R. v. Hamm, [1977] 2 SCR 85

Supreme Court of Canada

R. v. Hamm, [1977] 2 S.C.R. 85

Date: 1976-04-01

Her Majesty the Queen Appellant,

and

John Peter Hamm Respondent.

1976: February 24; 1976: April 1.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA, APPEAL DIVISION

Motor vehicles—Breathalyzer—Certificate of analysis—Notice of intention to produce—“Reasonable notice”—Notice given immediately after breathalyzer test—Finding at trial that accused was intoxicated when notice was given—Validity of notice given prior to information being laid—Criminal Code, R.S.C. 1970, c. C-34, ss. 236, 237.

Respondent was acquitted on a charge under s. 236 of the Criminal Code that he had control of a motor vehicle having consumed alcohol in such a quantity that his blood-alcohol level exceeded 0.08. The Crown appealed by way of stated case. Respondent had been stopped by a police officer who formed the opinion that he was impaired. He accompanied the constable and within the two hour time limit, was given a breathalyzer test. On the completion of the test he was served with a written notice of intention to produce the technician’s certificate at his trial and a copy of the certificate. The certificate was produced at trial and indicated a blood-alcohol level of 0.18, however the trial judge concluded that at the time of service of the notice respondent was “intoxicated” and for this reason dismissed the charge. The Appeal Division dismissed the subsequent appeal by the Crown.

Held (Laskin C.J. and Spence and Dickson JJ. dissenting): The appeal should be allowed.

Per Martland, Judson, Ritchie, Pigeon, Beetz and de Grandpré JJ: It was only after the trial judge had seen the high blood-alcohol level as stated on the certificate that he could have held that by reason of intoxication respondent was not a person on whom reasonable notice could be given in terms of s. 237(5). There was no indication that any evidence whatever was called to describe respondent’s condition at the time he was served with the notice. The effects of the consumption of alcohol vary from individual to individual depending on a number of factors and the presumption of respondent

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having understood what was going on was not rebutted by consideration of the certificate of analysis. The certificate was however in the circumstances conclusive that respondent’s blood-alcohol level exceeded the prescribed limit.

Per Laskin C.J. and Spence and Dickson JJ., dissenting: The reasonableness of the notice contemplated by s. 237(5) is a question of fact. The determination by the trial judge as to whether the notice was reasonable or not should not therefore be interfered with unless the decision reflects some error in principle. There was evidence upon which the trial judge could conclude that at the time of service respondent was intoxicated. The stated case disclosed the almost classical signs of intoxication, the constable had testified that the respondent was intoxicated when the test was taken and the certificate showed that the blood-alcohol level was 0.18.

Per Spence J., dissenting: The stated case also disclosed that the notice and copy certificate were given to respondent prior to an information being laid. Section 237(5) provides that a certificate is only admissible if the party intending to produce it has “before the trial” given to the “accused” reasonable notice of his intention. At the relevant time there was no “accused” nor could it be said that a trial was in contemplation, as the words “before the trial” imply. As s. 237, particularly s. 237(1)(f) enables the Crown to short circuit the proof of the major element of the offence by the production of a certificate its provisions should be strictly construed.

APPEAL from a judgment of the Supreme Court of Nova Scotia, Appeal Division[1], dismissing an appeal by the Crown by way of stated case from an acquittal on a charge under s. 236 of the Criminal Code. Appeal allowed, Laskin C.J. and Spence and Dickson JJ. dissenting.

Gordon Gale and Terry Cooper, for the appellant.

J.T. MacQuarrie, Q.C., and Joel Pink, for the respondent.

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The judgment of Laskin C.J. and Dickson J. was delivered by

DICKSON J. (dissenting)—I have had an opportunity of reading the reasons prepared for delivery in this appeal by Mr. Justice Spence. I agree with him that the reasonableness of the notice contemplated by s. 237(5) of the Criminal Code is a question of fact for the magistrate and that there was evidence upon which the magistrate in the present case could properly conclude that service of the notice provided for in s. 237(1)(f) had not been reasonable under the provisions of s. 237(5). I am content to rest my judgment upon that ground alone and I express no opinion upon the second ground relied upon by Mr. Justice Spence, namely, that at the time of service Hamm could not be said to have been an “accused” within the meaning of s. 237(1)(f).

I would dismiss the appeal.

The judgment of Martland, Judson, Ritchie, Pigeon, Beetz and de Grandpré JJ. was delivered by

RITCHIE J.—This is an appeal by the Crown brought with leave of this Court from a judgment of the Appeal Division of the Supreme Court of Nova Scotia whereby that Court directed that a negative answer should be given to the following question posed by His Honour E.D. Murray in a case stated at the instance of the Crown arising out of his having ordered the acquittal of the respondent on a charge under s. 236 of the Criminal Code:

Did I err in law in holding that the Respondent should be acquitted by reason of the evidence of his intoxication at the time that he was served with a Notice of the Crown’s intention to produce the certificate of the qualified technician at his trial?

