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DUI, DWI & Criminal Legislation in Ontario  

Criminal Code of Canada , section: 258(1)(g)

DUI Procedure/Evidence, Certificate of Qualified Technician

(g) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), a certificate of a qualified technician stating

(i) that the analysis of each of the samples has been made by means of an approved instrument operated by the technician and ascertained by the technician to be in proper working order by means of an alcohol standard, identified in the certificate, that is suitable for use with an approved instrument,

(ii) the results of the analyses so made, and

(iii) if the samples were taken by the technician,

(A) [Not in force]

(B) the time when and place where each sample and any specimen described in clause (A) was taken, and

(C) that each sample was received from the accused directly into an approved container or into an approved instrument operated by the technician,

is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate;

Comments : The Assistant Crown Attorney has the option of proving his or her case by calling evidence from the arresting officer as to driving or care or control plus one of the following:

1. Certificate of the Qualified Technician

2. Viva voce (in person) evidence from the Qualified Technician.

If there is a mistake on the face of the Certificate of the Qualified Technician the Crown will probably arrange for the breath tech to come to Court to explain in person what happened in the breath room.

These days there is almost always evidence from a breath room video. If the Crown can't produce a breath room video (never taken, malfunction, or lost) it will be very difficult for the defence to establish any alleged instrument malfunction or operator error.

In Ontario Provincial Police, Greater Sudbury Police Service, Peel Regional Police, South Simcoe Police Service and many other centres cases there is also important evidence to be found in the internal data stored by the Intoxilyzer. Disclosure of this data is essential to the defence in determining if police complied with protocol on the day of the breath tests, specifically related to quality assurance checks prior to the subject breath tests.

If the Crown proceeds by Certificate only, the defence may ask the Court for leave to cross-examine the Qualified Technician.

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OntarioCriminal Code of Canada 258(1)(g) DUI Procedure/Evidence, Certificate of Qualified Technician