Appellant convicted of s 253(1)(b) CC after trial appealed alleging errors, including that Trial Judge failed to find a breach of Charter s 8 and erred in finding the repeal of the “presumption of identity” in s 258(1)(c) CC operated prospectively and not retrospectively. The Charter voir dire at trial centered on whether the breath samples were taken in a reasonable manner.
Held: Appeal allowed.
The Court considered the quality of observations of the officer as “relevant to the question of whether the breath samples were taken in a reasonable manner” and held the Trial Judge’s finding that “the Appellant was observed ‘the whole time’ cannot, without more, amount to a conclusion that the breath samples were taken in a reasonable manner, particularly where there was evidence that there were limitations as to the quality of the observations.” On presumption of identity, the Court concluded “the repeal of the ‘presumption of identity’ in ss 258(1)(c) and 258(1)(d.1) operates prospectively” and “for the remaining s 253(1)(b) cases, the Crown may rely on the ‘presumption of identity’.”
S. Gunn Emery & S. Smith – Defence Counsel