Ontario

Legislation Sections Database at defencecounsel.com for:

DUI Procedure/Evidence

Instrument Test Record Card/Ticket

Criminal Code of Canada

Section number:

258(1)(f.1)

Instrument Test Record Card/Ticket

(f.1) the document printed out from an approved instrument and signed by a qualified technician who certifies it to be the printout produced by the approved instrument when it made the analysis of a sample of the accused�s breath is evidence of the facts alleged in the document without proof of the signature or official character of the person appearing to have signed it;

Subject to Interpretation Act evidence to the contrary.

Note that there are test record cards produced at times other than "when it made the analysis of a sample of the accused's breath":

Stand-alone cal. checks

Stand-alone diagnostics tests

Invalid Sample

Improper Sample

Deficient or Insufficient Sample

Some test record cards are produced at times which may or not be about the same time as "the analysis":

Unstable reference

Ambient fail

Inhibited RFI

Invalid Test (may indicate a valid test of BAC that the operator manually rejects because it isn't high enough or falls outside of 02 agreement)

It seems unfair that some test record cards are admissible in evidence under section 258(1)(f.1) but others aren't.

The existence of a subject test card indicating "internal standards passed" does not imply that the instrument is reliable or that all the information on the card is reliable. Examples include wrong dates, wrong times, wrong serial numbers, wrong data input by breath tech respecting incident and right to counsel, calibration checks based on a different zero than the subject test, police tampering with interferent calibration or a machine that only passes the basic diagnostics by banging or shaking the machine.

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