Trial on impaired driving and ‘over 80’ charges. The Crown did not tender a Certificate of Analyst or Qualified Technician; rather, the Crown adduced the machine test sheet and the technician gave viva voce testimony. Issue of whether this met the requirements of s. 320.31 CC so as to trigger the presumption of accuracy.

Held: Acquittal.

Court reviewed conflicting lines of authority as to whether the Crown can prove the certification by an analyst requirement in s. 320.31 CC without tendering a certificate of analyst or viva voce testimony from the analyst. The reasoning in Flores-Vigil, 2019 ONCJ 192 (holding that offering the analyst’s certification through the qualified technician would be impermissible hearsay) was “persuasive”. “In this case … by any measure, the evidence falls short. Simply stating generically that an analyst certifies the standard and stating that the certificates are posted on the wall does not engage the presumption.”

T. Dunlap – Defence Counsel