HIS MAJESTY THE KING Appellant - v. -, 2023 SKKB 266

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 266 Date: 2023 12 06 Docket: CRM-SA-00324-2022 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: HIS MAJESTY THE KING Appellant - and - BRETT PATTERSON Respondent Counsel: Janyne K. Laing for the appellant Crown Timothy E. Foster, K.C. for the respondent ___________________________________________________________________________ JUDGMENT R.S. SMITH J.

December 6, 2023 ___________________________________________________________________________ Introduction [ 1 ] On July 21, 2022, the Provincial Court acquitted Brett Patterson [accused] of operating a motor vehicle with a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 ml of blood contrary to s. 320.14(1) (

b) of the Criminal Code , RSC 1985, c C-46 . ( R v Patterson , 2022 SKPC 29 ) [ 2 ] The pivot of the learned Provincial Court trial judge’s analysis emanates from R v Goldson , 2021 ABCA 193 , 406 CCC (3d) 84 [ Goldson ] . Goldson concluded that the 2018 amendments to s. 320.31 of the Criminal Code mandated a change in procedure in prosecuting under s. 320.14(1)(b). The amendment sets out what the Crown must prove in s. 320.31(1)(

a) and what the Crown may rely on in s. 320.32(1): 320.31

(1) If samples of a person’s breath have been received into an approved instrument operated by a qualified technician, the results of the analyses of the samples are conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made if the results of the analyses are the same — or, if the results of the analyses are different, the lowest of the results is conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made — if (

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 ; … 320.32

(1) A certificate of an analyst, qualified medical practitioner or qualified technician made under this

Part is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person who signed the certificate. [Emphasis added] [ 3 ] In Goldson , a Certificate of a Qualified Technician was found to be insufficient on its own for the Crown to make its case.

Goldson therefore mandated that for a Certificate of a Qualified Technician to be admitted, it must be accompanied by a Certificate of an Analyst in respect of the alcohol standard solution. [ 4 ] The learned Provincial Court judge also concluded that a 60-day notice period was required to be given to the accused in respect to the filing of the Certificate of an Analyst. [ 5 ] The Crown appeals the decision of the Provincial Court, asserting that the Alberta Court of Appeal in Goldson and the learned trial judge of our Provincial Court are wrong.

The Crown further asserts that the Certificate of an Analyst is not required, and as a result, the imposition of a 60-day notice period for its service is rendered moot.

[6] The Crown invites this Court to set aside the acquittal of the Information (90224685) and substitute a findingof guilt. The Crown asks that this Court attend to that as it asks only the mandatory minimum. Jurisdiction and Standard of Review [7] Crown counsel succinctly addresses this topic starting at paragraph 4 of her brief: 4. The Attorney General appeals as of right from the verdict of acquittal, under s. 813(b)(i). According to that provision, the AttorneyGeneral may appeal on a question of law, fact, or mixed fact and law.

Questions of law are to be reviewed on a standard of correctness.[Housen v Nikolaisen, 2002 SCC 33 at para 8, [2002] 2 SCR 235 [Housen]] Questions of fact are to be reviewed on a standard ofpalpable and overriding error. [Housen, at para 10] 5. This appeal raises questions of law. We submit the trial judge misinterpreted the drinking and driving provisions in the CriminalCode governing admissibility of evidence. The proper

interpretation of legislative provisions involves a question of law. [R v Moreau(1978), (SCC), [1979] 1 SCR 261 at para 17; R v Ewanchuk, (SCC), [1999] 1 SCR 330 atparas 21-22] We also submit the trial judge erred by failing to consider the totality of the evidence when it came time to decide the issueof guilt, specifically that the Certificate of Qualified Technician was sufficient on its own to prove the suitability of the alcohol standard.That, too, is a question of law. [R v J.M.H., 2011 SCC 45 at para 31, [2011] 3 SCR 197] The issue of reasonable notice in this appealinvolves both a question of law and of fact. [R v Good (1983), 1983 ABCA 141 , 6 CCC (3d) 105 at para 7 (Alta CA)] The trialjudge misinterpreted s. 320.32 of the Criminal Code on notice and failed to consider any facts when it determined that notice wasunreasonable. 6.

