The Crown appealed an acquittal on a charge of operating a motor vehicle with a blood alcohol concentration exceeding the legal limit.
The trial judge had ruled that the breath samples were not taken “as soon as practicable” under s. 258(1)(c) of the Criminal Code and concluded that the Crown could not rely on breath test results or a toxicologist’s report to prove the offence.
On appeal, the court held that failure to establish the “as soon as practicable” requirement only deprives the Crown of the statutory presumption of identity and does not render breath evidence or expert toxicology evidence inadmissible absent a Charter application.
The court further held that the trial judge had no obligation to raise a potential Charter breach on his own motion where the accused was represented and no timely Charter application was brought.
Because the evidence clearly established guilt beyond a reasonable doubt, the acquittal was quashed and a conviction substituted.
