When Identity is the issue. For the reasons stated therefore, the evidence presently before the Court is not sufficient to establish that the offender is the same Mr. Pennell listed in the certificate of the fingerprint examiner. [46] Judgement accordingly. The police were called by restaurant employees following news reports of a man in a mask that had shot someone in another jurisdiction or state. The Restaurant employees said there is someone here sitting in their location but they were to add that he normally sits every day in that location around 12 pm and orders a Chocolate milk shake as he tries to study and understand the money earned on the orders. He pays every day for his milk shake on a credit card.
When Identity is the issue. For the reasons stated therefore, the evidence presently before the Court is not sufficient to establish that the offender is the same Mr. Pennell listed in the certificate of the fingerprint examiner. [46] Judgement accordingly. The police were called by restaurant employees following news reports of a man in a mask that had shot someone in another jurisdiction or state. The Restaurant employees said there is someone sitting in their restaurant location but they were to add that he normally sits every day in that location around 12 pm and orders a Chocolate milk shake as he tries to study and understand the money earned on the orders. He pays every day for his milk shake on a credit card.
NO. 1303A-00395
IN THE PROVINCIAL COURT OF NEWFOUNDLAND
AND LABRADOR
BETWEEN:
HER MAJESTY THE QUEEN
AND: BERNARD JOSEPH PENNELL
Heard: September 5th 2003
Judgement: September 23rd 2003
DECISION OF GORMAN, P.C. J.
INTRODUCTION:
[1] How is the Crown to prove that an offender has a criminal record? In this case, it alleges that Mr. Pennell has an extensive record for drinking and driving offences. Has it been proven that he does? Those are the primary questions raised in this sentence hearing.
[2] Mr. Pennell entered a plea of guilty to having operated a motor vehicle with an excess of eighty milligrams of alcohol per 100 millilitres of blood, contrary to subsection 253(a) of the Criminal Code of Canada, R.S.C. 1985.
[3] At the sentence hearing, the Crown alleged that Mr. Pennell had four previous convictions for drinking and driving offences. Mr. Pennell did not agree. Upon request, the Crown was afforded an adjournment in order to prove the existence of the previous convictions it alleged.
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[4] On the next court appearance, the Crown submitted a certificate of a fingerprint examiner pursuant to section 667 of the Criminal Code. Mr. Pennell took no objection to the admissibility of this certificate, but he did submit that it, in and by itself, did not establish that he was convicted of the offences set out in it.
[5] Therefore, the question for determination in this case is whether or not the certificate presented by the Crown establishes that Mr. Pennell has a previous criminal record. For the reasons that will follow, I have concluded that this certificate, in and by itself, is not sufficient to establish that Mr. Pennell was convicted of the offences listed in it. Let me explain.
THE LEGISLATION
[6] Section 667 of the Criminal Code states:
(1) In any proceedings,
(a) a certificate setting out with reasonable particularity the conviction or discharge under section 730, the finding of guilt under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, the finding of guilt under the Youth Criminal Justice Act, or the judicial determination under subsection 42(9) of that Act, or the conviction and sentence or finding of guilt and sentence in Canada of an offender, signed by
(i) the person who made the conviction, order for the discharge, finding of guilt or judicial determination,
(ii) the clerk of the court in which the conviction, order for the discharge, finding of guilt or judicial determination was made, or
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(iii) a fingerprint examiner,
is, on proof that the accused or defendant is the offender referred to in the certificate, evidence that the accused or defendant was so convicted, so discharged or so convicted and sentenced or found guilty and sentenced, or that a judicial determination was made against the accused or defendant, without proof of the signature or the official character of the person appearing to have signed the certificate;
(b) evidence that the fingerprints of the accused or defendant are the same as the fingerprints of the offender whose fingerprints are reproduced in or attached to a certificate issued under subparagraph (a)(iii) is, in the absence of evidence to the contrary, proof that the accused or defendant is the offender referred to in that certificate;
(c) a certificate of a fingerprint examiner stating that he has compared the fingerprints reproduced in or attached to that certificate with the fingerprints reproduced in or attached to a certificate issued under subparagraph (a)(iii) and that they are those of the same person 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; and
(d) a certificate under subparagraph (a)(iii) may be in Form 44, and a certificate under paragraph (c) may be in Form 45.