In an appeal from acquittal, the Crown must also establish the reviewable error was material in the sense that it affected the verdict.A new trial may be ordered if the appellate court is satisfied that if the trial judge had correctly applied the law, the verdict would notnecessarily have been the same. [R v Graveline, 2006 SCC 16 at paras 14-16, [2006] 1 SCR 609] Issues [8] The issues in this appeal distill to: 1. Is the Crown precluded from arguing the Certificate of an Analyst need not be exhibited? 2.

Is there a legal requirement for the Crown to file a Certificate of an Analyst before it can rely on a Certificate of a QualifiedTechnician? 3. What constitutes “reasonable notice” if the Crown wishes to file a Certificate of an Analyst in evidence? Analysis 1. Is the Crown precluded from arguing the Certificate of an Analyst need not be exhibited? [9] Counsel for Mr.

Patterson advanced what is, in essence, a preliminary objection. [10] He posits that in his opinion the Crown, during trial argument, conceded the Certificate of an Analyst had to beexhibited in order for the Certificate of a Qualified Technician to be accepted as evidence. [11] Counsel for Mr. Patterson points to the transcript of the trial at page T217, lines 7-27: MS. LAING: … Again, not statutorily required. All the elements of the offence that are required are contained in the certificate of the qualifiedtechnician.

The certificate of the analyst – this – of course, we all know post Goldson and post, in our province, Kavaznik (phonetic), whichwas the November case. This trial was held in December. So – and – and is set sometime before November. So in the interim there, wehad a case come out from QB in our province, which now dictates that the certificate of an analyst is required. So this is one of those transitional cases where, you know, when it was set for trial it was not required, but when the trial is actuallyheld, it was required.

So this is a – a piece of evidence that the Crown had to subsequently disclose to defence post-initial disclosure thatwent out sometime in October. Again, like all documents, there is no statutory requirement for the certificate of an analyst to be an original document. This makessense as the certificate of an analyst provides evidence to the alcohol standard of the breath instrument itself, rather than individualizedtest results of an impaired investigation. The actual true original would be in a lab somewhere in Vancouver.

And there is – like I said,there is no requirement that that needs to be original in the sense that the first created in a lab in Vancouver. [12] The accused’s counsel asserts that the Crown cannot now resile from its position that a Certificate of an Analystwas required to be entered into evidence in order to give life to the Certificate of a Qualified Technician.

That being said, the only issuerevolves around the service of the Certificate of an Analyst in a reasonable time. [13] Firstly, I would observe that the words of Crown counsel in the above transcript, to a certain extent, reflectscounsel thinking out loud, rather than a focused stipulation for the purpose of the Court’s judgment. It is clear that the case law on thedebate is evolving, and it is not reasonable or logical to somehow restrict the Crown’s argument on appeal. [14] It may well be different if the Crown had conceded something which may have impacted on the defence’s

strategy, but that it is not the case here. The argument is, to a great extent, at the academic/interpretative level. [15] In short, I reject it is contention that the Crown is precluded from arguing that the Certificate of an Analyst isnot required to be placed in evidence. 2. Is there a legal requirement for the Crown to file a Certificate of an Analyst before it can rely on a Certificate of a QualifiedTechnician? [16] Mr. Patterson argues that new provisions and

interpretation of the Criminal Code require the Crown to submitboth a Certificate of a Qualified Technician and a Certificate of an Analyst. It is useful at this time to describe the role of the technicianand the analyst and what they are certifying. [17] The Certificate of a Qualified Technician verifies the person taking the breath sample was properly trained andthe device was checked and calibrated using an alcohol standard sample. The Certificate of an Analyst verifies the alcohol standardsample used by the qualified technician. [18]

Section 320.32 allows for the Crown to introduce evidence from an analyst by way of certificate. The certificatesystem allows for evidentiary shortcuts that streamline proceedings by dispensing with unnecessary evidence. The preconditions requiredby the Criminal Code are concerned with the reliability of the breath test results and their correlation to the accused’s blood-alcoholconcentration at the time of the offence. [19] The accused invokes Goldson where the Alberta Court of Appeal found that the Certificate of a QualifiedTechnician cannot be admitted into evidence without the Certificate of an Analyst.

