received from the Crown.

Defence chose not to offer this information and essentially held the position that the burdenrests with the Crown and counsel was not there to give evidence for or against his client. [33] I wish to note that I have no reason to doubt the very fair and honourable Senior Crown Counsel when he states that thedocuments were disclosed. However, at the end of the day defence counsel is correct. A court must decide cases on the evidencepresented through witnesses and exhibits. Furthermore, this very argument advanced by the Crown was specifically raised and rejectedby the court in R. v. Kerpan, [2023] S.J.

No.97 at paragraphs 85 to 93. I also reject such an argument here. [34] There is a long line of authority outlining that where the Crown intends to avail itself of such evidentiary shortcuts this requiresthat measures of care be strictly observed R. v. Kerpan, [2023] S.J. No.97, R. v. Kelly, [2019] N.S.J. No. 532. I agree and conclude thatthe copies of the Certificates of Analyst will not be tendered into evidence as stand-alone exhibits. [35] Having ruled on the first aspect of the defence argument on notice I will only add brief commentary with respect to the second.There is nothing in wording of

section 320.32(2) which specifically states that the Certificate of Analyst must be the original. Thecertificate may outline an intention to tender “the original certificate” however, the applicable

section of the Criminal Code does notspeak to requiring the original and only the original. [36] Despite finding that the crown has not provided sufficient notice of the Certificate of Analyst this does not end the matter. TheCrown’s position was clear. Their intention has always been to prove their case by way of viva voce evidence on all aspects.

They werenot presenting a certificate case either by way of Certificate of Qualified Technician, the Certificate of Analyst, or a combination of both.The question remains can the Crown call hearsay viva voce evidence from the breath technician to prove that the alcohol standard wascertified by analyst.This includes referring to copies of various documents in their possession to assist in providing such evidence. The Caselaw: Goldson & MacDonald Goldson Authority [37] The Alberta Court of Appeal in R. v. Goldson, 2021 ABCA 193 , [2021] A.J. No. 709 (Leave refused by the SupremeCourt of Canada R. v.

Goldson, [2021] S.C.C.A. No. 294) interpreted both sections 320.31 and 320.32. In Goldson, neither theCertificate of Analyst nor viva voce evidence of the analyst were tendered to prove the alcohol standard. The Court of Appeal decidedthat without evidence that the alcohol standard was certified by the analyst, the Crown could not rely on the presumption of accuracy. [38] A review of the historical facts in Goldson can be helpful in orientating the issue. They were well summarized in R. v.McDonald, [2021] B.C.J.

No.2260 at paragraphs 28 to 32: 28 Goldson had failed a roadside screening device, was arrested and taken to the RCMP detachment where he was required to provide

breath samples to a qualified technician (QT). The results of the breath test were 120 mg. and 130 mg. He was charged with impaireddriving and driving with an illegal blood alcohol limit. 28 At trial, rather than tendering a Certificate of Analyst, Crown called viva voce evidence from the QT. The QT gave evidence that thealcohol standard is certified by an analyst and that his knowledge of this was derived from a handwritten certificate on the side of theinstrument.

He also testified that there was an "approved certificate that's posted on the wall" and they would not conduct any tests if itwas expired. 29 The trial judge concluded that this hearsay evidence from the QT was inadmissible to satisfy the requirements of s. 320.31(1)(

a) thatthe alcohol standard was certified by an analyst. Goldson was acquitted. 31 The

summary conviction appeal court set aside the acquittal and concluded that if the QT could give evidence relating to theconditions set out in ss. 320.31(1)(b) - the 15 minute intervals - and (c) - the rounded results did not differ by more than 20 mg - evidencefrom the QT about whether the alcohol standard was certified by an analyst must also be accepted for the condition set out in s.320.31(1)(

a) without the need to tender the Certificate of Analyst. 31 The Court of Appeal disagreed. In its decision, the court took the opportunity to resolve the uncertainty in the jurisprudence acrossCanada given the myriad of conflicting decisions that address the

