R. v. Simpson

[1993] O.J. No. 4382

Facts

ON GD

: impaired driving and driving with excess blood alcohol ...defence counsel wrote to the Crown Attorney requesting production of the test and reference ampoules used in the breathalyzer tests administered to the accused, representative ampoules of the same lot number and sample of the alcohol lot standard number 10802. ...The Crown Attorney responded March 25, 1992, to the effect that the alcohol standard solution was exhausted nine days following completion of the breath tests of the accused, January 26, 1992. The defence was provided with a representative sample of the potassium dichromate ampoule. ...application under s. 7 of the Canadian Charter of Rights and Freedoms alleging that the failure (not refusal) of the Crown to produce a representative sample of the alcohol standard in the circumstances constituted a violation of the accused's right to make full answer and defence and, consequently, a violation of s. 7 Charter rights.

Another Issue

ON GD

what evidence should be called on an application for a stay re non-disclosure of test and reference ampoules

Reasons

ON GD

assume, without expressly deciding, that if an accused's defence to a charge under s. 253(b) of the Criminal Code (over 80) is based on R. v. Carter (1985), 19 C.C.C. (3d) 174, such defence raises a "live issue" whether the breathalyzer machine was operating correctly. This, in turn, is capable of calling into question the suitability of the potassium dichromate solution and the composition of the alcohol standard. ...In order for the trial judge to assess whether there was a live issue, it was necessary for him to hear the foundation evidence (regarding the quantity of alcohol, if any, consumed by the accused) and the expert evidence relating to what the blood alcohol count of the accused ought to have been based on the foundation evidence. ...In response, it may have been necessary for the trial judge to hear the evidence of the qualified technician, the evidence of the analyst who certified the correctness of the alcohol standard, and perhaps the evidence of others who observed the accused and might give evidence of impairment wholly inconsistent with the quantities of alcohol, if any, admitted to have been consumed by the accused. He may also have had to hear evidence concerning the timeliness and nature of the request for production and of the prosecution's response. In short, the trial judge might effectively have had to hear the entire evidence to be presented at the trial in order to decide the Charter application. consider if the Carter evidence was sufficiently credible that it raised a live issue. If it did, he would have had to consider any other evidence adduced which bore on the propriety of the solutions used in the breathalyzer and the conduct of the breathalyzer tests. ...Only after such a consideration would he have been able to assess the impact of the Crown's response on the issue of the ability of the accused to make full answer and defence. ...whether the accused had demonstrated on a balance of probabilities a violation of s. 7 of the Charter and, if so, what remedy was appropriate. ...the trial judge made those determinations without hearing any evidence and without having procured any clear agreement concerning the underlying facts...the Crown might have been able to persuade the trial judge, for instance, to reject the foundation evidence or to reject the expert evidence based on it

Another Issue

ON GD

failure of the Crown to produce a representative sample of the alcohol standard solution did not automatically mandate a stay of proceedings