R. v. Oakman

[1993] M.J. No. 236



counsel requested that RCMP supply a sample of the test ampoule used to test the accused, and a sample of the standard alcohol solution... Crown was unable to supply either ..trial judge said not been able to make full answer and defence because of his inability to have independent tests conducted on a sample of the test ampoule. However, trial judge admitted the evidence, stating would not bring the administration of justice into disrepute



If the Crown was to be allowed to rely on the results of a breathalyzer test to convince a court to convict the accused on a criminal charge, the accused should have been able to question and challenge the results of the test. If the questioning of the test required independent scientific testing of a sample, the Crown had to supply the sample. The appellant's request was both timely and reasonable. .. where a violation of a Charter right could easily be avoided but occurs in any event, what may be seen as a less serious violation may take on a somewhat different characteristic. Here, the violation could easily have been avoided. Indeed, a simple change in policy, now implemented, will, I am satisfied, result in no further violations of a similar nature occurring. I am unable to characterize the violation here as trivial. I do not believe the exclusion of the evidence of the results of the analyses of the samples of the appellant's breath could bring the administration of justice into disrepute. To the contrary, where an accused person's trial is rendered unfair by the admission of such evidence in all of the circumstances here, the admission of that evidence could bring the administration of justice into disrepute.