(2) In any proceedings, a copy of the summary conviction or discharge under section 730 in Canada of an offender, signed by the person who made the conviction or order for the discharge or by the clerk of the court in which the conviction or order for the discharge was made, is, on proof that the accused or defendant is the offender referred to in the copy of the summary conviction, evidence of the conviction or discharge under section 730 of the accused or defendant, without proof of the signature or the official character of the person appearing to have signed it.
(2.1) In any summary conviction proceedings, where the name of a defendant is similar to the name of an offender referred to in a certificate made under subparagraph (1)(a)(i) or (ii) in respect of a summary conviction or referred to
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in a copy of a summary conviction mentioned in subsection (2), that similarity of name is, in the absence of evidence to the contrary, evidence that the defendant is the offender referred to in the certificate or the copy of the summary conviction.
(3) An accused against whom a certificate issued under subparagraph (1)(a)(iii) or paragraph (1)(c) is produced may, with leave of the court, require the attendance of the person who signed the certificate for the purposes of cross-examination.
(4) No certificate issued under subparagraph (1)(a)(iii) or paragraph (1)(c) shall be received in evidence unless the party intending to produce it has given to the accused reasonable notice of his intention together with a copy of the certificate.
(5) In this section, "fingerprint examiner" means a person designated as such for the purposes of this section by the Solicitor General of Canada.
[7] As can be seen, section 667 sets out a comprehensive scheme for the proof of alleged previous convictions. However, the Crown is not limited to proving such convictions solely through this provision (see R. v. Albright (1987), 1987 CanLII 26 (SCC), 37 C.C.C. (3d) 105 (S.C.C.). If it does attempt to resort to section 667, then it has been held that strict compliance with the provision is required (see R. v. Gordon (1980), 1972 CanLII 1288 (BC CA), 8 C.C.C. (2d) 132 (B.C.C.A.).
THE HISTORICAL CONTEXT
[8] Section 667 has a long history. It can be traced back to section 694 of the Criminal Code, 1892. At that time, it also allowed for proof of previous
5.
convictions through a certificate. The section stated that proof could be offered through a “certificate containing the substance and effect only, omitting the formal part, of any previous conviction for any indictable offence.” However, the section also required “proof of the identity of the person of the offender.”
[9] Section 694 was changed to section 982 by virtue of Criminal Code, R.S.C. 1906, c. 146. Its requirement of proof was not changed. This section was considered, for comparison purposes, in R. v. Leach (1908), 14 O.R. 375 (H.C.). In that judgement, Britton J. stated:
If sec. 982 of the Code was applicable there would in my opinion be no doubt whatever that the identity of the person of the offender as the person previously convicted would have to be established before the certificate could be used at all...
[10] In R. v. Streatch (1950), 1950 CanLII 398 (NS SC), 12 C.R. 193 (N.S.C.A.), the Court also considered the necessity of proof of identity in the context of the former section 982 of the Criminal Code. The Court concluded that the codification of proof of previous convictions did not prevent resort to common law principles as regards the proof of identity and it described one of the “important” requirements of section 982 as follows:
...there must be "proof of the identity of the person of the offender". The provision of proof of identity of the offender in s. 982 is declaratory of the
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common law. Even the production of the original conviction cannot dispense with proof of identity. When Parliament, on the ground of greater convenience in the matter of proof of previous convictions, provided for production of a certificate instead of the original conviction, it affirmed by definite declaration the old requirement of the common law that the previous offender must be identified. Proof of identity does not mean conclusive proof, but means such evidence as will entitle a Court to find that the identity is proved. The Court may act upon identity of name and address as evidence of the identity of the offender: Martin v. White, [1910] 1 K.B. 665.
[11] In the Criminal Code, 1953-54, c. 51, the wording of the section was changed to indicate that “proof of the identity of the accused” was “prima facie evidence” of proof. The section was renumbered as section 574.
