J. Thomas Wiley

The accused was charged with importing cocaine and possession for the purpose of trafficking after a brick of cocaine wrapped in his T-shirt was found in the fuse box of a commercial truck he was a passenger in.

The truck was driven by a co-accused who testified against him.

Applying the W. (D.) test and a Vetrovec caution, the court rejected the accused's testimony as incredible and found him guilty on both counts based on circumstantial evidence, video surveillance, and the co-accused's testimony.

The Court considered whether 2008 Criminal Code amendments limiting evidence to challenge breath test reliability applied to a trial concerning earlier events.

A majority held the amendments affected substantive rights because they eliminated the Carter defence as an independent route to raise reasonable doubt and therefore should not apply retrospectively.

The Court restored the trial acquittal and allowed the appeal.

A dissent would have treated the provisions as procedural evidentiary rules with immediate effect.