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Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog

TO RELY UPON THE PRESUMPTION OF ACCURACY IN SECTION 320.31(1) OF THE CRIMINAL CODE, DOES THE CROWN HAVE TO PRESENT EVIDENCE CONCERNING THE CERTIFICATION OF THE ALCOHOL STANDARD THAT WAS USED BY THE QUALIFIED TECHNICIAN?

In R. v. MacDonald, 2022 YKCA 7, August 12, 2022, the following answer was provided (at paragraphs 1 and 2):

In 2018, Parliament amended the Criminal Code to change the nature of the “80-and-over” impaired-driving offence and to restructure the various presumptions and evidentiary shortcuts available to the Crown. The question is whether these amendments introduced a requirement that, in order to take advantage of the key presumption in this scheme—the presumption of accuracy—the Crown must adduce evidence directly from an analyst (either by certificate or by testimony) about the alcohol standard that was used by the qualified technician who operated the approved instrument.

Such evidence was not required prior to 2018. In my view, the 2018 amendments did not change this. The Crown can continue to rely on the admissibility and sufficiency of the certificate of the qualified technician as evidence that the technician used an alcohol standard that was certified by an analyst.