R. v. Fryza, 2012 MBCA 47

Citation: R. v. Fryza, 2012 MBCA 47 Date: 20120518 Docket: AR 12-30-07712 IN THE COURT OF APPEAL OF MANITOBA B E T W E E N : HER MAJESTY THE QUEEN ) T. J. Killeen ) for the Applicant (Respondent) Respondent ) ) R. N.

Malaviya ) for the Respondent - and - ) ) ) Chambers motion heard: STANLEY FRYZA ) April 12, 2012 ) (Accused) (Appellant) Applicant ) Decision pronounced: ) May 18, 2012 FREEDMAN J.A. 1 After a trial before a judge of the Provincial Court (the trial judge), the applicant was convicted of having operated a motor vehicle while his blood-alcohol concentration exceeded 80 milligrams of alcohol in 100 milliliters of blood. On appeal to a judge of the Court of Queen’s Bench sitting as a

summary conviction appeal judge (the appeal judge), the conviction was set aside, and a new trial was ordered.

Pursuant to s. 839(1) of the Criminal Code , the applicant seeks leave to appeal the order for a new trial, arguing that in the circumstances, the appeal judge erred in law and was bound to acquit him rather than order a new trial. 2 At the trial, the contentious issue was whether the Crown had complied with s. 258(7) of the Criminal Code , which requires that before a certificate of analysis relating to blood-alcohol levels may be received in evidence, the Crown must, before the trial, give to the accused person “a copy of the certificate.” A copy had, in fact, been given to the applicant, but he argued that it was an incomplete copy as some part of it was cut off in the copying process.

The trial judge found for the Crown, saying: … [T]he material elements of the certificate are included and in particular with regards to the readings of the breath samples taken, the times of those and, and with regards to the nature of the instrument. What we’re arguing over is a lot number which doesn’t -- and from my viewing of it, it doesn’t eliminate the fifth digit in that lot number but, in fact, has shaved off the right half of the two and it’s apparent that there is another number beside the 2066. …. … [I]t’s clear in my viewing of it that, in fact, there’s another number after the 2066.

It appears to be a two but I have the benefit of, of the sergeant telling me it’s a two and I have the original which does clearly say two. But when it goes to whether or not that’s a material factor, and I think not, it’s, it’s a matter where under … it’s a case that I believe that, in fact, the Crown has met its obligation. 3 The trial judge described the copy that had been given to the applicant as an “innocent photocopy in which there’s a shifting of the paper,” but said that the material elements were present. He allowed the original certificate of analysis to be entered as evidence.

The applicant called no evidence and the trial judge found him guilty, on the basis of the certificate of analysis. 4 The appeal judge took a different view of the copy of the certificate that had been given to the applicant. He found that the omissions in the copy were material, and he posed this question:

Can an original certificate, complete on its face, be admitted into evidence if the copy given to the accused was incomplete in a materialrespect? …. 5 His answer was that it could not be admitted into evidence, and thus, he said, the trial judge had erred in admitting theoriginal certificate into evidence. 6 To that point in the appeal judge’s reasons there is no issue taken by the applicant. Moreover, while the Crown disagreeswith the appeal judge’s ruling on admissibility, it has not taken steps to overturn his decision.

What is before me, and what the applicantseeks leave to challenge before a panel of this court, is what followed the appeal judge’s finding of inadmissibility: …. Here, upon receiving and reading the copy, the accused must have known that his copy was not complete. Knowing of thedeficiency, he could have obtained the proper information by asking the Crown to furnish him with another copy. Failing to do sosuggests to me that he was not interested in verifying the accuracy of the machine upon which the test was performed, in which case,although section 258(1)(

g) stipulates that the identification of the alcohol standard is material, Mr. Fryza did not consider it so. However, the [Criminal Code] says what it says, and there was no discretion on the learned trial judge to overlook the deficiency. I amtherefore prepared to allow the appeal to the extent of setting aside the conviction. 7 The appeal judge continued: However, that does not end the matter. The error made by the learned trial judge was on an evidentiary ruling, not on a decisionrespecting guilt or innocence after all the evidence had been led.

