R. v. Nasseir

[1998] O.J. No. 2166

Facts

ON GD

Cst. Smewing stated that he stoped the appellant's vehicle becuase it had been weaving and was slow to stop when signaled to do so. The officer noted a strong odour of alcohol on the appellant's breath slurred speech watery and glossy eyes and unsteady walkin when asked to exit his vehicle. Smewing arrested the appellant for impaired operation of a motor vehicle. at trial the breath tech did not testify with the prosecution tendering a Certificate of a qualiied Tech. the appellant submitted "it is axiomatic that the breath man would only have authority to conduct a test if he was eiter told by the pesenting officer that a demand was made or if he purported to render his own demand. Since the arresting officer's testimony in this case when specifically questioned by the Crown about an exchange regarding a conversation between the CST AND THE BREATH MAN, he made no mention o any demand, a crucial "evidentiary link" required for the admissiility of a certificate is absent.,

Reasons

ON GD

While Constable Smewing did not discuss the demand with teh technician, the officer's demand remained operative with the technician mearly acting as the arresting oficer's agent for the purposees of administering the test