As I have indicated, the charge against the accused was that he:

Did unlawfully have the control of a motor vehicle having consumed alcohol in such a quantity that the proportion thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to Section 236 of the Criminal Code;…

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As in all such cases we are confined, as was the Appeal Division, to the facts as they are recited in the stated case. These disclose that at 10 p.m. on the 20th of December, 1973, the respondent was driving a motor vehicle in the City of Halifax when a police officer caused the vehicle to stop and demanded that the respondent accompany him to the police station “for a breathalizer test”.

The observations of the constable immediately before and at the time of his giving this demand are described in the stated case as follows:

He observed a motor vehicle, the driver of which was repeatedly blowing the horn apparently in an effort to cause a taxi parked in front of him to move. The Constable caused the vehicle to stop, found the Respondent to be the driver and observed the Respondent to exhibit certain physical signs usually associated with intoxication by alcohol, including certain difficulties in obtaining his driver’s license from his wallet, an odour of alcohol eminenating [sic] from the breath and unsteadiness on his feet. As a result of these observations the Constable formed the opinion that the Respondent was impaired…

The Respondent accompanied the officer and a breathalizer test was performed within the two hour time limit provided by subsection 237(1)(c) of the Criminal Code. A certificate of a qualified technician made pursuant to subsection 237(1)(f) of the Criminal Code was introduced into evidence. The certificate stated that at the time of the test the Respondent’s blood contained 180 milligrams of alcohol in 100 millilitres of blood.

Upon the completion of the breathalyzer tests the Respondent was released in the custody of another individual. Just prior to his being released, the Respondent was served with a written notice of intention to produce the certificate of the qualified technician as to the results of the last breathalyzer test at his trial together with a copy of the certificate. (Italics are my own).

The learned trial judge concluded with the following finding:

At the time this service was accomplished, the Respondent was according to the evidence, ‘intoxicated.’

The decision of the trial judge was in the following terms:

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DECISION:

As a consequence of the Respondent having been served with the document referred to above, while he was intoxicated, I dismissed the charge against him on the basis that the service was for that reason improper.

The provisions of s. 237(1)(f) of the Criminal Code pursuant to which the certificate of the qualified technician was made provides, in part:

237. (1) In any proceedings under section 234 or 236,…

(f) where a sample of the breath of the accused has been taken pursuant to a demand made under subsection 235(1), a certificate of a qualified technician stating

(i) that a chemical analysis of the sample has been made by means of an approved instrument operated by him in which a substance or solution suitable for use in that approved instrument and identified in the certificate was used,

(ii) the result of the chemical analysis so made, and

(iii) if the sample was taken by him,

(B) the time when and place where the sample … was taken, and

(C) that the sample was received from the accused directly into an approved container or into an approved instrument operated by him,

is evidence of the statements contained in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate.

It is, however, provided by s. 237(5) that:

(5) No certificate shall be received in evidence pursuant to paragraph (1)(d), (e) or (f) unless the party intending to produce it has, before the trial, given to the accused reasonable notice of his intention together with a copy of the certificate.

The learned trial judge makes no reference to the latter subsection anywhere in the stated case, but I think that the acquittal of the respondent “by reason of the evidence of his intoxication at the time when he was served” with the notice thereby required, carries with it the meaning that there was a failure to give “reasonable notice” as required by s. 237(5) and that the technician’s certificate could therefore not be “received in evidence pursuant to para. 237(1)(f)”.

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This is obviously the construction placed upon the finding by Chief Justice MacKeigan speaking on behalf of the Appeal Division, as is indicated by the fact that he described the trial judge’s decision as

… holding that the respondent had not been given reasonable notice; that s. 237(5) had not been complied with, and that the analyst’s certificate could not be admitted in evidence.

The stated case, however, discloses that the certificate “was introduced into evidence”, and I think it can therefore be concluded that the trial judge did not consider the police constable’s evidence of impairment to be a bar to its admissibility, which indicates to me that it was only after he had seen the high proportion of alcohol to blood which the certificate disclosed that the judge was able to hold that by reason of his intoxication, the respondent was not a person upon whom reasonable notice could be given as required by s. 237(5).

There can be no doubt that the certificate established that the accused had committed an offence under s. 236, but I think it to be common knowledge that the effects of the consumption of alcohol vary from individual to individual depending on a number of factors and with all respect to the learned trial judge, I do not think that he was justified in finding that the certificate also established that this particular individual, i.e., the respondent, was so intoxicated at the time of service as to be incapable of being served with reasonable notice.