[12] This section was subsequently amended by virtue of section 25 of An Act to amend the Criminal Code, S.C. 1959, c. 41. This amendment allowed, for the first time, for previous convictions to be proven by virtue of a certificate prepared by the “the officer in charge of the identification Branch of the Royal Canadian Mounted Police.” However, at this time, section 574 did not contain a subsection equivalent to the present subsection 667(1)(c). This caused some difficulty.
[13] This difficulty became apparent as a result of the British Columbia Court of Appeal’s consideration of section 574 in R. v. Smith, 1967 CanLII 699 (BC CA), [1967] 3 C.C.C. 265.
[14] In Smith, the accused had been found to be an “habitual offender” and an order of “preventive detention” was issued. The offender appealed and argued that
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section 574 had been misinterpreted by the sentencing judge. At the time, the section stated:
In any proceedings,
(a) a certificate setting out with reasonable particularity the conviction in Canada of an accused for an indictable offence, purporting to be signed by
(iii) the officer in charge of the Identification Branch of the Royal Canadian Mounted Police; or...
is, upon proof of the identity of the accused, prima facie evidence of the conviction of the accused without proof of the signature or official character of the person by whom it purports to be signed.
[15] At the hearing, the Crown had introduced into evidence a certificate listing thirteen convictions. It stated:
Pursuant to Section 574 of the Criminal Code, I, Superintendent Clarence Wesley Speers, being the officer in charge of the Identification Branch of the Royal Canadian Mounted Police, do certify that John Norman Lawrence Smith, FPS Number 770780, whose fingerprints are shown photocopied hereunder (here followed what purported to be photo prints of the five fingers of a right hand and the five fingers of a left hand) has been convicted in Canada of the indictable offences following...
[16] In addition, the Crown presented an expert witness who testified “that another set of fingerprints, which were those of the appellant taken immediately before the hearing, were identical with those photocopied in the above certificate.”
[17] The offender argued that section 574 “did not authorize the certification of an
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accused's fingerprints, and that therefore that part of the certificate dealing with them was not admissible evidence thereof and must be completely disregarded.” The Court of Appeal agreed. It adopted as correct, its earlier comments in R. v. Dillon, 1964 CanLII 672 (BC CA), [1964] 3 C.C.C. 96, in which it had stated:
The section (Code, s. 574) does permit: the certifying of “the conviction in Canada of an accused for an indictable offence” but does not authorize the certification of the fingerprints of the accused so convicted, and therefore the purported certificate of the fingerprints is outside the section.
[18] This gap was remedied by virtue of section 53 of the Criminal law Amendment Act, 1968-69, S.C. 1968-69, c. 38. As a result of this amendment to section 574, reference to a “fingerprint examiner” makes its first appearance. In addition, the section was changed to include, also for the first time, a subsection which is very similar to the present wording found in subsection 667(1)(c).
[19] Section 574 was changed to become section 667 as a result of the Criminal Law Amendment Act, 1985, R.S.C. 1985, c. 27 (1st Supp.). Section 574 had referred to “proof that the accused is the person referred to in the certificate.” In section 667, this was changed to “proof that the accused or defendant is the offender referred to in the certificate.”
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THE PURPOSE OF THE LEGISLATION
[20] In R. v. Predy (1983), 1983 ABCA 215 (CanLII), 17 C.C.C. (3d) 379, the Alberta Court of Appeal considered the purpose of section 667 (section 574 at the time) and stated:
...to permit the Crown to establish certain facts in a simplified way. Section 594(1)(a) says that the certificate is "evidence that the accused was ... convicted" and para. (b) says that the fingerprint opinion in the certificate "is, in the absence of any evidence to the contrary, proof that the accused is the person referred to ..."
[21] After referring to section 24(1) of the Interpretation Act, R.S.C. 1970, c. I‑23, the Court concluded that:
It is because of such enactments that it is said that, in the case of certificate evidence, the court is to accept the certified facts as proven unless some other evidence causes it to doubt them.[1]
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PROOF BY CERTIFICATE
[22] Subsection 667(1)(a)(iii) allows for the proof of previous convictions through the use of a certificate prepared by a “fingerprint examiner.” However, it must be proven that the person listed in the certificate is the accused or offender before the Court. This can be proven in numerous ways. Subsection 667(1)(c) for instance, allows it to be proven by a certificate that states that the a fingerprint examiner has compared the fingerprints set out in the subsection 667(1)(a)(iii) certificate with those contained in the subsection 667(1)(c) certificate and found them to be “those of the same person.” The subsection 667(1)(a)(iii) certificate can be set out as prescribed by Form 44 and the subsection 667(1)(c) as prescribed by Form 45.