Further, the Certificate of Analyst had to be servedwithin a reasonable time. As noted, the learned Provincial Court trial judge found that reasonable time to be 60 days. [20] I respectfully suggest Goldson is a departure from the previously received wisdom of the Supreme Court. [21] In R v Alex, 2017 SCC 37, [2017] 1 SCR 967, and R v Lightfoot, (SCC), [1981] 1 SCR 566, theSupreme Court outlined that the purpose of the certificates as evidentiary shortcuts is a process that streamlines trial procedures.

TheSupreme Court urges a sensible and practical approach to interpreting the drinking and driving statutory regime. [22] Fortunately, I have benefited from a recent decision (November 3, 2023) by the Chief Justice of the Court ofKing’s Bench for Saskatchewan, namely, R v Wright, 2023 SKKB 236 [Wright]. [23] In Wright, Chief Justice Popescul dealt with the central issue in both Goldson and this case, namely, must theCrown introduce the Certificate of an Analyst into evidence in order to be permitted to rely on the presumption of accuracy of theCertificate of a Qualified Technician. [24] Chief Justice Popescul conducted a very thorough review of the jurisprudence in the area and came to theconclusion that Goldson is incorrect and not binding in Saskatchewan.

He notes starting at paragraph 141: [141] In my view, the Crown is not required to introduce the Certificate of any Analyst into evidence at trial in order to rely upon thepresumption of accuracy. … [146] Bauman C.J.B.C. described the error in the Goldson reasoning as follows: 61 The error of the Court in Goldson was to read the addition of the certification of the alcohol standard as a precondition to be a“significant change”. That understanding fails to consider the scheme (or the predecessor scheme) as a whole.

Then at paras. 75 to 77, Bauman C.J.B.C., writing for the Court, summarized his conclusions as follows: 75 ... It is not necessary for the Crown to go beyond the qualified technician’s certificate or oral evidence as to the fact of the alcoholstandard’s certification. If the accused in any case wishes to put that fact in further issue, they may avail themselves of the procedures setout in ss. 320.32(2), (3) ... 76 In my view, this disposition of the issue of statutory

interpretation best serves the modern rules of statutory construction,interpreting the words harmoniously with the overarching objective of the legislative scheme historically and today and the objectivesset out in the

preamble 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[the qualified technician] ever looked at the Certificate of Analyst,” that there was no evidentiary foundation that in making thisstatement about the analyst’s certification Constable Caron “had actually done something to satisfy himself that this was the case.” Itwill be seen that this concern is not necessarily driven by resolving the issue of statutory

interpretation. In my view, however, theconcern is completely answered by the record before the trial judge. The certificate says that the qualified technician conducted theappropriate calibration check using an alcohol standard “which was certified by an analyst.” That is evidence of “the facts alleged.”There was no evidence to the contrary before the trial judge; a conviction necessarily follows. [147] I adopt the reasoning and the conclusions reached by Bauman C.J.B.C.

The Ontario Superior Court in R v Hepfner, 2022 ONSC6064 at paras 8-21, also preferred this reasoning over that in Goldson. … [158] Accordingly, for the reasons above, I conclude that it is not necessary for the Crown to go beyond the Certificate of a Qualified

Technician and also file the Certificate of an Analyst, although the Crown must disclose the Certificate of an Analyst to the accused. The disclosed Certificate of an Analyst may, in some cases, lead to further requests for disclosure and/or requests to cross-examine the author of the certificate. [ 25 ] With the greatest of respect to the Alberta Court of Appeal and Mr. Patterson, I prefer and adopt the analysis of Chief Justice Popescul. In short, it is not necessary to enter the Certificate of an Analyst with the Certificate of a Qualified Technician to make the case under s. 320.14(1) (b). 3.

