Appeal by the accused for an over 80 charge...on 4 grounds: 1-did i err in law in concluding that the statutory rebuttable presumption contained in S 237 1c could only be applied to a case where the Crown had preceeded by way of certificate evidence...2-did i err in law in concluding that there had to be proof of the suitability of the substance or solution used in the breathalyzer machine at the time of the analyses of teh samples of the accuseds breath, and proof of how the chemical analysis were conducted where no certificate evidence was relied upon and the Crown proceeded by way of viva voce evidence...3-did i err in law in concluding that the demand made pursuent to s 235 1 was not made forthwith or as soon as practicable by reason of the delay in taking the roadside sample...and 4-did i err in law in concluding that the samples taken as provided for in s 237 1cii were not taken as soon as practicable by reason if delay in taking the roadside sample?
Issue Number One: Both methods are available for the Crown to be presented affront of the court
Issue Number Two: Technicians are instructed to make a check test but the making of this test or its results have not been made conditions of the validity of the certificate and it has not been provided that the certificate would not be vailid if it was shown that the instrument had been maintained and operated in accordance with the manufacturer's instructions. In short the Crown may obtain the advantage of the satutory presumption under s. 237 1c by offering proof, by certificate or by oral evidence, of the 3 elements specified therein. Nothing more is required, in the absence of any evidence to the contrary. I would dismiss the appeal.
-appellant acquitted of a drunk driving charge under s. 236 of the Criminal Code
-Crown electing to proceed under summary conviction procedure, had sought to prove the charge by viva voce evidence, relying on the presumption created by s. 237(1)(c), and appellant had called no evidence in defence