Mr. Ben Joseph

The Crown appealed the respondent's acquittal on a charge of operating a motor vehicle with a blood alcohol concentration over 80 mg.

The trial judge had acquitted the respondent after accepting expert evidence that the absence of a value for 'uncertainty of measurement' raised a reasonable doubt about the proper functioning of the approved instrument.

The Superior Court of Justice allowed the appeal, finding that uncertainty of measurement is not required by law and that speculative evidence regarding potential instrument malfunction is insufficient to constitute 'evidence tending to show' under section 258(1)(c) of the Criminal Code.

A new trial was ordered.

The applicant sought exclusion of breath sample evidence under sections 8 and 24(2) of the Canadian Charter of Rights and Freedoms, arguing that police violated his section 8 rights by obtaining the samples without reasonable grounds to arrest.

The applicant challenged whether the arresting officer had reasonable grounds to arrest on an "over 80 mgs" charge and make an Intoxilyzer demand under section 254(3) of the Criminal Code.

The applicant raised three main issues: whether the officer should have delayed the approved screening device (ASD) test to eliminate mouth alcohol concerns, whether the officer should have verified device calibration, and whether the officer demonstrated sufficient competence in operating the device.

The court found no section 8 breach and dismissed the application.