Without use of presumptions, charge of driving with excessive alcohol should have been dismissed

Criminal Law - Offences Against the Person and Reputation - Driving/Care Or Control with Excessive Alcohol [Over 80]

Police officer was able to detect odour of alcoholic beverage coming from accused’s breath, after he had stopped accused for speeding. Two Intoxilyzer tests showed results of 200 and 180 milligrams of alcohol in 100 milliliters of his blood. Trial judge convicted accused of driving with excessive alcohol. Judge found no evidence of breath demand but held that accused did not object to admissibility of certificate in timely manner as he did not do so until after Crown closed case. Had objection been raised earlier, Crown could have asked officer more questions that may have cured deficiency. Accused appealed. Appeal allowed. Accused was acquitted of driving with excessive alcohol. There was no direct evidence of breath demand and circumstantial evidence was insufficient to satisfy “pursuant to s. 254(3) of Criminal Code demand” in presumptions. Judge misconstrued legal issue raised by absence of evidence of breath demand and erred in relying on failure to object. Without evidence of breath demand, although certificate remained admissible, presumptions of identity and of accuracy in ss. 258(1)(c) and (g) of Code were not available. No objection from accused was necessary. Without presumptions or calling breathalyzer technician and toxicologist, Crown could not prove accused's blood alcohol level or relate it to time of driving. Without use of presumptions, charge of driving with excessive alcohol should have been dismissed as there was no admissible evidence of breath readings and actus reus could not be proved.

R. v. Hamel (2019), 2019 CarswellOnt 4057, 2019 ONSC 1752, D.E. Harris J. (Ont. S.C.J.); reversed (2018), 2018 CarswellOnt 6889, 2018 ONCJ 279, D.A. Harris J. (Ont. C.J.).

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