R v. Veinot, 2010 NSSC 454

SUPREME COURT OF NOVA SCOTIA Citation: R v. Veinot, 2010 NSSC 454 Date: 20101214 Docket: CRBwt 326416 Registry: Bridgewater Between: Michael Gerald Boyd Veinot Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Justice Arthur W.D. Pickup Heard: November 16, 2010, in Bridgewater, Nova Scotia Written Decision: December 14, 2010 Counsel: Mark F. Dempsey for the Appellant Craig M. Harding for the Respondent By the Court : [ 1 ] Michael Gerald Boyd Veinot, the appellant, was found guilty of operating a motor vehicle while impaired contrary to s. 253(1) (

b) of the Criminal Code of Canada on February 23, 2010. [ 2 ] This appeal concerns adequacy of notice provided to the appellant of the Crown’s intention to introduce a Certificate of a Q ualified Technician. The Crown provided no vive voce evidence as to service of this document, but rather relied on s. 4(6) (

b) of the Criminal Code to prove service by a statement in writing. [ 3 ] Should the trial judge be found in error in admitting the certificate tendered pursuant to s. 4(6) (b), the issue then becomes

whether the viva voce evidence of the RCMP constable who administered the breathalyzer test was sufficient to establish breathalyzer readings in excess of the legal limit. Issues: [ 4 ] The issues on this appeal are: (

a) Whether the trial judge erred in finding that s. 258(7) of the Criminal Code has been complied with, in this case, within the context of s. 4(6) (

b) of the Criminal Code . (

b) Whether the trial judge erred in finding that Cst. Nelson gave sufficient viva voce evidence upon which to base a breathalzer conviction in the absence of the certificate being found admissible. Background: [ 5 ] I adopt the following background facts as detailed in the factum of the respondent Crown:

a) After trial Judge Richard J. MacKinnon found Mr. Veinot guilty of operating a motor vehicle, having consumed alcohol in such a quantity that the concentration in his blood exceeded eighty milligrams of alcohol in one hundred milliliters of blood, contrary to Section 253(1) (

b) of the Criminal Code on February 23, 2010.

b) Cst. Tyson Nelson testified that he was conducting a checkpoint on highway 210 in Buckfield, Queens County, Nova Scotia on April 24, 2009.

c) A pick-up truck traveling West on Highway 210 stopped at the checkpoint and as Cst. Nelson was speaking to the driver and only occupant of the truck, Michael Gerald Boyd Veinot, he noticed an odour of liquor coming from inside the cab of the truck.

d) Cst. Nelson asked Mr. Veinot to pull his vehicle to the side of the road and as he spoke further to him determined that the odour of liquor was coming from Mr. Veinot's breath. This was at 7:55 PM. Cst. Nelson then read the approved screening test demand to Mr. Veinot. Mr. Veinot stated that he understood the demand and agreed to provide a sample of his breath. Mr. Veinot exited the truck and blew a fail on the Alcotest instrument at approximately 8:00 PM.

e) Cst. Nelson placed Mr. Veinot under arrest and read to him his rights to counsel, police caution and the breathalzer demand. Cst. Nelson then drove Mr. Veinot to the RCMP detachment in Bridgewater to conduct the Breathalyzer tests, the results of which are contained in a certificate prepared by Cst. Nelson on November 18, 2009 and given to Cpl. Sandy Merrell, who served a copy on Mr. Veinot on November 27, 2009.

f) Cst. Nelson identified the certificate and notice as V. D. Exhibit No. 1 and testified that the signature on the notice portion on the document was that of Cpl. Merrell although he did not see her sign it. He further testified that he compared the numbers he noted from the tests on April 24, 2009 and they were the same. [ 6 ] I agree with the appellant’s counsel that para. 5 should be modified to state that the certificate was mailed to Cpl.Sandy Merrell and not given to her personally. I have reviewed the transcript at pp. 69 and 70 of the appeal book and I am satisfied that the certificate was mailed to Cpl.Merrell and not given to her personally.