For example, in the circumstances of this case, had the learned trialjudge rendered the original certificate inadmissible, the Crown, in my respectful opinion, would have been justified in requesting anadjournment for the purpose of calling the technician as a witness to prove his or her evidence viva voce.

That did not happen becausethe original certificate was admitted and no adjournment was therefore required. 8 The appeal judge concluded: The better course to follow is therefore to remit the matter back for a new trial before a different judge, at which time the Crown will beable to prove its case through the viva voce evidence of the technician. Alternatively, it might consider the provision of a proper copy ofthe certificate to the accused prior to the commencement of the new trial.

The appeal is allowed, the conviction is set aside, and thematter is remitted back to another judge of the provincial court for a new trial. 9 The applicant alleges that the appeal judge committed several legal errors; he speculated on what other evidence mighthave been available to convict the applicant, he shifted the burden of proof from the Crown to the applicant by ruling that he should havenotified the Crown of defects in its case, he imposed on the applicant a requirement to point out errors in the Crown’s case contrary to hisrights under s. 7 of the Canadian Charter of Rights and Freedoms (which would also be a shifting of the burden of proof) and he erred inordering a new trial.

If leave is granted he will ask this court to order an acquittal since, he says, there was no evidence properlyadmitted upon which he could have been convicted. In support of each of those arguments he advanced reasons and in certain instancesauthorities. As I have decided to grant leave I will not detail his position further, since some or all of it will be dealt with by a panel ofthis court on the appeal. 10 The Crown opposed the leave application on the basis that it would lead to a second-level appeal, and it said thatexceptional circumstances must exist before such an appeal should be heard.

It relied on several decisions, including R. v. R.W.M., 2011MBCA 74 at paras. 23-26, 270 Man.R. (2d) 29. There is no doubt that as a general proposition the Crown’s position is correct. 11 At para. 23 of R.W.M., I quoted my colleague Steel J.A. in R. v. McCorriston (G.J.), 2010 MBCA 3, 251 Man.R. (2d) 106,where she summarized the standard of review applicable to an application such as the present (at para. 16): The criteria to be met before leave to appeal is granted are well settled and set out in s. 839 of the Criminal Code and in the cases of R.v.

Schalla (K.T.) (2007), 2007 MBCA 104 , 220 Man.R. (2d) 69; 407 W.A.C. 69; 2007 MBCA 104, at para. 1, and R. v.Langlois (D.J.) (2008), 2008 MBCA 72 , 228 Man.R. (2d) 256; 427 W.A.C. 256; 2008 MBCA 72. They are as follows:

(1) Any ground of appeal must involve a question of law alone.

(2) Even if a question of law does arise, leave should only be granted if the matter raises an arguable case of substance.

(3) The arguable case must be of sufficient importance to merit the attention of the full court. Since the case has already been reviewedby a judge of the Court of Queen’s Bench, which is the primary appellate court to review such matters, there should be a compellingreason to allow this second level of appeal. One compelling reason would be that the issue raises matters that are of significance to theadministration of justice or the development of the law beyond this case. See R. v.

Denys (C.D.) (2009), 2009 MBCA 39 , 240Man.R. (2d) 13; 456 W.A.C. 13; 2009 MBCA 39. 12 In the present case, the issue now raised by the applicant, which is essentially that the appeal judge erred in ordering a newtrial, and the underlying reasoning for that decision, all originated with and arose for the first time with the appeal judge. None of thosematters had arisen before the trial judge. If this court was to hear an appeal on that issue, with its several facets, in my view, that wouldnot, in substance, constitute a second-level appeal, in the circumstances of this case.

For that reason, I do not accede to that part of theCrown’s argument. 13 The Crown argued that the appeal judge erred in deciding that the certificate of analysis was not admissible. This cannot bean issue at this stage, since it is only the applicant who seeks leave, and he, of course, has not disputed the appeal judge’s finding onadmissibility. The Crown has not sought leave to cross appeal on any aspect of the appeal judge’s decision.

