Client charged with impaired driving/over. 08. Evidence of erratic driving observed by off-duty sheriff. Driving involved dwifting within lane, unsignalled lane changes, stopping unexpectedly at intersections when not required to do so. Sheriff called police who arrested client after observing him driving very slowly and weaving between lanes. Smell of liquor and some fumbling of documents observed. Otherwise client appearing normal. After blowing on the breathalyzer client kept in custody at his request.
Held: Acquitted both charges.
Evidence of impaired driving fell just short of proof beyond a reasonable doubt. On over .08 charge breath certificate excluded because serving offer could not confirm that certificate returned to client upon his release after being placed into his personal affects when placed in the cell for the night. Relying upon standard police practice insufficient to establish this fact beyond a reasonable doubt. Court rejected Crown’ authorities that standard of proof should only be balance of probabilities, agreeing instead with the legal authorities submiteed by the Defence which maintain that proof beyond a reasonable doubt remains the required standard of proof for this issue.