R. v. Kelly

R. v. Kelly

The CQT tendered was excluded because Crown failed to establish that it was ‘made under this Part’ by proving the necessary preliminary facts (including system blank and calibration tests within prescribed limits and that the alcohol standard was certified by an analyst, alongside identity, instrument and technician...

Source-derived case information.

Citation
2019 NSPC 73
Parties
Crown: Her Majesty the Queen; Accused: Michaela Elizabeth Kelly
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
6 December 2019
Procedural Posture
Criminal Impaired Driving / Trial Judgment
Outcome
Not guilty
Legal Topics
Admissibility of Hearsay Certificates, Breathalyzer/approved Instrument Evidence, Presumption of Accuracy (s.320.31), Interpretation of ‘made Under This Part’ (s.320.32), Disclosure Obligations (s.320.34)
Source Language
english
Criminal Law Evidence Law Administrative/statutory Interpretation Admissibility of Hearsay Certificates Breathalyzer/approved Instrument Evidence Presumption of Accuracy (s.320.31) Interpretation of ‘made Under This Part’ (s.320.32) Disclosure Obligations (s.320.34)

Source-derived case record

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Parties

Her Majesty the Queen

Crown

Michaela Elizabeth Kelly

Accused

Procedural Posture

Criminal Impaired Driving / Trial Judgment

Legal Issues

  1. 1 Whether admissible evidence existed to prove beyond a reasonable doubt that the accused was impaired by alcohol
  2. 2 Whether a Certificate of Qualified Technician (CQT) under s.320.32 is admissible and can be used as evidence of BAC when the presumption in s.320.31(1) does not apply
  3. 3 What preliminary facts / preconditions must be established for a CQT to be ‘made under this Part’ and thus admissible

Ratio Decidendi

The CQT tendered was excluded because Crown failed to establish that it was ‘made under this Part’ by proving the necessary preliminary facts (including system blank and calibration tests within prescribed limits and that the alcohol standard was certified by an analyst, alongside identity, instrument and technician identification and sampling times); absent that proof and given disclosure failures the certificate could not be received and without it the Crown did not prove impairment beyond a reasonable doubt, resulting in acquittal.

Court Disposition

Not guilty

Orders

  • Certificate of Qualified Technician (Exhibit #2) excluded from evidence
  • Accused Michaela Elizabeth Kelly found not guilty of impaired operation contrary to s.320.14(1)(a)