interpretation of s. 320.31(1)(a). The issue before the court wasdescribed thusly: What is the proper

interpretation of "certified by an analyst" in s. 320.31 (1)(

a) of the Criminal Code and must the Crown tenderevidence from an analyst, whether viva voce or through a certificate of analyst, to prove the requirements of this section? 32 The question could also be framed as asking "whether hearsay evidence from the analyst can be included in the Certificate ofQualified Technician" made under this Part": Goldson, para. 53. [39] The Alberta Court of Appeal in Goldson, further framed the concern as follows: 14 No one disputes that hearsay is presumptively inadmissible and that the QT's viva voce evidence or Certificate of QualifiedTechnician as it relates to whether the alcohol standard is certified by an analyst is hearsay in both forms.

The issue is whether thechanges introduced by the Amending Act should be interpreted to include a statutory exception to the hearsay rule (commonly referred toas an evidentiary shortcut) and permit evidence from the QT to prove that the alcohol standard used to conduct the test was certified byan analyst or whether it is necessary to tender the Certificate of Analysis or call viva voce evidence from the analyst to establish that thealcohol standard was certified. [40] Naturally after the Alberta Court of Appeal threw down the gauntlet on this issue a tsunami of cases followed.

Many courtsfollowed and held firm in their adoption of Goldson as the authority on the subject. Attempts by the Crown to have a qualified technicianconfirm the certification of the alcohol standard by way of viva voce evidence were often denied on the basis that it was inadmissiblehearsay. [41] This held true for both scenarios. First, where the Crown sought to prove presumption of accuracy by way of the Certificate ofQualified Technician and second where the Crown decided not to rely on the Certificate of Qualified Technician.

Most often under thesecond scenario the Certificate of Qualified Technician was defective, and the Crown called the qualified technician to either correct it ortestify to all aspects. A small sample of the many cases following Goldson which I reviewed in formulating this decision include R. v.Adams, [2023] N.B.J. No.11 (NBPC), R. v. Jackson, [2022] A.J. No.343 (ABPC), R. v. Kvasnak, 2021 SKQB 283 , [2021]S.J. No.476 (SKQB), R. v. McDonald, [2021] B.C.J. No. 2260 (BCPC), and R. v. Pahl, 2021 SKQB 179 , [2021] S.J. No.301(SKQB).

MacDonald Authority [42] After the Supreme Court of Canada dismissed leave to appeal in Goldson (February 2022) a second tsunami of cases ensued.This time they frequently pulled in the opposite direction, rejecting Goldson. They followed the Yukon Court of Appeal decision in R. v.MacDonald, 2022 YKCA 7 , [2022] Y.J. No.73. [43] Again, to orientate the issue a brief case history of MacDonald is in order. In MacDonald the accused failed a roadside breathtest and was taken to the RCMP detachment where he provided two breath samples. The results of the breath tests were both 100 mg.

MacDonald was found not guilty of the “80-and-over” offence. At trial, the Crown relied on the Certificate of a Qualified Technician toprove that the result of each calibration check was within 10% of the target value of the alcohol standard certified by an analyst. TheCrown also tendered into evidence the printout of the approved instrument.

The Crown did not file a Certificate of Analyst with respectto the alcohol standard nor did it call the qualified technician or analyst to testify. [44] The trial Court essentially followed the reasoning path in Goldson and held that the tendered Certificate of QualifiedTechnician did not provide a sufficient evidentiary foundation to prove that the results of the calibration checks performed were within10% of the target value of an alcohol standard certified by an analyst, as required by s 320.31(1)(

a) of the Criminal Code. Specifically,the trial judge stated (reported at R. v. MacDonald, [2020] Y.J. No.18) at paragraphs 27 to 29: [27] The qualified technician, Cst.Caron did not testify in the case before me. There is no evidence that Cst. Hartwig or Cst. Caron everlooked at the Certificate of Analyst. [28] What I am being asked to do is accept, at face value, the assertion on the certificate that the alcohol standard was certified by ananalyst.

