The Criminal Code requires the Crown, where it seeks to enter a certificate of analyses of breath samples as evidence at trial, to prove that a copy of the certificate was given to the accused along with notice of the Crown’s intention to rely upon the analyses: Criminal Code, s. 258(7).
Until this decision, R v Redford, 2014 ABCA 336, there were conflicting lines of authority in Alberta as to whether proof of service of the certificate of analyses and the notice of intention to tender that certificate at trial was required to be proven on a balance of probabilities or beyond a reasonable doubt. The three member panel divided on this issue in Redford, delivering majority and minority reasons for judgment reserved.
The majority decision was written by Justice Paperny, who held that the Crown’s obligation is to prove service of the certificate and notice beyond a balance of probabilities, and not on the more onerous standard of beyond a reasonable doubt. Justice Paperny reasoned as follows:
- In general, though the ultimate burden of the Crown is to prove each of the essential elements of an offence and the guilt of the accused beyond a reasonable doubt, the individual pieces of evidence tendered in support of the Crown’s case are to be proven on the balance of probabilities standard.
- Questions of admissibility have also generally been found to be assessed on the lower evidentiary standard.
- Even very incriminating types of evidence which the Crown wishes to tender have been found to be required to be proven to the balance of probabilities standard, such as proof of incriminating post-offence conduct and of similar fact evidence.
- While there are some types of evidence that the Crown must prove beyond a reasonable doubt, specific policy reasons for each of these exceptions exist, and are not present with respect to this procedural obligation to serve a document and notice on the accused.
Though not explicitly raised in the appeal, Justice Paperny also noted that, in Her Ladyship’s view, the trial judge had erred in finding that service had not be proven beyond a reas0nable doubt. It was clear that the accused had, in fact, been given a copy of the certificate of analyses and that the certificate had been explained to the accused. Because the accused when then lodged into custody on unrelated matters, the certificate and notice had then been taken away from the accused and placed with his property. There was no evidence as to whether it was returned to the accused after his release from custody. Justice Paperny concluded that it was not necessary that the accused continue to have control and possession of the certificate and notice after service. Rather, the requirements of section 258(7) were met once the accused had been given the certificate and notice of the Crown’s intention to rely upon the certificate.
In dissent, Justice Hillier argued that where an accused is held in custody, the Crown must establish that the notice of intention and certificate were retained by the accused after his or her release from custody.