The Crown did argue that,if leave was granted, the Court of Appeal would be free to consider whether the appeal judge was correct in his ruling on admissibility. 14 The Crown said, referring to the criteria on leave applications, that the applicant had not raised an arguable case ofsubstance of sufficient importance to warrant the attention of the full court. It said: “Despite any errors in [the appeal judge’s] decisionin overturning the conviction, the [trial judge] was correct … in finding the Applicant guilty.

There was never a viable argument foracquittal….” 15 This position, with respect, disregards the conclusion of the appeal judge that the certificate of analysis was inadmissible. Having so found, the appeal judge could either order a new trial or direct an acquittal. 16 As to whether the appeal judge arguably erred in ordering a new trial, see the decision of this court in R. v. Mabior (C.L.),2010 MBCA 93, 258 Man.R. (2d) 166, where Steel J.A. said (at para. 126): When an appeal is allowed with respect to a conviction, an appellate court may direct that a verdict of acquittal be entered or order a newtrial.

See s. 686(1)(

a) and s. 686(2) of the Criminal Code. The appeal court should exercise its discretion and enter an acquittal, ratherthan order a new trial, where it concludes there was no reasonable evidence of an essential element in the crime charged. See R. v.MacNeil (J.P.) (2009), 2009 NSCA 46 , 277 N.S.R. (2d) 22; 882 A.P.R. 22; 244 C.C.C. (3d) 88; 2009 NSCA 46, at para. 16,and The Honourable Mr. Justice E.G. Ewaschuk, Criminal Pleadings & Practice in Canada, 2nd Ed., Looseleaf (Aurora: TheCartwright Group Ltd., 2010) vol. 3, at para. 23:10120. …. 17 In R. v.

MacNeil (J.P.), 2009 NSCA 46, 277 N.S.R. (2d) 22, the Nova Scotia Court of Appeal referred to the decision of theOntario Court of Appeal in R. v. Levy (1991), (ON CA), 44 O.A.C. 5, saying (at para. 13): …. It [the Ontario Court of Appeal] then considered whether to order a new trial or acquit under s. 686(2). It referred to the generallyaccepted test for deciding whether a new trial should be ordered or an acquittal entered at p. 104: ...

Where reversible error of law has been committed but the evidence led at trial is such that a properly instructed trier of fact actingreasonably could have convicted, it is usually appropriate to order a new trial: R. v. More and Melville (1959), (BCCA), 124 C.C.C. 140, at pp. 146-150, 31 C.R. 59; 28 W.W.R. 562 (B.C.C.A.). 18 The Nova Scotia Court of Appeal also referred (at para. 16) to John Sopinka & Mark A.

Gelowitz, The Conduct of anAppeal (Markham: Butterworths Canada Ltd., 1993) where the authors state that the discretion given a court of appeal pursuant to s.686(2) should be exercised as follows (at p. 116): .... In circumstances in which the admissible evidence was such that a properly instructed trier of fact could reasonably have convictedthe accused, it is appropriate to order a new trial. Where, however, the court of appeal concludes that there was no evidence upon whicha properly instructed trier of fact could have convicted, the appropriate course is to direct a verdict of acquittal.

19 Based on the above, there is, in my opinion, an arguable case that the appeal judge erred in ordering a new trial rather than acquitting the applicant, since he had found that the only evidence of guilt was inadmissible.

I also conclude that the case advanced by the applicant raises issues of law alone, as required by s. 839(1) of the Criminal Code , and that, cumulatively, they are of sufficient importance to warrant the attention of the court. 20 Leave is granted on the questions proposed, which I restate as the follow ing single question: Did the appeal judge err in ordering a new trial rather than an acquittal when the only evidence of guilt was inadmissible? Subsumed in that question are the issues of whether his order of a new trial was based in error on (

i) speculation about evidence that was not adduced, but that might have been adduced to convict the applicant, and (ii) a shifting of the burden of proof to the applicant. J.A.