Settled Law

Lam was convicted of driving with an illegal blood alcohol concentration [BAC] – he was over 80. This was his second trial.  The Crown sought to invoke the presumption of identity and attempted to file the certificate of analysis as evidence of Lam’s BAC at the time of driving. The defence opposed the filing of the certificate and argued that the failure of the police to have the approved instrument inspected in accordance with the Alcohol Test Committee’s [ATC] recommendations was fatal to the Crown’s case.

The trial judge accepted this argument and found that the police failure to send the Approved Instrument for annual inspection for 13 months constituted evidence which tended to show that the instrument was operated improperly. The accused was acquitted. The Crown appealed.

The Summary Conviction Appeal [SCA] judge held that the trial judge erred and ordered a new trial. In particular, the SCA found that:

elevating the recommendations of the Alcohol Test Committee that approved instruments be inspected annually to a condition precedent for proper operation of the instrument. This error led the trial judge to conclude that the presumption of identity in s258(1)(c) was not engaged and thus could not be invoked to establish the application’s blood alcohol concentration when he was operating his motor vehicle [@6]

Lam appealed to the Court of Appeal. The Court refused to hear the appeal: 2016 ONCA 850

The Court did so for four reasons.

First, leave from summary conviction proceedings are exceptional. Moreover, there is a need for finality. When all is said and done Lam will have had 2 trials, 2 summary conviction appeals and this journey to the Court of Appeal. [@12]

Second, the grounds of appeal are a mix of law and fact. With respect to the law it concerns only “the application of well-settled principles of law in no need of restatement or refinement” [@13]

With respect to the misapprehension of facts, the facts in this case as so many others, rarely “transcend the idiosyncrasies of the case at hand” [@13]


invocation of the frequency with which alcohol-driving prosecutions populate the lists in the Ontario Court of Justice to fund a claim of wider application proves too much. If frequency of prosecution were the touchstone for granting leave to appeal, leave would become the rule, not the exception in alcohol-driving offences.

Fourth, the substantive issue is in fact well settled law: See St-Onge-Lamoureux, 2012 SCC 57 "(not Jackson, 2015 ONCA 832 as the respondent suggests)" [@15].