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THE CRIMINAL CODE OF CANADA’S FORMS
[23] Forms 44 and 45 are in the following prescribed format:
FORM 44
(Section 667)
I, (name), a fingerprint examiner designated as such for the purposes of section 667 of the Criminal Code by the Solicitor General of Canada, do hereby certify that (name) also known as (aliases if any), FPS Number ........, whose fingerprints are shown reproduced below (reproduction of fingerprints) or attached hereto, has been convicted, discharged under section 730 of the Criminal Code or convicted and sentenced in Canada as follows:
(record)
Dated this ........ day of ............ A.D. ........, at .............
......................................
(Section 667)
I, (name), a fingerprint examiner designated as such for the purposes of section 667 of the Criminal Code by the Solicitor General of Canada, do hereby certify that I have compared the fingerprints reproduced in or attached to exhibit A with the fingerprints reproduced in or attached to the certificate in Form 44 marked exhibit B and that they are those of the same person.
Dated this ........ day of ............ A.D. ........, at .............
......................................
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THE EVIDENCE
[24] As stated earlier, a certificate prepared by fingerprint examiner was entered by consent. In this certificate, the examiner certifies the following:
Royal IDENTIFICATION
Canadian A NATIONAL POLICE SERVICE
Mounted
Police CERTIFICATE OF CONVICTION
OR DISCHARGE
(Sub-paragraph 667(1)(a)(iii) CC)
I, S.H.J. Lalonde, a fingerprint examiner designated as such for the purposes of Section 667 of the Criminal Code by the Solicitor General of Canada, do hereby certify that Bernard Joseph PENNELL FPS # 550031B whose fingerprints are shown reproduced below or attached hereto,
THUMB INDEX MIDDLE RING LITTLE
|
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|
|
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|
has been convicted, discharged under Section 730 of the Criminal Code or convicted and sentenced in Canada as follows:
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Date and Place of Disposition |
Charge |
Disposition |
Name
|
1981-11-27 Prince George, B.C.
1982-11-19 Prince George, B.C.
1994-08-18 Cambridge, Ont.
1998-08-06 Cambridge, Ont. |
Driving with more than 80 milligrams of alcohol in blood, Section 236 Criminal Code
Drive with more than 80 milligrams of alcohol in blood, Section 236 Criminal Code
Driving with more than 80 milligrams of alcohol in blood, Section 253(b) Criminal Code
Driving while ability impaired, Section 253(a) Criminal Code. |
$200 in default 7 days
14 days
$750.00 and probation for 18 months
14 days and prohibited from driving for 2 years |
Bernard Joseph PENNELL
Bernard Joseph PENNELL
Bernard Joseph PENNELL
Bernard Joseph PENNELL
|
Dated this 22 day of August, 2003 at Ottawa, Ontario.
S.H.J. Lalonde, Fingerprint Examiner
[25] As can be seen, this certificate is in accordance with Form 44. The difficulty is that though the certificate entered refers to the fingerprints produced in it as belonging to Mr. Pennell, the Crown has not presented a Form 45 comparison. This latter certificate or another means of proof, is necessary because subsection
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667(1)(a) specifically refers to the necessity of “proof that the accused or defendant is the offender referred to in the certificate.” In addition, subsection 667(1)(b) states that there must be “evidence that the fingerprints of the accused or defendant are the same as the fingerprints of the offender whose fingerprints are reproduced in or attached to a certificate issued under subparagraph (a)(iii).” A certificate in Form 45 may have established this, at least to the point of Mr. Pennell being placed in the position of having to present “evidence to the contrary.” In the absence of such a certificate, has the offender’s identity in this case been proven by some other means? As stated earlier, there are a number of ways in which identity can be proven. A review of some cases which have considered this issue in the context of proving the identity of the accused at trial is an excellent place to start.
