Ontario Criminal


Breathalyzer

Proof of blood-alcohol level
Claim of error or malfunction of approved screening device had no air of reality

Accused brought disclosure application at trial for impaired driving and driving “over 80.” Accused sought records concerning history and performance of device used to measure his blood alcohol concentration. Records sought were not subject of first party records disclosure. Records had no association with offence with which accused was charged and were not created or located as part of investigation of accused. Records were not in possession of Crown but generated by and in exclusive control of police service and were thus third party records. Test of “likely relevance” for production of third party record not met. Nothing in routine disclosure provided to accused suggested error or malfunction in administration of breath test. Claim of operator error or instrument malfunction had no air of reality.

R. v. Jackson (Dec. 2, 2015, Ont. C.A., H.S. LaForme J.A., David Watt J.A., and Gloria Epstein J.A., CA C58751, C58754) 128 W.C.B. (2d) 460.

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