R. Jourard

The court ruled on the admissibility of expert evidence from a toxicologist regarding the maintenance and operation of an Intoxilyzer 8000C breath testing device in an over 80 operation case.

The expert sought to raise a reasonable doubt about the reliability of the breath test results by analyzing historical maintenance records and COBRA data.

The court excluded the expert evidence on multiple grounds: the opinions were not logically relevant as they could not raise a reasonable doubt about the specific breath test results; the opinions were based on speculation and erroneous factual information; and the opinions constituted novel science lacking sufficient reliability and peer review.

The court emphasized that maintenance deficiencies must be directly linked to unreliable results, and that historical records cannot address the working status of the instrument at the time of the subject test.

The accused was charged with driving with over 80 milligrams of alcohol contrary to the Criminal Code.

The accused brought Charter applications seeking exclusion of breath test evidence on grounds of breaches of sections 8, 9, and 10(b) of the Canadian Charter of Rights and Freedoms.

The court found multiple Charter breaches: (1) a breach of section 10(b) rights due to a 10-minute delay in providing rights to counsel following arrest; (2) a breach of sections 8 and 9 rights due to an 11-minute delay in making the breath demand without reasonable justification; (3) a breach of section 8 rights due to video recording of the accused using the toilet without his knowledge or consent, with his genitals clearly visible on multiple occasions; and (4) a breach of section 10(b) rights due to police questioning the accused about the offence after he indicated he wished to speak to counsel but before he had an opportunity to do so.

The court excluded the breath test evidence pursuant to section 24(2) of the Charter, finding that the cumulative effect of the Charter breaches, combined with the serious invasion of privacy and the lack of justification for the police conduct, outweighed society's interest in adjudication on the merits.

The accused was charged with refusing to provide a breath sample at the roadside.

The Crown alleged that Constable Uppal made lawful demands for a breath sample, which the accused refused.

The central issue was whether the demands were lawful under section 254(2) of the Criminal Code, considering the "forthwith" requirement and the accused's right to counsel.

The court found that both an informal demand and a formal demand were lawful and timely, and that the accused's refusal constituted the offence.

The court rejected arguments that the absence of specific language rendered the demands invalid and found that the realistic availability of duty counsel did not support a finding that the demands were premature.

The accused was charged with impaired driving and operating a motor vehicle with a blood alcohol concentration exceeding 80 mg per 100 mL of blood following a roadside stop on June 22, 2011.

The Crown proceeded summarily.

The accused brought Charter applications challenging the admissibility of breath test evidence and alleging breaches of her rights.

The court found no breach of sections 7 or 11(d) regarding access to the Intoxilyzer 8000C, but found a breach of section 9 (arbitrary detention) due to over-holding for approximately 7 hours after breath tests were completed.

The court admitted the breath test evidence and found the accused guilty of the over 80 charge.

The impaired charge was conditionally stayed.

A nominal fine of $100 with enhanced credit for time served and a one-year driving prohibition were imposed as remedy for the section 9 breach.

The appellant appealed convictions for impaired care or control and care or control over 80 arising from erratic driving and subsequent breath tests showing a blood alcohol concentration of 210 mg/100 ml.

He argued that the trial judge misapprehended evidence relating to possible bolus drinking, failed to consider cocaine use as an alternative explanation for impairment, erred in upholding a strip search as lawful, and incorrectly found that breath samples were taken as soon as practicable.

The appeal court held that the trial judge properly considered the totality of the evidence and reasonably rejected the bolus drinking theory based on witness observations and expert evidence.

It also held that there was no evidentiary basis to infer cocaine ingestion, that the strip search complied substantially with the principles in R. v. Golden, and that the police acted reasonably in obtaining breath samples.

No legal or factual error warranting appellate intervention was found.

The accused was charged with care or control with excess blood alcohol and impaired care or control following a motor vehicle incident.

The Crown proved both offences beyond a reasonable doubt based on evidence of erratic driving, manifest signs of impairment, and breath analysis results.

The accused brought a Charter application alleging police misconduct including improper handcuffing, an allegedly planted drug baggie, failure to preserve cell video evidence, and an improperly conducted strip search.

The court found that while some police conduct was disrespectful and the Crown breached its disclosure obligation regarding the video, these breaches did not warrant a stay of proceedings or exclusion of evidence.

The court found the accused guilty of both charges.

The accused was charged with alcohol-impaired care or control and care or control with excess blood alcohol following an incident on July 29, 2011.

The Crown sought to rely on breath sample readings to establish the over 80 charge.

The court conducted a voir dire to determine whether the Crown could rely on the statutory presumption of identity under s. 258(1)(c) of the Criminal Code, and whether the Crown could prove the absence of bolus drinking.

The court found that while the police proceeded "as soon as practicable" in obtaining breath samples, the Crown failed to prove that the first sample was taken within two hours of the last observed care or control.

The court also found that the Crown proved the absence of bolus drinking based on circumstantial evidence.

The over 80 charge was dismissed due to the Crown's inability to establish the two-hour requirement for the presumption of identity.