[29] I am not prepared to do that without an evidentiary foundation that points me to some reliable evidence that, in making thisstatement, the qualified technician had actually done something to satisfy himself that this was the case. This would not be an onerousthing to do, and hardly places any kind of difficult or time-consuming evidentiary burden on the Crown. [45] The

summary conviction appeal court dismissed the Crown’s appeal and affirmed the acquittal (reported at R. v. MacDonald,2021 YKSC 26 , [2021] Y.J. No. 40). In doing so the court held at paragraph 106 that a qualified technician is not entitled toattest to “information emanating from an out of court statement of an analyst regarding the certification of an alcohol standard for thetruth of its contents, in order to meet the requirements of s. 320.31(1)(a)”.

Despite this however, the issue made its way to the YukonCourt of Appeal. [46] The Yukon Appeal Court specifically addressed the Alberta Court of Appeal’s decision in Goldson. Contrary to Goldson, theyheld that hearsay evidence of the certification by an analyst is admissible. In other words, the Crown, at trial, can use hearsay evidence tosatisfy the precondition under

section 320.31(1)(a). [47] In speaking for the Yukon Court of Appeal Chief Justice Bauman undertook a helpful and detailed review of the law as it wasunder the predecessor legislation. Under the predecessor legislation the Crown was not required to call direct evidence from the analystor present the Certificate of Analyst to prove the suitability of the alcohol standard.

The Crown could rely upon the Certificate ofQualified Technician or the viva voce evidence of the qualified technician stating as a fact that the technician ascertained that theapproved instrument was working by means of an alcohol standard “suitable for use with an approved instrument”. [48] After review of the predecessor legislation Chief Justice Bauman turned to the current legislation.

The Chief Justice held thatthe overreaching purpose of the new drinking and driving provisions were “to streamline the trial process in this heavily litigated andcomplex area of the law…to avoid needless delays in drinking and driving proceedings”.

In light of this conclusion, he rhetorically askedat paragraph 44, “why would Parliament be seen to be adding an evidentiary requirement on the Crown to prove the reliability of thealcohol standard by resort to the oral evidence or the certificate of the analyst who certified it?” [49] In the end the Yukon Court of Appeal concluded that: “It is not necessary for the Crown to go beyond the qualified technician'scertificate or oral evidence as to the fact of the alcohol standard's certification.” Finally, at paragraphs 76 and 77 the Court stated: 76 In my view, this disposition of the issue of statutory

interpretation best serves the modern rules of statutory construction, interpretingthe words harmoniously with the overarching objective of the legislative scheme historically and today and the objectives set out in thepreamble to the 2018 Amending Act: "... to simplify the law relating to the proof of blood alcohol concentration." 77 The trial judge's concern was that the qualified technician did not testify and "there was no evidence that [the arresting officer] or [thequalified technician] ever looked at the Certificate of Analyst," that there was no evidentiary foundation that in making this statementabout the analyst's certification Constable Caron "had actually done something to satisfy himself that this was the case." It will be seenthat this concern is not necessarily driven by resolving the issue of statutory

interpretation. In my view, however, the concern iscompletely answered by the record before the trial judge. The certificate says that the qualified technician conducted the appropriatecalibration check using an alcohol standard "which was certified by an analyst." That is evidence of "the facts alleged." There was noevidence to the contrary before the trial judge; a conviction necessarily follows. [50] Some of the cases following MacDonald and rejecting Goldson which I reviewed include R. v. Singh, [2021] O.J. No. 6178,R. v. Hepfner, 2022 ONSC 6064 , [2022] O.J. No.4722 (ONSC) and R. v.

