R. v. Hopkins

R. v. Hopkins Court Supreme Court Date 2009-02-18 Citation 2009 NSSC 53 Docket SY 299404 Judge/Registrar/Adjudicator Duncan, Patrick J. (Honourable Justice) (SC) Document Type Decision Decision Content SUPREME COURT OF NOVA SCOTIA Citation: R. v. Hopkins, 2009 NSSC 53 Date: 20090218 Docket: SY 299404 Registry: Yarmouth Between: Her Majesty the Queen Appellant v. Richard George Hopkins Respondent Judge: The Honourable Justice Patrick J. Duncan Heard: January 9, 2009, in Shelburne, Nova Scotia Written Decision: February 18, 2009 Counsel: James Fyfe, for the appellant Philip J. Star, QC, for the respondent By the Court: INTRODUCTION [1] The respondent, Richard George Hopkins, was found not guilty after trial on charges that he: On or about the 7th day of September 2007, at or near Shelburne, Nova Scotia, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 milliliters of blood did operate a motor vehicle contrary to section 253 (b) of the Criminal Code; And furthermore while his ability to operate a motor vehicle was impaired by alcohol did operate a motor vehicle contrary to section 253 (a) of the Criminal Code. [2] The Crown appeals from that verdict. FACTS [3] At the time and place alleged in the Information, Mr. Hopkins was detained by police officers, after he was found operating a motor vehicle in suspicious circumstances. Constable Steeves noted indicia of impairment and formed a belief that the accused had, within the previous three hours, committed an offense contrary to section 253 of the Criminal Code R.S.C. 1985, c.C-46. The respondent was placed under arrest, provided with his Charter of Rights and Freedoms rights, and given a police caution. [4] The peace officer made a demand to the respondent pursuant to section 254 (3) of the Criminal Code, which required that the respondent provide samples of his breath, as in the opinion of a qualified technician, were necessary to enable a proper analysis to determine the concentration, if any, of alcohol in the respondent’s blood. [5] Custody of Mr. Hopkins was transferred to Constable Brian Bonnell, who is a qualified technician and was on duty at that time. Breath samples were obtained from the respondent, and a Certificate of Qualified Breathalyzer Technician was prepared in accordance with section 258 (1) (g )of the Criminal Code. A copy was served on the accused, and was later entered as exhibit in the trial before the Provincial Court judge. [6] The Certificate provides a space where the qualified technician is required to affix his signature. In this case, the Certificate was not signed but, instead, the words “Constable Brian G. Bonnell” are typewritten in the space indicated. [7] Constable Bonnell was called as a witness at the trial. He confirmed that he is a qualified technician, that he tested the accused and then typed his name on the Certificate, which was served on the accused. DECISION OF THE TRIAL JUDGE [8] The learned trial judge reviewed the evidence and concluded that the Crown had not met the burden to prove beyond a reasonable doubt that the respondent’s ability to operate a motor vehicle was impaired by alcohol and, therefore, found him not guilty in relation to the offense alleged contrary to section 253 (a). He reached this conclusion without reference to the breathalyzer test results. [9] With respect to the allegation that the respondent had committed an offense contrary to section 253 (b), the learned trial judge concluded that the Certificate did not meet the requirements of section 258 (1) (g) of Criminal Code, because it is “incomplete” on its face. He further concluded that it was not an error that was capable of being corrected by the viva voce evidence of the technician. As a result, the Certificate was held to be inadmissible, and the respondent was found not guilty of this offence as well. ISSUE [10] The sole ground of appeal is stated by the appellant in the following terms: That the learned trial judge erred in law in concluding that viva voce evidence from a Qualified Technician could not correct an omission on the Certificate of a Qualified Technician. POWERS OF A SUMMARY CONVICTION APPEAL COURT [11] This appeal has been brought pursuant to section 813(b)(i) of the Criminal Code. The powers of a summary conviction appeal court are, in accordance with the provisions of section 822 (1) of the Criminal Code, as found in section 686 (4) of the Criminal Code, which reads: 686 Powers (4) if an appeal is from an acquittal or verdict that the appellant or respondent was unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal may (a) dismiss the appeal; or (b) allow the appeal, set aside the verdict and (i) order a new trial, or (ii) except where the verdict is that of a court composed of a judge and jury, enter a verdict of guilty with respect to the offense of which, in its opinion, the accused should have been found guilty but for the error in law, and pass a sentence that is warranted in law, or remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law. Section 258 Criminal Code [12] The relevant parts of section 258 (1) of the Criminal Code are: (1) In any proceedings under section 255 (1) in respect of an offence committed under section 253 or in any proceedings under section 255 (2) or (3), . . . (c) where samples of the breath of the accused have been taken pursuant to a demand made under section 254(3), if (i) [unproclaimed] (ii) each sample was taken as soon as practicable