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Speculative proof cannot rebut breath test presumptions under the Code.
The Crown appealed an acquittal on an over-80 charge where the trial judge found the statutory presumptions for breath test results were rebutted by non-compliance with a recommended observation procedure.
The majority held that an accused must adduce evidence both of malfunction or improper operation and that the defect tends to cast doubt on reliability in the specific case.
It concluded the evidence remained theoretical and speculative on reliability, so the presumptions were not rebutted.
The acquittal was set aside and a new trial ordered.
The dissent would have dismissed the appeal, finding the technician evidence sufficient to raise a reasonable doubt and warning against expanding the accused’s evidentiary burden.
