Case Brief
...ce may be inaccurate although there was no evidence that challenged the reliability of the device. The defense feels that a new trail is necessary. Issue(s): This is an appeal by the Crown from the decision of the Honourable Madam Justice Roberts as a result of which the accused was acquitted of a charge pursuant to Section 253(b) of the Criminal Code which states that the accused had a respectful amount of alcohol concentration in his blood to allow him to operate a vehicle. The plaintiff appeals on the bases of the law conformable to Section 813 of the Criminal Code and wants either a conviction or a new trial. The request was based upon three questions, first was whether a reading of “fail” from the roadside screening device is reason enough to prosecute an offender? The Crown believes that there is no requirement for the police officer to be specifically trained in the use of the roadside screening device or that he must give evidence for the meaning of the word “fail” or of the meaning of the word “calibration.” The officer is entitled to rely on the “fail” reading to support his opinion that he had reasonable and probable grounds to demand a breathalyzer test. Secondly, could the court question the reliability of the screening device? The Supreme Court of Canada has confirmed that the A.L.E.R.T testing as part of the investigation process is not open to the court to enter into a form of assumption to the effect that the “fail” may be based on some inaccurate calibration. Within this specific case there was no evidence offered to challenge the device’s accuracy. Without evidence challenging the reliability of the screening device, the court cannot question its reliability on the basis that there was no evidence of calibration settings. The defence failed to raise reasonable and accurate evidence for the judge’s decision and therefore has been granted. Ratio Dicidendi: Madam Justice Roberts acquitted the accused from the trial because there was no evidence before the court as to how the unit was calibrated. In fact there was evidence, however it is not sufficient enough to determine if, indeed, this unit was calibrated for an ‘F’ at 100 milligrams of alcohol in his system. There was insufficient evidence to indicate that, in this particular case, if it was calibrated appropriately and as result, that information cannot be used for the purpose of determining if the officer had the reasonable and probable grounds to ask for the breath demand. The courts reasoning for their decision was based on fairness in the favour of the defendant. The plaintiff lacked evidence to insure the court that the screening device was accurate and therefore could not convict the defendant. Analyses: The trial judge founded her decision on the calibration issue. Although there was no evidentiary basis to do so. In R. v. Bernshaw (1995), 95 C.C.C (3d) 193 (S.C.C) Justice Sopinka held that where a particular screening device used has been approved under the statutory system, an officer is entitled to rely on its accuracy unless there is credible evidence to the contrary. Also in R. v. Paradisi (1998) O.J No. 2336 (C.A.) in wh...