Cardwell, 2022 BCPC 308 , [2022] B.C.JNo. 2623 (BCPC). Cases Expanding on MacDonald [51] The accused argues that MacDonald is distinguishable from the case before this court. He argues that MacDonald is strictlyconfined to cases where the Crown has proceeded by way of tendering the Certificate of Qualified Technician. Here, given the errors inthe Certificate of Qualified Technician, the Crown did not rely upon it. The Crown decided, as they are entitled to do, to call the officerand have him testify to all aspects of what would normally be contained within it. [52] I can not accept the defence argument.

First, to make such a fine line distinction between cases proceeding by way ofCertificate of Qualified Technician and those which do not appears to be a strikingly arbitrary. It is especially so given that under bothscenarios a court is dealing with exactly the same issue; namely that hearsay evidence is being offered to satisfy that the alcohol standardwas “certified by an analyst”. Hearsay is the reality no matter which of the two options are selected by the Crown.

Short of directlycalling the analyst to testify to the alcohol standard both certificate and viva voce cases deal in hearsay. [53] However, the fact remains that hearsay evidence relates to an out of court statement tendered for the truth of its contents. It ispresumptively inadmissible in the absence of a categorical/common law, statutory, or principled exception to the rule. Therefore, theredoes remain room for the possibility that it was Parliament’s intention to specifically carve out a statutory exception to the hearsay rulein cases where the Crown proceeds by way of Certificate of Qualified Technician.

Afterall,

section 320.32(1) does allow the Crown toadduce a certificate in lieu of testimony of the qualified technician as evidence of the facts alleged in the certificate. [54] Nevertheless, and perhaps more convincingly, remains the reality that there is a vast body of case authority expandingMacDonald. The case authority continuously rejects Goldson. It too carves out what appears to be an accepted exception to the rule ofhearsay in not only certificate cases but also viva voce cases. Some of the cases I have reviewed expanding on MacDonald include: R. v.Maan, [2022] O.J. No. 1763, R. v. Ruiz, [2022] O.J.

No. 3554, R. v. Hepfner, 2022 ONSC 6064 , [2022] O.J. No. 4722, andR. v. Cardwell, 2022 BCPC 308 , [2022] B.C.J No. 2623. I will now highlight some of these cases from the “third wave”. R. v. Maan, [2022] O.J. No.1763 (Ontario Court of Justice)

[55] During trial the Crown sought to have the breath technician provide viva voce evidence about the Certificate of Analyst. Thebreath technician had the Certificate of Analyst in his possession while on the stand. The officer understood that this certificate statedthat the alcohol standard was certified by an analyst. The Crown sought to have the certificate tendered as an exhibit. Defence counselobjected and argued that the Crown had not given proven proper notice of its intention to introduce the certificate as required by section320.32(2).

The Crown acknowledged that proper notice had not been given. [56] I find that this case squarely deals with the circumstance before me where the Crown did not provide sufficient notice. Eventhough I find that the Crown has not established sufficient notice to tender the Certificate of Analyst as an exhibit I hold that the court canconsider Cst. Barkhouse’s viva voce evidence as to the contents and circumstances of the document. I adopt the position of the OntarioCourt of Justice in R. v. Mann, supra as outlined in paragraphs 8 to 11: 8 I have reviewed and considered the Queen v.

Bahman, 2020 ONSC 638, the Queen v. Porchetta, 2021 ONSC 1084 and the Queen v.Dulal, 2021 ONSC 2798 and the Queen v. Singh, 2021 ONCJ 539. These cases make it clear that the Crown has two options whenseeking to prove the content of a Certificate of Analyst; it can be done by introducing the certificate without a witness, pursuant to s.320.32, provided the notice provisions are met, or through the viva voce evidence of the breath technician.

I am aware that the Queen v.Goldson, 2021 ABCA 193, takes a different view on this issue. 9 In this case, the Crown acknowledges that it has not given notice under s. 320.32 for the Certificate of Analyst. Sub-section 320.32(2)provides that, "no certificate shall be received in evidence" unless notice is given.

