Ian B. Cowan

The Crown sought to introduce a statement made by the defendant to Constable Foreman in the Intoxilyzer room for purposes of cross-examination.

The defendant was charged with impaired driving and driving with over 80 mgs. per cent blood alcohol.

The court conducted a voluntariness voir dire and found that the Crown failed to call all persons in authority who had dealings with the defendant, specifically the Staff Sergeant and booking officer who were observed in conversation with the defendant on video.

The court excluded the statement, finding that the Crown's failure to call these witnesses prevented it from satisfying the burden of proving the statement was voluntarily made.

The applicant brought a Charter application alleging a breach of section 7 rights due to the Crown's failure to timely disclose that no video recording existed of the intoxilyzer breath tests.

The applicant argued this prevented him from assessing the strength of the Crown's case within the 90-day window required to qualify for Stream A of the ignition interlock program, which provides reduced driving suspension periods.

The court dismissed the application, finding no section 7 violation occurred.

The court noted that while disclosure obligations are continuing, there is no mandatory 90-day disclosure deadline, and the applicant suffered no prejudice as he had not intended to plead guilty within that period and entered a not guilty plea at trial.