R. v. Kelly

Parties

Procedural Posture

Criminal Impaired Driving / Trial Ruling on Motion for Directed Verdict (blended Voir Dire)

Legal Issues

1. 1 Whether a qualified technician can give viva voce hearsay evidence to prove that an alcohol standard was certified by an analyst for the purposes of s.320.31(1)(a)
2. 2 Whether the Crown provided reasonable notice under s.320.32(2) to tender a Certificate of Analyst
3. 3 Whether the hearsay nature of copies of Certificates of Analyst or technician testimony precludes use of the presumption of accuracy

Ratio Decidendi

The court found that although the Crown failed to provide sufficient notice under s.320.32(2) to tender the Certificates of Analyst as exhibits, viva voce hearsay evidence from the qualified technician about the certification of the alcohol standard is admissible; applying the line of authority following R. v. MacDonald, the technician's uncontradicted testimony satisfied the preconditions of s.320.31 and the defence motion for a directed verdict was dismissed.

Court Disposition

Defence motion for directed verdict denied; court found Crown satisfied s.320.31 preconditions by viva voce evidence of qualified technician though copies of Certificates of Analyst were not admitted as exhibits

Orders

• Defence motion for directed verdict dismissed
• Copies of the Certificates of Analyst will not be received as stand-alone exhibits due to deficient notice under s.320.32(2)