I have considered whether the evidence of OfficerFeasby, saying that he had the Certificate of Analyst in his possession and other evidence on this subject would permit the exhibit to bemarked as a numbered exhibit. 10 While the Ontario cases mentioned above, in particular, Porchetta and Bahman, permit viva voce evidence concerning the certificate,they do not appear to go as far as to permit the actual marking of a certificate as an exhibit.

Section 320.32(2) specifically prohibits the"certificate" from being received in evidence, without notice. 11 Accordingly, in my view, and while the matter is not free from doubt, the Certificate of Analyst cannot be marked as an exhibit inthese circumstances. However, the Crown is not prevented from calling viva voce evidence referring to the content of the certificate asthe Ontario cases cited above make clear. Other admissible documents may also touch on this issue. [57] I agree with the defence that the two copies of Certificates of Analyst in the possession of Cst. Barkhouse can not be tenderedinto evidence.

However, I accept the reasoning path as outlined in R. v. Mann, supra, R. v. Porchetta, supra and R. v. Bahman, supraand as a result find that I can and do consider the viva voce evidence of Cst. Barkhouse as it relates to the contents of those twodocuments. [58] It is well established that a breath technician can refer to and testify about a document which purports to be a defectiveCertificate of Qualified Technician. This has never been controversial.

As far back as the existence of these certificates breath technicianshave spoken to and referred to these documents while on the stand with and without notice to defence. Notice was only material whenthe Crown sought to tender it into evidence as prima facie proof of its contents. [59] The same has extended to many other documents which are presented daily to countless witnesses in courtrooms across thiscountry.

Witnesses are shown everything from text messages to photographs; many of which are not originals. [60] A lack of documented formal notice does not preclude a witness from giving viva voce evidence about the document in front ofthem. [61] There is nothing particularly unique or unusual about a document purporting to be a copy of a Certificate of Analyst. Just as itis for a Certificate of Qualified Technician, I find that notice of Certificate of Analyst is only material when the Crown seeks to tender itinto evidence by way of the legislated prima facie short cut.

As stated, the Crown is not seeking to do so in this case. [62] Cst. Barkhouse has a clear foundation and familiarity with this document. He knew how it got into his possession, why it ismaterial to his role as qualified technician, how it came into existence, and what it purports to represent. Simply because notice wasn’tgiven does not, full stop, bar him from speaking to it. R. v. Ruiz, [2022] O.J.

No. 3554 (Ontario Court of Justice) [63] At trial defence, citing Goldson, objected to the admissibility of the Certificate of Analyst, the Certificate of QualifiedTechnician, and the print outs from the Intoxilyzer. [64] The court specifically rejected the notion that Goldson is the supreme authority going forward by virtue of the fact that theSupreme Court of Canada refused leave to appeal. I agree with the Court’s comments at paragraph 6: 6 Let me start with the last argument. I reject the notion that the refusal of leave adds any precedential value to the Alberta Court ofAppeal's decision whatsoever.

See in that regard Precedent Unbound Contemporary Approaches to Precedent in Canada 2006 32-1Manitoba Law Journal 135 at 142-3 2006 CanLII Docs 127 and Regina v Meston (ON CA), 1975 34 CRNS 323 OntCA. at para 22 where none other than Martin JA set out the following comments of Lord Diplock taken from Gilbert-Ash (Northern)Ltd. v. Modern Engineering (Bristol) Ltd., [1973] 3 W.L.R. 421, at page 442: "Refusal of leave to appeal does not imply approval by this House of a judgment sought to be appealed against.