after the time when the offense was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least 15 minutes between the times when the samples were taken, (iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and (iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician, evidence of the results of the analyses so made is, in the absence of evidence to the contrary, proof that the concentration of alcohol in the blood of the accused at the time when the offense was alleged to have been committed was, where the results of the analyses are the same, the concentration determined by the analyses and, where the results of the analyses are different, the lowest of the concentrations determined by the analyses; . . . (g) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254 (3), a certificate of a qualified technician stating (i) that the analysis of each of the samples has been made by means of an approved instrument operated by the technician and ascertained by the technician to be in proper working order by means of an alcohol standard, identified in the certificate, that is suitable for use with an approved instrument, (ii) the results of the analyses so made , and (iii) if the samples were taken by the technician, (A) [ unproclaimed] (B) the time when and place where each sample in any specimen described in clause (A) was taken, and (C) that each sample was received from the accused directly into an approved container or into an approved instrument operated by the technician, is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate; [13] The statute permits the evidence of the technician to be admitted without his or her personal attendance at the trial, provided that the preconditions to admissibility set out above are met. Without legislative authorization for this procedure, and in the absence of the technician’s testimony, the evidence would be inadmissible as hearsay. Parliament has seen fit to create this exception to the usual rule of evidence, and in so doing potentially saves the prosecution and the police services the cost and time commitment that requiring the personal attendance of the technician would necessarily entail. [14] It also has the effect of putting the onus on the accused to bring forward a challenge to that evidence, or accept the information contained in the certificate as proven fact. In this respect, the procedure has an impact on the traditional means by which the Crown prosecutes and the accused defends a criminal case. As stated in the case of R v Noble, [1978] 1 S.C.R. 632, at page 638 : The effect of section 237 both before and after the amendment is to establish the conditions under which the certificate of a qualified technician is admissible, without further evidence, as proof of the proportion of alcohol in the blood of the accused. These provisions are obviously designed to assist the crown in proving its case, and as they serve to restrict the normal rights of the accused to cross examination and saddle him with the burden of proving that the certificate does not accurately reflect his blood-alcohol content at the time of the alleged offense, they are to be strictly construed and, where ambiguous, interpreted in favor of the accused. [15] Notwithstanding this comment, there has been a considerable, judicially sanctioned, erosion of the requirement for strict compliance, albeit, as the ensuing review of the caselaw reflects, a principled and consistent one. POSITION OF THE APPELLANT [16] The Crown argues that the failure of the technician to sign the Certificate should be curable, in the same way and on the same grounds as those cases where there is a misspelling, or an omitted piece of data in the Certificate. If the technician testifies, providing correcting information, and provided there is no prejudice to the accused’s ability to make full answer and defence, then the court should allow the Certificate to be admitted for the truth of its contents and without further evidence from the technician. [17] The Crown also argues that the type written name of the technician constitutes a “signature”, at least where, as here, the officer testified that he entered the information personally and that it was his “signature”. POSITION OF THE RESPONDENT [18] The respondent argues that the failure to affix a personalized signature to the Certificate renders it incomplete and inadmissible, irrespective of the viva voce evidence of the technician. CASELAW The “errors” cases [19] In R. v. Ryden, [1993] A.J. 852 (Alta.C.A), relied upon by the Crown in this case, the court was presented with a Certificate of Analysis that was prepared and served on the accused, and which contained a misspelling of the accused’s name. There was no attempt by the crown to serve a new Certificate of Analysis nor was an amended or corrected certificate prepared. The breathalyzer technician was called as a witness and testified that the respondent was in fact the person who provided the samples referred to in the certificate. The court concluded that the typographical error could be corrected by viva voce evidence. [20] The court, at paragraph 16, summed up as follows : Thus it is clear that this court has said that if an error appears in the certificate of analysis, and is properly corrected, that error is not fatal to the admissibility of the certificate if by reason thereof the accused was not misled or his right to make full answer and defense and receive a fair trial