Reasonable Notice [ 26 ] By finding that the Certificate of an Analyst need not be served also renders moot the Provincial Court’s conclusion that service of 60 days was necessary for the certificate to be entered. Nonetheless, the argument should still be addressed. [ 27 ] Chief Justice Popescul addresses that debate in his analysis, commencing at paragraph 189: [189] However, the contention that reasonable notice must be interpreted to be at least 61 days prior to trial has been considered, and refused, in this jurisdiction. In R v Turgeon , 2021 SKQB 236 , 86 MVR (7th) 224 [ Turgeon ], Klatt J., as a

summary conviction appeal judge specifically rejected this same argument, albeit when dealing with the analogous provisions respecting the Certificate of a Qualified Technician. The relevant portions of the decision of Klatt J. on this point are as follows: 75 The appellant asserts that the judge should not have admitted the certificate of the qualified technician [certificate] into evidence on two footings.

One, the Crown had not provided notice of its intention to produce it before trial in accordance with s. 320.32(2) of the Criminal Code . ... 76 As to the first complaint, the appellant’s counsel did not dispute the Crown’s submissions that she and the prosecutor had several conversations or exchanges of emails about the certificate prior to the trial. She argued, however, that those were privileged communications and should not have been disclosed by the Crown in response to her argument.

She also argued that s. 320.32(4) provides for the ability to apply to the court for an order requiring the attendance of the officer who signed the certificate but only where the application is given to the Crown 30 days in advance of the date the application is to be heard. Thus, she argues, in order for such an application to be made, the certificate must be served closer to 60 days in advance of the trial. ... 78 The trial judge found that had Parliament intended a specific notice period in s. 320.32(2), it would have said so.

She proceeded to determine whether “reasonable notice” as required in s. 320.32(2) was given in this case. Here, the judge referred to the conversations that had taken place in the lead up to trial specifically relating to the certificate. The trial judge found further that the appellant had been served with the certificate under the predecessor provision and knew the Crown would be relying on it. She also found as fact that the appellant and his counsel knew of the new certificate.

She further noted that the appellant could have asked for an adjournment in order to prepare an application to cross-examine the officer who signed it, but no adjournment was requested. I cannot find error in the trial judge’s conclusions. [Emphasis added] [190] The trial judge considered himself bound by Turgeon and ruled against Mr. Wright in this point. The trial judge’s finding and conclusions on this point are as follows: ... The Crown submits that Parliament did not set out a specific number of days for the notice requirement and they have given Mr. Wright reasonable notice.

In this case, no application to cross-examine the analyst who signed the certificates was made by Mr. Wright. I have reviewed the cases provided by Mr. Wright. Some conclude that the reasonable notice is 61 days while others conclude that Parliament did not set a specific notice period. I find that I am bound by the decision in Turgeon where the appeal court found that the trial judge did not err in finding that Parliament did not intend a specific notice period.

Even if I was not bound by that decision, I agree with the reasoning in Regina v Szpejer , 2021 ABPC 198 , where the Court said the following, If Parliament had intended for reasonable notice to be at least 60 days, it could have specifically said so. It did not. In paragraph 11: Not all defence counsel will wish to cross-examine on a certificate, either by an analyst or a qualified technician. If they do not, then the two 30-day time limits do not apply.

Even if defence counsel does not wish to cross-examine and they have not been given notice in time to bring the application and comply with the time limits for doing so, the prosecution could solve the problem caused by their negligence to agreeing to produce the analyst without the necessity of the hearing. I agree with those statements. So following the decision in Turgeon and the reasoning in Szpejer, I find that the Sections do not create a reasonable notice standard. As Mr.

Wright did not make an application to cross-examination the analyst, I find that the 14 days notice was reasonable in this case . [Emphasis (bold) added] [ 28 ] I again adopt the analysis of Chief Justice Popescul and, thus, overrule the learned Provincial Court trial judge’s conclusion that 60 days notice was required. Conclusion [ 29 ] Accordingly, I overturn the accused’s acquittal on the charge under s. 320.14(1) (

b) of the Criminal Code . The matter is to be remitted back to Provincial Court for sentencing. “R.S. Smith” J.

R.S. SMITH