That judgment carries thesame authority as any other unappealed judgment of the Court of Appeal - neither more nor less." [65] In allowing the breath technician to provide viva voce hearsay evidence to prove that the alcohol standard was certified by ananalyst the court stated at paragraphs 9 and 10:

9 The hearsay feature of this argument as he clearly and concisely points out, has been repeatedly rejected in various guises over time inthis Province although Alberta seems to have more than once taken a contrary approach. I see no reason to conclude that I can or shoulddepart from the approach taken by other courts in this Province until our Court of Appeal or the Supreme Court of Canada clearly givesme one. 10 That means that both the viva voce evidence of the breath technician and his certificate should be admissible to prove that the solutionused in this case was to use the words of the statute under

section 320.31(1)(a) "certified by an analyst". [66] Again, I accept and adopt the Court’s declarations and reasoning in R. v. Ruiz, supra. R. v. Hepfner, 2022 ONSC 6064 , [2022] O.J. No. 4722 (Ontario Superior Court of Justice) [67] The accused was convicted at trial. On appeal the defence argued that the trial judge erred in relying on the hearsay evidenceof the qualified technician to establish the first of the preconditions for the presumption of accuracy set out in

section 320.31(a). Asargued in the case before me, counsel in R. v. Hepfner, supra argued that the Crown failed to prove that the alcohol standard was“certified by an analyst”. [68] In R. v. Hepfner, supra the Crown did not tender any form of Certificate of Analyst. The breath technician testified that such acertificate was posted on the detachment wall above the approved instrument. He testified that this posted certificate noted the targetvalue of the alcohol standard as 100 mg of alcohol.

He later agreed during cross examination that he was mistaken and could not say forcertain that the posted certificate he viewed referred to a specific target value. However, he testified that based on his experience andtraining the baseline target value used by the Centre of Forensic Sciences had always been 100 mg.

He added that the target value is alsoprinted on the label of the bottle for the standard solution which is certified by the Center of Forensic Sciences. [69] The court in dismissing the appeal stated at paragraphs 14, 20, and 21: 14 The appellant argues that the evidence of the qualified technician respecting the certificate of analysis and the target value areinadmissible hearsay.

He argues that to prove the precondition to the presumption of accuracy set out in s. 320.31(1)(a), the Crown mustfile the relevant certificate of analysis or call the viva voce evidence of that analyst. 20 Considering the scheme of the Code as a whole, leads to the conclusions set out above. That is, that the Crown need not go beyondthe qualified technician's certificate or oral evidence as to the fact of the alcohol standard's certification. 21 Accordingly, in this case, the oral evidence of the qualified technician respecting the precondition found in s. 320.31(

a) wasadmissible and, as the trial judge accepted that oral evidence, this ground of appeal must fail. [70] The Court expanded on its reasons at paragraphs 66 to 67: 66 Here, though, the appellant takes the position that the trial judge's conclusion that the evidence of the qualified technician wassatisfactory in this respect was an unreasonable conclusion.

He says that "there was no evidence that the alcohol standard used for thecalibration check was certified by either an analyst specifically or the CFS generally, or even what the target value and the concentrationof alcohol in the standard was." 67 I do not accept this argument. First, I have already found above that the trial judge was entitled to conclude that the standard wascertified by an analyst based on the evidence of the qualified technician that there was a certificate of analysis.

As the Crown submits,the fact that there was a certificate is by itself evidence that the alcohol standard solution was certified. That, as well as the technician'sevidence that the alcohol standard solution had been certified by the CFS, allowed the trial judge to conclude -- reasonably -- that thealcohol standard solution had been certified by an analyst. [71] I adopt the Ontario Superior Court of Justice’s reasoning and analysis. As a result, I am unable to accept another of theaccused’s arguments. In particular, defence argues that Cst.

Barkhouse acknowledged under cross examination that he did not view theoriginal Certificate of Analyst. As a result, it is argued that he is unable to offer credible and reliable evidence with respect to the alcoholstandard used or that it was certified by an analyst. [72] It is reasonable to hold that the breath technician in R. v. Hepfner, supra didn’t view the original either. As the Crown hasfairly and properly pointed out there can only be one original Certificate of Analyst. It is difficult to fathom that such an original wouldbe posted on the wall of a small detachment in Waterloo Ontario.