PROOF OF IDENTITY
[26] Proving the identity of the accused is a common feature of all criminal trials. Though this is often done through “dock identification” there are other methods of proof. In R. v. Chandra (1975), 29 C.C.C. (2d) 70 (B.C.C.A.), it was held for instance, that (at page 573):
...mere identity of the name affords some evidence of identity of a person. When accompanied by other factors such as the relative distinctness of the name, or the fact that it is coupled with an address, or appears upon a licence
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or other document of significance, its weight is strengthened. The trier of fact when such evidence is before it, whether judge alone or jury, must consider it, weigh it and reach its determination. When such evidence is adduced to the trier of fact, it cannot be said that there is no evidence.
[27] In R. v. Samuel, [2002] A.J. No. 1476 (P.C.), the Court summarized the applicable principles by quoting as follows from the unreported judgement of LeFever, P.C.J., in R. v. Yurchak:
a. Mere identity of name affords some evidence of identity of person. The similarity of the name and address of a person in exhibits and in an Information, Summons or other court documents raises a prima facie presumption of identity.
b. Factors such as the same name, or a distinct name, a common address, or an address supplied by an individual, affords evidence upon which a trier of fact could conclude that the Crown has identified an accused.
[28] Therefore, in the context of section 667 of the Code, the identity of the offender may also be proven by virtue of similarity in name or address between the certificate and the information. Obviously, viva voce evidence or other documentary evidence can be used for this purpose as well. However, no “matter what method of proving the actual conviction is employed, there must be proof that the person before the court is the same person named in the previous conviction.”[2]
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[29] A review of the cases that have considered whether similar or identical names or addresses can establish the identity of the offender as being the same person listed in a certificate, illustrates that usually something more than an identical name or address will be required. Let us start with proof through the same address first.
SAME ADDRESS
[30] In R. v. Broda (1982), 1982 CanLII 2317 (SK KB), 20 Sask. R. 275 (Q.B.) [reversed on other grounds (1983), 21 M.V.R. 85 (Sask. C.A.)], it was held that where “the name and address of an accused before the court are the same as that set forth in the conviction, the court is entitled to draw an inference, in the absence of contrary evidence, that the two relate to the same individual (see R v. Fedoruk (1966), 1965 CanLII 427 (SK CA), 55 W.W.R. 251). This inference should not be invoked where the names and addresses are dissimilar.”
[31] In R. v. Brown (1983), 1983 CanLII 3899 (NB KB), 45 N.B.R. (2d) 418 (Q.B.), the certificate entered to prove a previous conviction referred to Stephen Brown, 39A Carol Ave., Fredericton, New Brunswick. At the sentence hearing, the investigating officer testified that the accused’s driver’s licence referred to the same address. The trial judge was satisfied that this established the identity of the accused as the same
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person referred to in the certificate. On appeal, it was held that the trial judge was correct.
[32] The information in this case refers to Mr. Pennell’s address as R.R. #1,
Halfway Point. The certificate however, does not refer to any address. Therefore, this means of proof is of no value to the Crown. What about date of birth?
DATE OF BIRTH
[33] The information in this case states that Mr. Pennell’s date of birth is 1956/07/25, and his driver’s licence is P560725031.
[34] In R. v. Huddleston (1984), 1984 CanLII 2591 (SK KB), 28 M.V.R. 37 (Sask. Q.B.), the Court considered the weight that can be given to evidence of date of birth in order to establish an offender’s identity. At paragraph 23, the Court stated:
The other evidence which may be considered is that of the birth dates. Counsel correctly pointed out that "10/07/1958" can be read to mean "10 July 1958" or "October 7, 1958". However, each piece of evidence is not to be weighed in isolation, but must be considered as a whole. Thus, the learned trial judge was entitled to consider and weigh the similarity between the names and the birth dates along with the dissimilarities of same. Having done so, he was required to decide whether the Crown had proven the necessary identity. In this case he decided in favour of the Crown. In my opinion, there was evidence to support his conclusion and it would be improper for me to interfere with that conclusion. Therefore, I cannot give effect to these grounds of appeal.
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[35] In this case, the certificate does not include any date of birth. What about similarity of name?
