Appellant acquitted of driving with illegal blood alcohol limit after trial and convicted on summary conviction appeal (SCA) sought leave to appeal the conviction. Issue at trial was whether the viva voce evidence of the qualified breath technician could satisfy the requirement in s 320.31 CC that the alcohol standard be certified by an analyst. Trial Judge held the hearsay evidence was not sufficient. SCA Judge disagreed, holding that the section did not require Crown to tender a Certificate of Analyst and the viva voce evidence of a qualified technician or a certificate indicating the alcohol standard was certified by an analyst was sufficient.
Held: Leave to appeal granted.
Despite numerous decisions on this issue in various jurisdictions since the 2018 amendments to the Code on impaired driving, no appellate court has considered it. The Court noted that the “sheer number of decisions addressing the interpretation of s 320.31(1)(a) that have come out since the section came into force less than a year ago establishes that this matter has public importance beyond the limited confines of this case.”
K. Beyak – Defence Counsel