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APPEALS - Grounds - Question of law - Summary conviction appeals

Monday, June 28, 2021 @ 9:41 AM  


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Appeal by Goldson from a decision of a summary conviction appeal judge that overturned his acquittal for operation while his blood alcohol level was over .08. After failing a roadside screening device test, the appellant was arrested and taken to an RCMP detachment where he provided breath samples that resulted in readings of .12 and .13. Rather than tendering the Certificate of Analyst, the Crown called the qualified technician to testify to the certification of the alcohol standard. The trial judge found the presumption of accuracy was not met by the technician’s inadmissible hearsay evidence and acquitted the appellant. The summary conviction appeal judge concluded hearsay evidence from the technician was admissible to prove the alcohol standard was certified by an analyst. The appellant was granted leave to appeal on the question of law on the proper interpretation of “certified by an analyst” in s. 320.31(1)(a) of the Criminal Code.

HELD: Appeal allowed. The revised conditions to trigger the presumption of accuracy and the omission of language setting out the content of the certificates had to be taken to be intentional, leaving the Crown with the ordinary rules of evidence to prove that the alcohol standard was certified by an analyst or by way of the statutorily recognized Certificate of Analyst. Requiring the Crown to, at a minimum, tender the Certificate of Analyst at trial was not an onerous obligation and was consistent with simplifying the law related to proof of blood alcohol content. The proper interpretation of “certified by an analyst” in s. 320.31(1)(a) of the Criminal Code required evidence from the analyst regarding certification, either by way of the analyst’s viva voce evidence or by way of the statutorily recognized Certificate of Analyst. The qualified technician’s evidence about whether an alcohol standard was certified by an analyst was inadmissible hearsay. Without evidence the alcohol standard was certified by an analyst, the Crown failed to establish the presumption of accuracy, which was the sole basis on which it relied to establish the offence against the appellant.

R. v. Goldson, [2021] A.J. No. 709, Alberta Court of Appeal, B.L. Veldhuis, J. Strekaf and R. Khullar JJ.A., May 21, 2021. Digest No. TLD-June282021001