J. Q.B. A.D.1996 No. 36A J.C. W. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF WEYBURN BETWEEN: HER MAJESTY THE QUEEN and KELLY R. LONGLEY Nancy M. Drew for the Crown Michael D. Tochor for the accused JUDGMENT KYLE J. March 11, 1997 Mr. Longley was charged that on or about the 10th dayof June, 1995, in Ogema, Saskatchewan, that he did, while hisability to operate a motor vehicle was impaired by alcohol ora drug, operate a motor vehicle contrary to s. 255(1) ands. 253(a) of the Criminal Code and as well he was charged thaton the same date, he operated a motor vehicle when his bloodalcohol level exceeded 80 milligrams of alcohol in 100millilitres of blood (.08). At the trial the Crown tendered certificate of analyses establishing that the blood alcohol level was .18 in both the first and the second samples taken from the accused and an affidavit of service by Constable L. P. Weber was tendered in evidence establishing that "true copy of the certificate" had been served upon the accused. In argument questions were raised as to the sufficiency of the evidence in respect of the copy which was given to the accused. In number of cases where the method adopted by the police officer of creating the copy has been the subject of questioning and has been found to be deficient, courts have refused to admit the certificate of analyses. In the case at bar, the judge said: The Court in this instance in [sic] unable to infer that true copy was indeed served, failing the proof by the police officer by way of his testimony that he did compare the two. It's incumbent upon the police officer, be it carbon copy or indeed one of these new new types of Certificates with the copies, he still is required to compare, because there are typed versions. The printing that is pre-printed may be the same, but the there may be some mistake in regards to the typed versions due to possible corrections the police officer may have made in typing the document and not correcting the copies. He may have corrected the original and it was not transmitted on to the copies. So, he failed to make that comparison. These are only possibilities look at. therefore, as result, must deny the application of Crown to enter the document as full Exhibit. The law is clear that the affidavit is to be received as evidence unless the officer is challenged in that respect and it emerges that there was some deficiency in the preparation of the copy which would negate the evidence of its being true copy. The relevant evidence was as follows: So again, you've gone through in some detail as to exactly the steps you took, and take it there's no other steps that you took in relation to giving him or explaining those documents to him? don't understand what you mean by "other steps". Did you do anything else? As I've stated, prepared the documents. Some of them hand wrote, some of them typed, and then proceeded to go through them with Mr. Longley and provide him with copies of all the documents and explained them. He indicated to me that he understood what his readings were, that he basically when he had to come to Court and that. know you've repeated it but did you do anything else other than what you told the Judge? Not that recall specifically. So basically you would have just taken the time, as you've said you've done, got the documents in front of him, explained them to him, and then his mother came and he was released. Is that essentially it? prepared the documents, explained the documents, what they were, to Mr. Longley and provided Mr. Longley with copies of the documents. So take it when say that was essentially it, the answer is "Yes"? Pertaining to the documents, yes. Okay. There were no other steps that you took in relation to the documents? Other than preparing them and explaining them and serving Mr. Longley, I'd say no. Had counsel on cross-examination wished to raise the question of whether the original certificate of analyses had been compared to the copy thereof, he could quite easily have done so. The subsection in question, s. 258(7) says: 258(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 copy of the certificate. It appears that this rather innocuous subsection which requires that copy of the certificate be given to the "other party", normally the accused, has received much attention and in the course of that attention it has been judicially been amended to mean "true copy" which presumably, though not logically, means something more than "copy". It has also been allowed to grow to the point where the affidavit may be disregarded if the police officer does not provide supplemental evidence when challenged as to the manner in which he assured the accuracy of the copy. By the judgment in this case the trial judge hasfurther advanced the law to a point where even when notchallenged there is an obligation to provide supplementalevidence of comparison, etc. in order to buttress the evidenceof the affidavit. I hold this to be an error of law. Prosecutions of this type are not infrequent and when police officer completes the affidavit of service his memory is fresh. As time passes between that moment and the trial of the action it is reasonable to expect his specific recollection of one particular set of copies may dim and so the affidavit must be at least as reliable as his recollection of the events some weeks or months later. It would not be unreasonable to require that if thereis to be a challenge under this subsection of the affidavit orof the copy supplied, it should be based upon a discovereddifference as between the copy and the original. Otherwise the refusal to admit the certificate becomes merely the prize in procedural game which can only bring the justice system into disrepute. The object of this section is to assure that the accused knows the case he has to meet. Unless the copy which he receives is in some way different from the original, that object has been met. There is no reason to elevate the requirement beyond that level of importance. was asked notwithstanding the above finding of error of law to consider whether, in the circumstances the police officer was justified in stopping the respondent's vehicle. He had heard the noise of squealing tires and saw the vehicle shortly thereafter. It was late, Ogema is small, he apparently had reasons for the suspicion which brought about the stop. was asked to confirm the acquittal notwithstanding the existence of an error of law in respect of the certificate of analyses because the stop was not justified. The validity of the stop is one of fact and would not be prepared to rule on it. The appellant is entitled to anew trial.
The accused was acquitted on a charge of operating a motor vehicle while impaired by alcohol or drugs and while his blood alcohol level exceeded 80 milligrams of alcohol in 100 millilitres of blood when questions were raised as to the sufficiency of the evidence with respect to the copy of the certificate of analysis. HELD: 1)Section 258(7) has been judicially amended to mean 'true copy' which presumably, though not logically, means something more than 'copy'. It has grown to the point that an affidavit may be disregarded if the police do not provide supplemental evidence when challenged as to the manner in which they assured the accuracy of the copy. 2)The trial judge further advanced the law to a point where, even when not challenged, there is an obligation to provide supplemental evidence of comparison in order to buttress the evidence of the affidavit. This is an error of law. A challenge under s258(7) should be based upon a discovered difference as between the copy and the original. Otherwise the refusal to admit the certificate becomes merely a prize in a procedural game which can only bring the justice system into disrepute. 3)A new trial was ordered to determine whether the stop was justified.