I reject the defence argument that in order for Cst. Barkhouse to offerviva voce evidence as it relates to the standard being “certified by an analyst” that he was first required to view the original. Frankly, thisappears to be a bit of a stretch. [73] Cst. Barkhouse’s evidence as it relates to the alcohol standard and it being “certified by an analyst” didn’t come out of thin air.It had a number of “circumstantial guarantors/indicators of reliability”. The following evidence on this point remains uncontradicted: 1.

He testified in great detail about the familiar process of how he receives the tanks directly from the location where thealcohol standard is certified. 2. He knows that these tanks come shipped directly to his detachment with copies of the Certificate of Analyst. In his entirecareer as a qualified technician, up to this case, the document which comes to him purporting that the alcohol standard was “certified byan analyst” is always a copy. 3. He knows the lot number listed on the alcohol standard matches that which is noted on the copy of Certificate of Analyst. 4.

He knows that the particular alcohol standard used in the tank was AIRGAS which also matches that listed in the copy ofthe Certificate of Analyst.

5. He reviewed the label on the particular tank which contained the alcohol standard used and in the instrument. 6. He noted the alcohol standard value listed on the tank. [74] As was the case in R. v. Hepfner, supra the uncontradicted evidence before me was that there was a Certificate of Analyst,that this Certificate of Analyst certified the alcohol standard, and that what Cst. Barkhouse had in his possession was a copy of it. Eventhough he stated he had never seen the original or had an opportunity to compare his copy to the original his evidence was contextual anduncontradicted.

It went many degrees further than the breath technician in R. v. Hepfner, supra. I do not accept that for Cst. Barkhouseto give evidence about the copy in his possession that he had to first compare it physically to the original. R. v. Cardwell, 2022 BCPC 308 , [2022] B.C.J. No.2623 (British Columbia Provincial Court) [75] In a number of respects this case is very similar to the one before this court. In keeping with the theme, the Crown did not relyon the Certificate of Qualified Technician.

The Crown chose to call viva voce evidence of the breath technician on all aspects of whatwould otherwise be specified in the Certificate of Qualified Technician. In addition, just as Cst. Barkhouse had done here, the breathtechnician referred to a printout from the breath instrument which was used in taking the breath samples. [76] In R. v. Cardwell, supra there was a question as to what document the breath technician looked at in offering his position thatthe alcohol standard was certified by an analyst. The breath technician in R. v.

Cardwell, supra testified that his basis for knowing thatthe alcohol standard was certified by an analyst was from looking at a document which was posted on the wall of the breath room. Hestated the “document” which he also referred to as the “certificate” was signed by an analyst. However, he could not recall many thingssurrounding the document itself.

He didn’t know; the name of the person who signed it, when it was dated, if it had referenced a sectionof the Criminal Code designating a specific person as an analyst, if there were one or two signatures, if there were two certificates, or ifthe document had an expiry date. [77] Just like Cst. Barkhouse, the breath technician in R. v.

Cardwell, supra testified to several things: he was a qualifiedtechnician, he used approved instrument INTOX EC/IR II, noted the target value, noted the lot number of the alcohol standard, notedthat the marker of the standard was AIRGAS, did a system blank check, did a calibration check, the results of the calibration check werewithin 10 percent of the approved alcohol standard certified by an analyst. [78] Ultimately, the Court in allowing the breath technician to provide viva voce hearsay evidence on the certification of the alcoholstandard held at paragraphs 18 to 20: 18 There was no evidence to the contrary led to suggest any doubt over these findings.

Further, there was no question or suggestion put toConstable Palmer in cross examination that there was some chance that he was looking at the wrong certificate, or that there was somechance that the wrong certificate had been posted, or any suggestion that he could not say with certainty what document he looked at. 19 That being said, it is clear that Constable Palmer was unable to name the analyst, the date the analyst certified the alcohol standard,what

section of the Criminal Code the analyst was designated under, and whether there were one or two signatures on the certificate or ifthere were two certificates, and what the expiry date was on the certificate. 20 The question is whether this lack of information raised by the defence in cross examination leaves the Court with a reasonable doubtthat the Crown has proven that the alcohol standard was certified. I do not find any such doubt. [79] Here, Cst. Barkhouse had knowledge of everything and possibly more than the breath technician in R. v. Cardwell, supra.

