Trial on a charge of driving ‘over 80’ under s. 253(1)(B) CC. Issues of whether the former presumption of identity under s. 258 CC continues to apply in a transitional case where the offence precedes the Bill C-46 amendments but the trial is held after; and whether the Crown could rely on the s. 320.31 CC presumption of accuracy.
Per McAlorum, 2019 ONCJ 259, the old presumption of identity applies in transitional cases. The Interpretation Act, s. 43, preserves the former presumption in the absence of express statutory intent. Requiring expert toxicological evidence in all transition cases would be an absurd result. There is no requirement for the Crown to tender the Certificate of Analyst in respect of the alcohol standard or call the analyst who so certified the standard to rely on the presumption of accuracy. It is sufficient that the qualified technician testifies that the alcohol standard was certified by an analyst to engage the presumption of accuracy under s. 320.31.
S. Smith – Defence Counsel