DATE: 20041006

DOCKET: C39865

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – GORDON HENRY DEMARS (Applicant)

BEFORE:

WEILER, GOUDGE and BLAIR JJ.A.

COUNSEL:

D. Edwin Boeve

for the appellant

Joan Barrett

for the respondent

HEARD & ENDORSED:

October 5, 2004

On appeal from the order of Justice Hugh Roderick McLean of the Superior Court of Justice, sitting as a Summary Conviction Appeal Judge, dated March 18, 2003, dismissing an appeal from the conviction entered by Justice Lorne E. Chester of the Ontario Court of Justice dated April 15, 2002.

A P P E A L B O O K E N D O R S E M E N T

[1] Although it would have been preferable if the Crown had specifically asked about designation, in our opinion, it was open to the trial judge to infer from the answer Const. Lacky gave, she was a qualified technician within the meaning of the Criminal Code. This was a criminal prosecution. The technician was present in court with a certificate indicating that she had operated an approved instrument and what the result was. It was clear from her evidence that she was acting in an official capacity at the time she administered and analyzed the samples of the appellant’s breath. Thus, a rebuttable presumption arose that the technician had been designated by the Attorney General. There was no challenge to her testimony. As a result, the trial judge was entitled to conclude that Const. Lacky was designated by the Attorney General.

[2] The appeal is dismissed.