The Crown appealed a Summary Conviction Appeal Court decision that overturned the accused's convictions for impaired driving and operating a motor vehicle with a prohibited blood alcohol concentration.
The appeal judge had found that the Crown failed to prove a breath demand was made, which precluded reliance on the evidentiary shortcuts in former ss. 258(1)(c) and (g) of the Criminal Code.
The Court of Appeal dismissed the Crown's appeal, confirming that while the lawfulness of a demand need not be proven to use the shortcuts, the fact that a demand was made is a condition precedent.
The Court also agreed that the defence's failure to object to the certificate's admissibility when tendered did not prevent them from arguing in closing that the Crown failed to prove an essential element of the offence.