The only evidence as to the effect on him of the alcohol which the respondent had consumed in such quantity is that when he was stopped on the roadway “the constable formed the opinion that the respondent was impaired”, and there is no indication that any evidence whatever was called to describe his condition at the time when he was served with the notice. It is not without significance, in my view, that the individual into whose custody he was released after having taken the breathalizer test does not appear to have testified as to his impression of the respondent. There is therefore, in my view, no evidence that the respondent’s condition at the time when he was

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served with the notice was, by reason of intoxication, such as to make that service improper. It is not necessary for the purposes of this appeal to make any finding as to the propriety or otherwise of effecting service of such a notice on a man who has been shown to have been in a more advanced stage of intoxication at the time of service than the respondent was in the present case and I make no such finding.

The respondent was served with the necessary notice under subs. (5) and I do not consider that the presumption of his having understood what was going on can be rebutted by a consideration of the result of the technician’s analysis.

On the other hand, I am of opinion that the technician’s certificate which “was introduced into evidence” speaks for itself as to the proportion of alcohol in the respondent’s blood having exceeded the limits fixed by s. 236.

I would accordingly allow this appeal, answer the question posed by the learned judge in the affirmative, and direct that a conviction be entered for the offence with which the respondent was charged.

SPENCE J. (dissenting)—This is an appeal from the judgment of the Appeal Division of the Supreme Court of Nova Scotia pronounced on May 2, 1974. By that judgment, the said Appeal Division held, in answer to a stated case submitted by the Magistrate, that he did not err in holding that the respondent should be acquitted by reason of the evidence of his intoxication at the time he was served with a notice of the Crown’s intention to produce the certificate of the qualified technician at trial.

The circumstances on which this appeal comes forward are as follows.

The respondent John Peter Hamm was acquitted by the learned magistrate, E.D. Murray, on March 22, 1974 upon the charge that he did have control of a motor vehicle having consumed alcohol in such a quantity that the proportion thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 236 of the Criminal Code. At the request of the

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Crown, the learned magistrate submitted a stated case and he outlined the facts in that stated case as follows:

FACTS:

On the 20th day of December, 1973, at 10:00 p.m., Constable Gregg A. Hewitt was driving a police vehicle eastward on Quinpool Road in the City of Halifax. He observed a motor vehicle, the driver of which was repeatedly blowing the horn apparently in an effort to cause a taxi parked in front of him to move. The Constable caused the vehicle to stop, found the Respondent to be the driver and observed the Respondent to exhibit certain physical signs usually associated with intoxication by alcohol, including certain difficulties in obtaining his driver’s license from his wallet, an odour of alcohol eminenating [sic] from the breath and unsteadiness on his feet. As a result of these observations the Constable formed the opinion that the Respondent was impaired and at 10:10 p.m. he read the Respondent the standard police demand that he accompany the officer for a breathalyzer test.

The Respondent accompanied the officer and a breathalyzer test was performed within the two hour time limit provided by subsection 237(1)(c) of the Criminal Code. A certificate of a qualified technician made pursuant to subsection 237(1)(f) of the Criminal Code was introduced into evidence. The certificate stated that at the time of the test the Respondent’s blood contained 180 milligrams of alcohol in 100 millilitres of blood.

Upon the completion of the breathalyzer tests the Respondent was released in the custody of another individual. Just prior to his being released, the Respondent was served with a written notice of intention to produce the certificate of the qualified technician as to the results of the last breathalyzer test at his trial together with a copy of the certificate. At the time this service was accomplished, the Respondent was according to the evidence, “intoxicated”.

DECISION:

As a consequence of the Respondent having been served with the document referred to above, while he was intoxicated, I dismissed the charge against him on the basis that the service was for that reason improper.

The learned magistrate then stated the following question for the opinion of the Appeal Division:

Did I err in law in holding that the Respondent should be acquitted by reason of the evidence of his intoxication at the time that he was served with a notice of the

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Crown’s intention to produce the certificate of the qualified technician at his trial?