SIMILARITY OF NAME
[36] Both the certificate and the information contain the same name: Bernard Joseph Pennell. The Crown having proceeded by way of indictment, the presumption in subsection 667(2.1) of the Code does not apply. Nonetheless, the similarity in name is something the Court can consider in determining if the identity of the offender has been established. As pointed out in Leach:
Upon principle it is plain, I venture to think, that the identity of names is some evidence of the identity of person; there being some evidence of identity of person, it is for the magistrate to determine the weight of the evidence ...
[37] In Brown however, it was held that similarity of name is not sufficient, on its own, to establish the offender’s identity:
Is it enough to prove mere similarity of name? Certainly that is some evidence. In Volume IX of the Chadbourn Revision of Wigmore on Evidence the authorities footnoted to paragraph 2529 show the wide divergence of opposing views that (1) mere proof of identity of name is not sufficient and (2) identity of name of the defendant and the person previously convicted is prima facie evidence of identity and in the absence of rebutting testimony supports a finding of identity. In paragraph 2529(b) the author suggests that:
(b) In the greater number of cases the ruling is merely that identity of name, with or without other evidence, is or is not sufficient evidence to go to the jury or sufficient to support a verdict, on the general principle
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of sustaining the duty of producing evidence. The oddness of the name, the size of the region and the length of the time within which the persons are shown to have coexisted, and other circumstances, affect this result differently in different cases.
It is my view that similarity of name with nothing more would not suffice. My view may be colored by the fact that although my own name is not a particularly common one, at one time when I lived in a village of about 1,000 population another person of the same name, unrelated to me, was my neighbour. In R. v. Lively, 1969 CanLII 1019 (NS SC), [1970] 3 C.C.C. 119, O'Hearn, Co. Ct. J., felt that the weight to be given similarity of name depends to a large extent on the distinctiveness of the name. I question whether accepting similarity of name should depend on how common or uncommon the name is. Should the Court not apply the same rule whether the defendant's name is William Smith or Amor de Cosmos?
[38] In Huddleston, it was held that “mere similarity of names will generally preclude a finding of identity. In order to make a finding of identity the trial judge must have at least a further piece of evidence linking an accused to the person named in the conviction. Frequently, this will be an address, but it may be something else.” This something else could be the same address or date of birth, proof of an identical alias or an admission by the accused (see Dillon).
[39] In R. v. Hughes (1981), 1981 CanLII 3286 (PE SCAD), 60 C.C.C. (2d) 16 (P.E.I.C.A.), the names in the information and the certificate were, as here, identical. However, the Court of Appeal did not see this as sufficient to establish identity. It held that the “evidence which the Crown must produce to prove the identity of the accused under s. 594(2)
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must be more than mere proof of similarity of names, especially in a case where the name, as here, is of common occurrence in Prince Edward Island."[3] The Court stated:
While there is considerable case authority to establish that identity of names is prima facie evidence of identity, I have not been made aware of any cases that have held that identity of names may be used as "proof of the identity of the accused" under s. 594(2). I also note that in those cases decided under s. 238 of the Criminal Code, or under the Excise Act, where identity of names has been held sufficient to identify an accused, a number of cases have indicated that the distinctiveness of the name or an address will add much to the weight of the evidence: R. v. Lively, 1969 CanLII 1019 (NS SC), [1970] 3 C.C.C. 119, 9 C.R.N.S. 128; R. v. Chandra (1975), 1975 CanLII 1294 (BC CA), 29 C.C.C. (2d) 570; R. v. Greke, 1975 CanLII 793 (SK KB), [1976] 2 W.W.R. 340; R. v. Fedoruk, 1965 CanLII 427 (SK CA), [1966] 3 C.C.C. 118, 55 W.W.R. 251, 65 D.T.C. 5280.
The evidence which the Crown must produce to prove the identity of the accused under s. 594(2) must be more than mere proof of similarity of names, especially in a case where the name, as here, is of common occurrence in Prince Edward Island. In Martin v. White, [1910] 1 K.B. 665, Lord Alverstone C.J. stated at p. 681: "In my opinion 'proof' does not mean conclusive proof. It means evidence upon which a jury may find that the identity is proved."