[ 7 ] The certificate in issue is attached at the bottom of the Certificate of a Qualified Technician (Data Master) and is in the following form: NOTICE OF INTENTION TO PRODUCE CERTIFICATE TO: Michael Gerald Boyd Veinot of 846 Waterloo Road Take notice that, pursuant to paragraph 258(1) (

g) and subsection 258(7) of the Criminal Code , the prosecution intends to produce in evidence a certificate, a copy of which appears above. Dated this 27th day of November A.D. 2009 S. D. Merrell (signed) Signature of person serving this notice for the prosecution Standard of Review : [ 8 ] In R. v. E.(C.) 2009 CarswellNS 400 , 2009 NSCA 79 , Justice Fichaud outlined the standard to be applied by a

summary conviction Appeal Court to a decision of a trial court as follows: 30 In R. v. Nickerson , [1999] N.S.J. No. 210, 1999 NSCA 168 , Justice Cromwell described the standard to be applied by a

Summary Conviction Appeal Court to a decision of a trial court: [6] The scope of review of the trial court's findings of fact by the

Summary Conviction Appeal Court is the same as on appeal against conviction to the Court of Appeal in indictable offences: see sections 822(1) and 686(1)(a)(

i) and R. v. Gillis (1981), 1981 CanLII 3294 (NS CA) , 60 C.C.C. (2d) 169 (N.S.S.C.A.D.) per Jones, J.A. at p. 176. Absent an error of law or a miscarriage of justice, the test to be applied by the

Summary Conviction Appeal Court is whether the findings of the trial judge are unreasonable or cannot be supported by the evidence. As stated by the Supreme Court of Canada in R. v. Burns , 1994 CanLII 127 (SCC) , [1994] 1 S.C.R. 656 at 657, the appeal court is entitled to review the evidence at trial, re-examine and reweigh it, but only for the purpose of determining whether it is reasonably capable of supporting the trial judge's conclusions. If it is, the

Summary Conviction Appeal Court is not entitled to substitute its view of the evidence for that of the trial judge. In short, a

summary conviction appeal on the record is an appeal; it is neither a simple review to determine whether there was some evidence to support the trial judge's conclusions nor a new trial on the transcript. To the same effect: [R v. R.H.L ., 2008 NSCA 100 ] at para. 21 and [ R. v. Farrell, 2009 NSCA 3 ] at para. 9. 31 In R. v. Clark , 2005 SCC 2 (CanLII) , [2005] 1 S.C.R. 6, Justice Fish for the Court stated a similar principle to govern the review by appellate courts of factual findings by trial courts: [9] ...

Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. "Palpable and overriding error" is a resonant and compendious expression of this well-established norm: see Stein v. The Ship "Kathy K" , 1975 CanLII 146 (SCC) , [1976] 2 S.C.R. 802; Lensen v. Lensen , 1987 CanLII 4 (SCC) , [1987] 2 S.C.R. 672; Geffen v.

Goodman Estate , 1991 CanLII 69 (SCC) , [1991] 2 S.C.R. 353; Hodgkinson v. Simms , 1994 CanLII 70 (SCC) , [1994] 3 S.C.R. 377; Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital , 1994 CanLII 106 (SCC) , [1994] 1 S.C.R. 114; Schwartz v. Canada , 1996 CanLII 217 (SCC) , [1996] 1 S.C.R. 254; Housen v. Nikolaisen , [2002] 2 S.C.R. 235, 2002 SCC 33 .

[ 9 ] I will now go on to review the trial judge’s decision with these principles in mind. Analysis : Did the trial judge err in finding that s. 258(7) of the Criminal Code has been complied with in this case, within the context of s. 4(6) (

b) of the Criminal Code ? [ 10 ] The question is whether the statement in writing at the bottom of the certificate signed by Cpl.Merrell complies with s. 4(6) (

b) of the Criminal Code as the trial judge found. [ 11 ] Service of a Certificate of Qualified Technician is governed by s. 258(7) of the Criminal Code , which states as follows:

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

h) or (

i) unless the party intending to produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate. [ 12 ] Proof of service of such a certificate is governed by s. 4(6) (a)(

b) of the Criminal Code , which states as follows:

(6) For the purposes of this Act, the service of any documents and the giving or sending of any notice may be proved (

a) by oral evidence given under oath by, or by the affidavit or solemn declaration of, the person claiming to have served, given or sent it; or (

b) in the case of a peace officer, by a statement in writing certifying that the document was served or the notice was given or sent by the peace officer, and such a statement is deemed to be a statement made under oath. [ 13 ] The appellant says that there is insufficient evidence of proof of service of the certificate. He says there is no certification contained on the bottom portion of the certificate, nor is there any indication of the date of service nor that service was effected at all. Simply put, the appellant argues that the certificate in evidence does not meet the requirements of s. 4(6) (