interfered with. [21] The court, in reaching its conclusion, cited with approval its’ own decision in R v Bykowski (1980), 54 CCC (2d) 398 (Alta C.A.), a case where an arresting officer testified so as to correct the typographical error in the certificate of analysis which incorrectly stated the year in which the events took place. [22] The Ontario Superior Court of Justice agreed with this view in R v Rebelo, [2003] O.J. 4634. In that case, the certificate of analysis incorrectly specified the time of the second test as being at 9:37 PM, when in fact it was 9:37 AM. Although the technician did not testify at trial, Justice Durno upheld the trial judge’s decision to admit the certificate results on the basis that the information could be corrected by extrinsic evidence found in the testimony. [23] The court conducted a review of cases dealing with inaccurate certificates and states: 38 While I accept that certificates are to be strictly construed, the weight of authorities since Noble has favored a pragmatic approach to certificates which contain omissions or typographical errors, provided the accused has not been prejudiced and the error is manifest having regard to all of the evidence. [24] The Nova Scotia Court of Appeal, in R v Zeimer (1994), 132 N.S.R. (2d) 147 (N.S.C.A.), considered a situation where the lot number of the alcohol standard was incorrectly stated in the certificate of analysis. At trial, the technician testified that the test ampoule lot number was inserted where it should have reflected the lot number of the alcohol standard. Hallett J. A., speaking on behalf of the court stated: 10 The crown may take advantage of the statutory presumption in section 258 (1) (c) of the Criminal Code by offering proof by certificate or by viva voce evidence of a qualified technician of the matters specified in section 258 (1) (c) R v Lightfoot, [ 1981 1 SCR 566. 11 There is ample authority to allow viva voce evidence to correct an error in the certificate. If the certificate is complete on its face, even though it contains an error, it is admissible and can be corrected. ( R. v. Pearce (1983), 3 C.C.C. 434 (Ont. C.A.); R. v. Taylor , 38 M.V.R. 263 (C.A.); R. v Gosby (1974), 8 N.S.R. (2d) 183). [25] It is important to note that the Appeal Court set a precondition for permitting viva voce to correct the error : the certificate must be “complete on its face”. The “signature” cases [26] In R v Faber (1972), 9 C.C.C. (2d) 353 (B.C.S.C.), the certificate of the analyst did not bear the signature of the analyst, other than as an impression made by a rubber stamp. There was no testimony in the trial indicating that a designated analyst had signed a certificate . Gregory J. states at page 356 : The Criminal Code permits proof of the suitability of the substance or solution “ ...without proof of the signature or the official character of the person appearing to have signed the certificate”. It does not, however, raise any presumption that a rubber stamp facsimile is that of, or even used with the authority of, someone authorized to give a valid certificate: nor does it raise any presumption that the person affixed the facsimile was an “analyst” within the meaning of section 237 (1)( b). [27] In rejecting the certificate as inadequate, the court stated: Even a moron can affix a rubber stamp facsimile signature on the certificate but he does not necessarily have the qualification to know that he is affixing the facsimile signature to a certificate relating to the substance tested and found suitable by the designated analyst. [28] The Saskatchewan Court of Appeal had a different problem in R. v Glass (1973), 12 C.C.C. (2d) 450. There, the original certificate was properly executed but the copy served on the accused was unsigned. The court concluded that this was acceptable since the copy “...was true in all of the essential particulars and conveyed to the accused all the information required and could not have possibly misled him in any way.” see, at para. 11 [29] The judge in R. v Hall, 2001 NSPC 29 was asked to exclude a certificate where the technician block printed his name on the signature line. The learned trial judge referred to the following definition of “signature” as found in Wharton’s Law (Lexicon 11th ed.): a sign or mark impressed upon anything, a stamp, a mark; the name of a person written by himself either in full or by initials as regards his Christian name or names, and in full as regards his surname or by initials only or by mark only, though he can write. [30] After noting that the qualified technician’s printed name was “in the same hand as appears on the rest of the certificate”, the judge concluded that the requirements of the Criminal Code were satisfied, that the certificate was complete, and therefore admissible. [31] In a brief decision, in the matter of R. v. Fyke 2006 NSPC 1598898; 1598899, Nichols P.C.J. ruled that the certificate was improper and not admissible as the technician’s name was typed and not signed. This is the only case that I have been referred to which approximates the facts of the matter before me. ANALYSIS [32] I have concluded that the learned trial judge was correct in ruling as inadmissible a certificate that bears only the typed name of the technician. The wording of section 258(1)(g) is clear in its requirement that a signature be affixed . It is permissive only in that the signature does not have to be proved for the Certificate to be