I have always said – whenever asked – that in an “over 80” case the Crown shouldalways call the qualified breath technician. There are many reasons for this. The recent case of R v Michel,2011 SKQB 356 illustrates one of those reasons.
Jason Michel was charged with “over 80”. After being arrested Michel provided two samples of his breath. The readings were recorded in a certificatewhich the Crown filed at trial. The certificateindicated that Michel’s BAC was “.200” and “.190” milligrams per 100millilitres.
This error was not picked up during the trial. During closing submissions defence counsel pointed out this error andsought an acquittal. The trial judge convicted Michel holding that the error was obviously a typographical error:2010 CarswellSask 894. Michel appealed:2011 SKQB 356.
On appeal Scherman J held that the trial judge had erred. While it is possible to correct errors in acertificate with viva voce evidence, in the present case therewas no such evidence [para 5]. Scherman J concluded as follows:
In the absence of evidence of an error in completing the certificate and what the actual readings were, it is my opinion that the learned Provincial Court judge had no alternative but to accept the facts as stated in the certificate to becorrect and conclusive proof of the accused’s blood alcohol content [para 14].