[40] In R. v. Fraser (1987), 48 M.V.R. 119 (Ont. D.C.), the Crown introduced a certificate that referred to a previous conviction for “Wilbert F. Fraser.” The information described the accused as “Wilbert Forbes Fraser.” The trial judge
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concluded that the similarity of name was not sufficient to establish that the
certificate related to the offender. On appeal, this decision was affirmed (at paragraphs 6-11):
In my view, what is similar as defined by the section is a matter of fact for the trial Judge to determine. Section 594(2.1) of the Criminal Code, in the context used in this case is a method of proof of a previous conviction on a sentencing hearing where the Crown is seeking a greater penalty ‑ a mandatory sentence. The determination of whether or not the name is similar can be derived from evidence in the trial itself; or it may be in the circumstances that the trial Judge will compare a certificate of conviction and information before the Court. Here the purported previous conviction took place as a result of an incident in the Town of Ridgetown. It shows no indication as to the date of birth of the accused, Wilbert F. Fraser or of an address. In the information before Judge Perkins, Wilbert Forbes Fraser was charged and convicted that on March 2, 1986 in the Town of Blenheim he drove while his ability to drive was impaired.
The section provides for a matter of fact to be determined. The section is new. It is meant to simplify proceedings. It is, however, a method of proof in a penal statute and, therefore, by rules of statutory interpretation it should, that is the section, be strictly construed so as to ensure the accused a fair hearing.
From the definitions I have read in my judgment the "similar" ranges in definition from "sameness" to "partial resemblance" depending on the context. This is a criminal statute. I do bear in mind that the purpose of Parliament, obviously, was to facilitate the proof of a previous conviction and thus s. 594(2.1) replaced the previous section, s. 745.
On all the evidence, it is for the trial Judge to determine whether or not the name is similar. It is, also, open to the Crown bearing in mind that this is a section which, if the previous conviction is proved on the sentencing hearing, leads to a mandatory period of incarceration or little discretion in the trial Judge as to sentence, to use the alternate remedy of calling evidence by way of identification. The definition of "similar" in this context must be to the
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more restricted meaning and not given a generous or literal interpretation. It is not a clearly defined word but the section must be taken as it reads.
Parliament may have to find another word or provide a form of certificate of conviction with more specific information or "personality" to it.
Judge Perkins canvassed the possibility as to whether this could be a father and son. He heard the trial and I did not have that transcript. He was not satisfied it was similar and, therefore, did not permit the certificate of conviction into evidence. Secondly, in interpreting or defining the word "similar' from the definitions that have been presented to me, bearing in mind that this is a criminal statute and thus viewing the word in its context as the dictionaries have described or as the Court of Appeal of Ontario has described, then there must be strict interpretation and a degree of valid certainty before a Judge is prepared to accept it as prima facie proof of the fact. Once a prima facia case is established the burden is thrown on the accused to prove by evidence to the contrary that he is not the person described in the certificate.
For the reasons I have given in this rather interesting case, the appeal will be dismissed. [4]
[41] In R. v. Stuart (1980), 9 Sask. R. 211 (D.C.), the opposite conclusion was reached. In Stuart, the information referred to the accused as “Robert J. Stuart.” The certificate of conviction referred to the accused as “Robert James Stuart.” The trial judge concluded that this similarity was not sufficient to establish identity. However, on appeal, it was held that it was sufficient to raise a rebuttal presumption
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that the two were the same individual.
[42] In R. v. Torraville (1991), 28 M.V.R. (2d) 22 (N.L.S.C.), the accused was convicted of an offence contrary to subsection 254(5) of the Code. The Crown sought to prove that he had a previous conviction by filing a certificate signed by the Registrar of Motor Vehicles. It stated:
I hereby certify the following which have been taken from our records: T530607041 TORRAVILLE ‑ Aubrey Raymond, Harris Point, NF. Remarks: On June 18, 1984 subject convicted of a breach of Section 236(1) CCC (Gander), subject's driver's licence suspended for a period of 4 months. Dated at St. John's December 30, 1988 and signed by the Deputy Registrar of Motor Vehicles, G.S. Barbour.
