R. v. McDermott

R. v. McDermott

The court held that Bill C-46’s amendments apply to trials commenced after December 18, 2018 (transitional cases); the former presumption of identity in s.258 applies to transitional s.253(1)(b) over‑80 charges; the Intox EC/IR II subject test printout satisfied s.320.33 and was admissible; the Crown may meet s.320.31(1) by technician viva voce, a qualified technician certificate, or an analyst certificate; the analyst certificates tendered (Airgas lot AG 618701) and the qualified technician certificate were admissible and the appropriate remedy for late notice was a short adjournment, not exclusion; no costs ordered against the Crown.

Citation
2019 NSPC 70
Parties
Crown/prosecution: Her Majesty the Queen; Accused/defendant: Kevin McDermott
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
12 November 2019
Procedural Posture
Criminal Impaired Driving (summary Conviction) / Voir Dire During Trial (evidence Admissibility and Transitional Issues)
Outcome
Voir dire decision: admitted the subject test printout (Exhibit 1) and admitted the qualified technician certificate and the two analyst certificates relating to Airgas lot AG 618701; granted a short adjournment opportunity to defence to consider cross‑examination or other steps; denied costs against the Crown.
Legal Topics
Presumption of Accuracy (s.320.31), Presumption of Identity (former S.258), Admissibility of Breath Test Printouts (s.320.33), Certificates of Analysts and Qualified Technicians (s.320.32), Transitional Application of Amended Criminal Code (bill C 46)
Source Language
English
Criminal Law Evidence Statutory Interpretation Presumption of Accuracy (s.320.31) Presumption of Identity (former S.258) Admissibility of Breath Test Printouts (s.320.33) Certificates of Analysts and Qualified Technicians (s.320.32) Transitional Application of Amended Criminal Code (bill C 46)

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Parties

Her Majesty the Queen

Crown/prosecution

Kevin McDermott

Accused/defendant

Procedural Posture

Criminal Impaired Driving (summary Conviction) / Voir Dire During Trial (evidence Admissibility and Transitional Issues)

Legal Issues

  1. 1 Which version of the law applies to a trial commenced after Dec 18, 2018 for samples taken before that date (transitional case)
  2. 2 Whether the former presumption of identity (former s.258(1)(c)) survives for transitional cases
  3. 3 What evidentiary proof satisfies the new presumption of accuracy in s.320.31(1)

Ratio Decidendi

The court held that Bill C-46’s amendments apply to trials commenced after December 18, 2018 (transitional cases); the former presumption of identity in s.258 applies to transitional s.253(1)(b) over‑80 charges; the Intox EC/IR II subject test printout satisfied s.320.33 and was admissible; the Crown may meet s.320.31(1) by technician viva voce, a qualified technician certificate, or an analyst certificate; the analyst certificates tendered (Airgas lot AG 618701) and the qualified technician certificate were admissible and the appropriate remedy for late notice was a short adjournment, not exclusion; no costs ordered against the Crown.

Court Disposition

Voir dire decision: admitted the subject test printout (Exhibit 1) and admitted the qualified technician certificate and the two analyst certificates relating to Airgas lot AG 618701; granted a short adjournment opportunity to defence to consider cross‑examination or other steps; denied costs against the Crown.

Orders

  • Intox EC/IR II subject test printout (VD-3) marked and admitted as Exhibit 1
  • Certificate of Qualified Technician dated June 23, 2018 admitted as an exhibit