Section 236 of the Criminal Code makes it an offence to drive a motor vehicle or have it in control having consumed alcohol in such a quantity that the proportion thereof in the blood exceeded 80 milligrams of alcohol in 100 millilitres of blood. Section 237 deals with the proceedings upon a prosecution for a breach of the said s. 236. In s. 237(1)(b), it is provided:

(b) the result of a chemical analysis of a sample of the breath of the accused (other than a sample taken pursuant to a demand made under subsection 235(1)) or of the blood, urine or other bodily substance of the accused may be admitted in evidence notwithstanding that, before he gave the sample, he was not warned that he need not give the sample or that the result of the analysis of the sample might be used in evidence;

Under the provisions of that subsection, the offence may be proved by providing the result of the analysis of a breath sample. Such a provision would, of course, require that the analyst should attend the trial and, in evidence, prove the analysis and the result thereof. However, s. 237(1)(c) provides that where a sample has been taken pursuant to demand then the evidence of the result of the chemical analysis so made is, in the absence of any evidence to the contrary, proof of the proportion of alcohol in the blood of the accused at the time when the offence was alleged to have been committed. Therefore, in this unusual provision the Crown is permitted to prove the analysis of blood upon which it bases its case not by adducing the evidence of the analyst but by simply filing his certificate. As a limitation on the right of the Crown to use this foreshortened method of proof, s. 237(5) provides:

(5) No certificate shall be received in evidence pursuant to paragraph (1)(d), (e) or (f) unless the party intending to produce it has, before the trial, given to the accused reasonable notice of his intention together with a copy of the certificate.

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In the particular case, the learned magistrate refused to convict because he found as a fact that the Crown had not given to the accused reasonable notice of its intention to prove by production of the certificate. The view of the learned magistrate was affirmed unanimously by the Appeal Division of the Supreme Court of Nova Scotia.

I am of the opinion that such a finding by the learned magistrate so affirmed by the Appeal Division was correct.

The reasonableness of the notice is a question of fact within the view of the magistrate and his determination of whether the notice was reasonable or unreasonable should not be interfered with by the decision of an appellate court unless such decision reflects some error in principle. The magistrate certainly had evidence upon which he could come to the decision that the person to whom the certificate was delivered was, at the time it was so delivered, intoxicated. The magistrate in reciting his facts in the stated case cited the evidence of the constable that the respondent exhibited the almost classical signs of intoxication and the view of the constable that the respondent was impaired at the very time the test was taken. Moreover, the certificate produced before the magistrate and which was available to him as admissible evidence in determining the question of the validity of the service showed that that person had an alcohol count of .18. The alcohol count necessary as a basis for the offence set out in s. 236 is only .08 so that the accused had two and a half times the amount of alcohol in his blood which would justify an offence under the section. Under these circumstances, the learned magistrate came to the conclusion that “at the time this service was accomplished, the respondent was, according to the evidence, ‘intoxicated’ ”. I am ready to assume, as did the Chief Justice of Nova Scotia in giving the reasons of the Appeals Division, that the respondent was too drunk to understand and appreciate the nature of the document then put into his possession. The magistrate, therefore, was entitled to determine that the service of the notice provided for in s. 237(1)(f) was not reasonable under the provisions of s. 237(5). Therefore, upon this ground alone, I would dismiss the appeal.

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There is another ground which I do not find was considered in the judgments below. As pointed out in the stated case, the constable who had performed the breathalizer test, upon obtaining the result thereof, had immediately, in the police station, delivered a copy of the certificate of the analysis and a notice under the provisions of s. 237(1)(f) to the person who was tested. Section 237(5) provides:

… unless the party intending to produce it has, before the trial, given to the accused reasonable notice of his intention together with a copy of the certificate.

At the time the constable delivered to the person whom he had tested a copy of the certificate and the notice there was no accused. No information had been laid, and no person is an “accused” until an information has been laid. Moreover, the words “before the trial”, in my view, imply that the service of this document must be taken only when there is a trial in contemplation. After the test had been made, it can neither be said that the person presently charged was an accused nor that there was any trial in contemplation. It might well have been that for a variety of reasons the constable’s superior or the Crown counsel would have determined that the person who had been tested should not be charged and, therefore, the provisions of the section simply do not apply to the person in the situation of this accused on that night in the police station. This might appear to be a strict construction of the provisions of the Code but it must be remembered that the provisions of s. 237, particularly subs. (1)(f) thereof, enable the Crown to short-circuit the proof of the major element of the offence by the production of a mere certificate and that, therefore, such provision should be strictly construed.

I realize that an opposite result was reached in R. v. Goerz[2], but in that case the accused gave evidence as he admitted having received the notice. I do not think the Crown is entitled to rely upon

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the defence to prove the admissibility of the document whereby it attempts to short-circuit the ordinary method of proof. In the present case, there is no reference in the stated case to the accused having given evidence and I am of the view that the Crown had simply failed to prove the admissibility of the certificate as a basis for the conviction of the charge under s. 236. If R. v. Goerz is, despite the different circumstances, applicable, I am not prepared to follow it.

For these reasons, I would dismiss the appeal.

Appeal allowed, LASKIN C.J. and SPENCE and DICKSON JJ. dissenting.

Solicitor for the appellant: Graham W. Stewart, Halifax.

Solicitors for the respondent: Stewart, McKeen & Covert, Halifax.