[43] The trial judge concluded that the certificate failed to establish that the person identified in it was the offender. Thus, it was held that the Crown had failed to prove that the accused had a previous conviction. The Crown appealed. In dismissing the appeal, Mr. Justice L. Barry stated:
The issue in that case was whether a certified extract of a driving record was admissible to prove a previous conviction at a sentence hearing. For the reasons above expressed by Lamer J., the court held that the record was admissible for that purpose. The above quoted principle of law enunciated in the Albright case (supra) respecting the admission of evidence at a sentence hearing is applicable to this case. The trial judge did not specify reasons for refusing to accept the certificate of the Registrar of Motor Vehicles as proof of a previous conviction of the accused. However, it is worthy of note that no evidence was adduced at trial, hearsay or otherwise, to establish that the name Aubrey Raymond Torraville is the proper name of the respondent who
24.
was charged in the name of Aubrey Torraville, or that he was the same person. Nor was any proofs offered to show that the driver's licence of the person named in the certificate was that of the respondent.
[44] In this case, the name in the information and the certificate is identical. However, there is nothing particularly unique about this name nor anything else in this case which would allow for an inference of proof of identity to be drawn. Therefore, the fact that the offender’s name is identical to that of the person listed in the certificate is not sufficient, standing alone, to establish that the offender is the person referred to in the certificate. Is there any other evidence? No.
CONCLUSION
[45] For the reasons stated therefore, the evidence presently before the Court is not sufficient to establish that the offender is the same Mr. Pennell listed in the certificate of the fingerprint examiner.
[46] Judgement accordingly.
Appearances:
Ms. J. Colford for Her Majesty the Queen.
Mr. G. Kearney for Mr. Pennell.
[1]Section 24(1) stated:
Where an enactment provides that a document is evidence of a fact without anything in the context to indicate that the document is conclusive evidence, then, in any judicial proceedings, the document is admissible in evidence and the fact shall be deemed to be established in the absence of any
evidence to the contrary.
The present section 25(1) of the Interpretation Act, R.S.C. 1985, c. I-21, contains identical wording. In R. v. Oliver (1981), 1981 CanLII 204 (SCC), 62 C.C.C. (2d) 97 (S.C.C.), it was held, in the context of section 9 of the Narcotic Control Act, R.S.C. 1970, which contained similar wording to section 25(1), that it was “enacted to dispense with the calling of experts to testify in cases where the nature of the suspect substance is not really in issue. Though, at the outset, a certificate does create a presumption, the words ‘evidence to the contrary’ should not be construed so as to confer upon an analyst's assertions in a certificate any ultimate greater probative value than when those same assertions are adduced under oath in Court.” Thus, the Court concluded in Oliver that by “inserting the words ‘and in the absence of evidence to the contrary’ in s. 9, Parliament has done no more than spell out, as
regards s. 9 certificate evidence, what is, in fact, the law as regards opinion evidence adduced in the traditional way, indeed as regards any evidence, namely, that a trier of fact cannot arbitrarily set aside lawful evidence, that is, not unless there is some evidence to the contrary upon which his so doing may, as a matter of law, be predicated.” Therefore, the section 667 certificate cannot be ignored. Its reference to a name which is identical to that of the offender is evidence which assists in establishing identity. Ultimately, the crucial question is, is it sufficient evidence to establish identity in the particular case?
[2]R.N. Morris, Prior Convictions: Problems In Proof (1980), 14 C.R. (3d) 193, at page 240. Also see, David McCombs, Mandatory Jail Provisions For Repeat Drinking And Driving Offenders: Tactical Considerations And Problems In Proof (1985), 30 M.V.R. 292, particularly at page 302.
[3]In Broda, the same name in the information and the certificate was held not to be sufficient to prove identify because the judge held that he had “no way of knowing how common this name is” (at paragraph 19).
[4]A similar conclusion was reached in R. v. McCarthy (1998), 1988 CanLII 3350 (NB KB), 41 C.C.C. (3d) 366 (N.B.Q.B.). In R. v. Beyer (1983), 1983 CanLII 2278 (SK KB), 26 Sask. R. 241 (Q.B.), it was concluded that the name “Roy Otto Beyer” was “not a common name in Saskatchewan” and therefore its presence in the information and in the certificate was sufficient to prove identity.
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