admissible. [33] There is no evidence in this case that the accused would have been prejudiced in his defense by the fact that the technician entered his name by typing it. However, there are policy considerations that, in my mind, outweigh that fact. [34] This is a mistake that is unlike those found in the many cases where errors or omissions are capable of being corrected by viva voce evidence. In each of those cases the technician certified the accuracy of the information contained therein. Testimony was then provided to correct errors. [35] The “signature”, however, is the unique and personal attestation of the technician as to the accuracy of the contents of all of the “facts” that are set out in section 258 (1)(g). Without it, the certificate cannot be admitted. The information contained therein is a precondition to admissibility of the results necessary to section 258(1)(c). [36] This leaves the question as to whether a typed “signature” should be sufficient for this purpose. I have concluded that it is not. There is nothing unique about a typed name. To accept that a typed signature is sufficient sets the threshold for compliance with section 258 too low. It would allow for the possibility of anyone typing the name in the designated signature space and it would still be admissible without the attendance of the technician in court to prove the facts set out therein, or even to verify who filled in the “signature”. Unlike Hall, supra, there would be no opportunity to compare the “hand” that entered the information on the certificate with that of the signatory. [37] Is the failure of the technician to personally ascribe his/her own unique personal “signature” one that is capable of being remedied by the viva voce evidence of the technician? It is, but it is a remedy without a difference. For the certificate to be admitted the technician must attend court and certify to the court that all of the information required by section 258(1) is in the certificate, that it is correct and that he certifies it to be so. At that point, the introduction of the certificate is meaningless since the technician has been required to give all of the same information that introduction of the certificate was meant to abridge. [38] In this case, the technician did testify. No explanation was offered to suggest that there was a necessity to type the technician’s name, instead of signing it. Accepting that as a matter of policy, a typewritten version of the technician’s name does not constitute an adequate “signature”, the information set out therein was not properly certified to be accurate. The Crown recognized the potential problem and so lead evidence from the technician intended to resolve any concerns. [39] Constable Bonnell testified that: · he is a qualified technician; · he prepared the Certificate of a Qualified Technician on September 8, 2007; · the times that each of the two tests were administered; · the name of the person providing those tests, being, Richard George Hopkins; · and that the accused was the person tested. [45] He gave the following testimony, in response to a leading question on direct examination, with respect to the “signature” on the Certificate: Q. Thank you. And, I note that-that you didn’t sign this, you’ve just got your name typed in there as a Qualified Technician? A. That’s correct, sir. Q. But this is, in fact, your-your-your-your signature? A. Yes sir, yes sir. [46] This concluded his evidence as to the contents of the certificate and his role in administering the tests to the respondent. He did not certify that the contents of the Certificate were accurate. [47] He could have testified as to the test procedure that he followed and the results, but the evidence did not satisfy the requirements of 258(1) (g) (i), (ii) or (B). It failed, in part, to satisfy (C) in that he did not certify or otherwise state that the accused provided the sample “... directly into an approved container or into an approved instrument operated by the technician”. [48] It was not the fact of his entering the “signature” which was material, rather it was the technician’s certification of the accuracy of the information, and which the signature attested to, that needed to be addressed by the viva voce testimony. [49] Without the technician either testifying as to what he did, and thereby satisfying section 258(1)(c), or testifying that the information in the certificate was accurate, thereby satisfying 258(1)(g), the court did not have sufficient evidence before it to admit the test results. Summary [50] A Certificate of Analysis that only bears the typewritten name of the technician fails to comply with section 258(1) of the Criminal Code and is not admissible for proof of the information contained therein. [51] The Crown can adduce the evidence set out in the certificate through the viva voce evidence of the technician, not relying on the certificate, or by the technician identifying the certificate and certifying to the court that the facts set out therein are accurate. [52] In this case the evidence lead by the Crown did not certify the accuracy of all of the material “facts” set out in the Certificate. In the absence of such certification or other evidence as to the test procedures and results, the court lacked sufficient evidence upon which to admit the Certificate, or to otherwise conclude that the requirements of section 258(1)(c) were met. [53] The appeal is dismissed. DUNCAN J.