Ontario Criminal


Accused did not take opportunity of adjournments to retain expert to give evidence

Accused appealed his convictions for impaired driving and driving over .08 (impaired conviction conditionally stayed). Accused testified to having only drank two beers, and that just before driving he had used asthma medication that was conceded by Crown to contain 34% dehydrated alcohol. Accused submitted that video recording of second breath test, which he claimed would have shown he was sober, was intentionally destroyed. Accused submitted that trial judge erred by failing to find that lack of yearly maintenance established that intoxilyzer was operating improperly. Appeal dismissed. Accused did not take opportunities of adjournments made for that purpose to retain expert to give evidence on his theory asthma medication affected readings. There was no indication either way which party, if any, would be assisted by lost videotape of second breath test, if it had been available. Trial judge made it clear to accused that expert was required: effects of Primatene Mist were not so notoriously known that reasonable person could not dispute it or that it was capable of immediate and accurate demonstration by resorting to readily accessible resources of indisputable accuracy. Qualified expert referred to his manual and indicated that although preventative maintenance inspection should be performed, absence of such inspection did not mean that instrument was either improperly serviced, or that it could not be relied upon to produce accurate and reliable readings of individual’s blood alcohol concentration. He was satisfied that instrument was operating properly and was suitable for use. His opinion was corroborated by two exhibits which indicated that appropriate testing was done.

R. v. Bajwa (May. 6, 2013, Ont. S.C.J., Fragomeni J., File No. SCA(P) 1691/12) 106 W.C.B. (2d) 743.

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