Theone possible exception being that he did not see the original. However, it is unclear if the breath technician in R. v. Cardwell, supraactually viewed his original either. That can not be gleaned from the reported facts in the case. Nevertheless, I digress. I am satisfied thatCst. Barkhouse’s evidence was that the alcohol standard he used was certified. I find that his hearsay evidence is sufficiently reliable tobe received as proof that the alcohol standard was “certified by an analyst”. [80] I will not speculate that the document he looked at might have been different than the original.

I adopt the following passagesfrom R. v. Cardwell, as they are equally applicable in the matter before me: 24… the authorities set out that the hurdle that the Crown faces is low. In R. v. MacDonald, supra, the court made it clear that all thatwas required is proof, whether by certificate or oral evidence, that the alcohol standard was certified…. 25 Based on R. v. MacDonald, supra, it is clear that the burden on the Crown is a low one and is to simply prove that the alcoholstandard was certified.

On the evidence before the Court, the Crown has met that burden and has proved beyond a reasonable doubt thatthe alcohol standard used was certified by an analyst. 26….to accede to the defence argument is to engage in speculation or conjecture. I note that, if there was any concern more thanspeculation or conjecture, then defence could have brought an application for further disclosure or could have applied to cross examinethe analyst. [81] Cst. Barkhouse’s evidence on this narrow point was hearsay. However, decades of precedential case law have clearly permittedviva voce hearsay from qualified technicians.

For example, in R. v. Yip Chuck, 2019 ONCJ 367, an analyst's certificate was tenderedbut it did not include a statement about the concentration of the standard. As a result, the Crown relied upon the evidence of the qualifiedtechnician to fill in the details. This again, was hearsay. The Court stated at paragraphs 15 to 17: 15.It is recognized that there is an element of hearsay involved in most if not all knowledge gained from training or education. I suspectthat only a small percentage of what one "knows" is gained from firsthand experience or personal verification.

At some point any hearsayconcern dissipates and a witness may testify as to learned knowledge. 16.In this exact context courts have permitted qualified technicians to testify over hearsay objections as to the suitability of solutions used

in breath testing machines: see R. v. Porchetta, [2019] O.J. No. 1985 and authorities cited therein particularly R. v. Ware (1975), 30C.R.N.S. 308 (Ont. C.A.) and R. v. Harding (1994), (ON CA), 17 O.R. (3d) 462 (C.A.). See also R. v. Lightfoot, (SCC), [1981] 1 SCR 566. 17.In the same way, in my opinion, the technician may testify as to what he has learned about the alcohol concentration and target valuesof the solutions that are used: R. v. Does, [2019] O.J. No. 1924. That evidence was given by the technician in this case and establishedwhat was required to give rise to the presumption of accuracy.

CONCLUSION [82] Accordingly, for the reasons outlined above I will not be granting the defence motion for directed verdict. In doing so I adoptthe long line of case authority following R. v. MacDonald, supra which specifically rejects R. v. Goldson, supra. I am satisfied that theCrown through the viva voce evidence of qualified technician Cst. Barkhouse has satisfied all preconditions for the presumption ofaccuracy under sections 320.21(a), (b), and (c). This includes that the alcohol standard “is certified by an analyst”. Shane Russell, JPC ProvincialCOURT OF Nova Scotia Citation: R. v.

Kelly 2023 NSPC 19 Date: 20230508 Docket: 8533116, 8533117 Registry: Sydney Between: Her Majesty the Queen v. Robert Justin Kelly ERRATUM Judge: The Honourable Judge Shane Russell,Heard: May 8th,2023, in Sydney, Nova ScotiaCounsel: Darcy MacPherson, for the Crown James Violande for Defence Erratum Date: May 10,2023 Paragraph 37 Remove subparagraph 29 and corrected subparagraph numbers.