b) of the Criminal Code . [ 14 ] The respondent Crown’s position is that the trial judge made findings of fact that both sections were complied with. The Crown says that the argument being made by the defence is one of form over substance. They say that the form complies with s. 4(6) (

b) of the Criminal Code . [ 15 ] The trial judge concluded that s. 258(7) had been complied with. His reasoning is set out at pp. 115 and 116 of the transcript of his decision as follows: I have to decide the question as to whether or not the wording Exhibit 1 establishes that it is a statement in writing made by a peace officer, certifying that the document was served, or the notice was given and I have to find whether or not the writing on this paper, Exhibit 1, also indicates that it complies with Section 258(7) in that reasonable notice has been given and a copy of the certificate has been given.

And I read into read into Section 258(7) that it has to be given to the accused. The accused being the other party in these proceedings. Exhibit 1, the certificate actually specifically refers to Subsection 258(7) . So, whether or not it complies with Section 258(7) and Section 4(6) (

b) of the Criminal Code , I conclude that it was intended to attempt to comply with Section 258(7) . By virtue of the words which state "signature of person serving this notice for the prosecution", I am

concluding that that is a certification. That that notice was served. By virtue of the words "take notice that pursuant to paragraph 258(1) ( g ), and Subsection 258(7) of the Criminal Code the prosecution intends to produce in evidence a certificate, a copy of which appears above." And in particular the words, "a copy of which appears above", coupled with the words below, "signature of person serving this notice for the prosecution", I find that the notice of intention to produce certificate attached to Exhibit 1 does, in fact, certify that the document was served by a peace officer and that Mr.

Veinot was given reasonable notice of the Crown's intention to introduce the certificate into evidence and Mr. Veinot, again, specifically because of those words "a copy of which appears above" coupled with "signature of person serving this notice", that he was given a copy of the certificate as is required in Section 258(7) . I conclude that Section 258(7) has been complied with. [ 16 ] I am satisfied that s. 4(6)(a)(

b) is an alternative way of proving service and notice for the purpose of s. 258(7) . The Crown can provide oral evidence of service or rely on a statement in writing within the meaning of s. 4(6) (b). The question is whether the statement signed by Cpl.Merrell is sufficient to come within the provisions of s. 4(6) (

b) as the trial judge found. [ 17 ] The certificate of analysis is a document within the meaning of s. 4(6) of the Criminal Code and service may be proved by way of a statement in writing certifying that the document was served or the notice was given. Whether this document or statement in writing is sufficient will depend on its contents and whether it is sufficient to satisfy the trier of fact that the accused was served with a copy of the certificate and given reasonable notice of intention to produce.

From a review of case law, it has been found that in some cases this is enough and in others the trier of fact was not satisfied beyond a reasonable doubt based on the affidavit or statement in writing and the certificate was not admitted into evidence. [ 18 ] Here the trial judge was satisfied that the statement in writing was sufficient to certify that the certificate was served by a peace officer and that Mr.

Veinot was given reasonable notice of the Crown’s intention to introduce the certificate into evidence. [ 19 ] It is noteworthy that under s. 4(7), the court may require the person who appears to have signed a statement in writing (Cpl.Merrell) to appear for examination or cross-examination in respect of the issue of proof of service or the giving or sending of any notice. Section 4(7) is as follows:

(7) Despite subsection (6) or (6.1), the court may require the person who appears to have signed an affidavit, a solemn declaration or a statement in accordance with that subsection to appear before it for examination or cross-examination in respect of the issue of proof of service or of the giving or sending of any notice. [ 20 ] It appears from the evidence before me that the examination or cross-examination of Cpl.Merrell was not requested. [ 21 ] The learned trial judge found that the notice of intention to produce a certificate signed by Cpl.Merrell was a statement in writing within the meaning of s. 6(b), certifying that the document was served. [ 22 ] I have reviewed the evidence provided at trial and I am satisfied that the evidence at trial is reasonably capable of supporting the trial judge’s conclusion that the certificate complies with s. 4(6) (

b) of the Criminal Code . [ 23 ] I am satisfied that the trial judge made no palpable and overriding error in coming to the conclusion that from a reading of the certificate as a whole and in the context of the notice to which it was attached, it was served within the provisions of s. 6(4)(

b) and that it is a “statement in writing certifying that the document was served or the notice was given” within the meaning of that section. Having so decided, it is not necessary that I go on to determine the second issue. [ 24 ] The appeal is dismissed.

Pickup, J.