Reading the Accused the Wrong Breath Demand


Approved Instrument v. Approved Screening Device Demands    

Courts have consistently held that one of the important legal preconditions for the effective operation of the statutory presumption created by s. 258(1)(c) of the Criminal Code is that the "samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3)" of the Criminal Code, namely by means of an "approved instrument" demand. Approved screening device demands made pursuant to s. 254(2)(b) of the Criminal Code have been consistently held to be legally inadequate for this purpose.


R. v. Waisanen, 2015 ONSC 5823 (CanLII) [Court upheld trial judge’s conclusion that providing the accused with an approved screening device demand rather than the approved instrument demand did not constitute a lawful demand pursuant to section 254(3)(a)(I); as a result, the certificate of analysis was excluded]. See also R. v. Kagayalingam, 2006 ONCJ 196 (CanLII), [2006] O.J. No. 2201, at paras. 8-13; R. v. Cheng, 2008 ONCJ 368 (CanLII), [2008] O.J. No. 3215, at paras. 3-11; R. v. Ovchinikov, [2008] O.J. No. 5959 (C.J.), at paras. 12-32; R. v. Monsivais, 2012 ONCJ 106 (CanLII), [2012] O.J. No. 951, at paras. 26-42; R. v. Williams, 2014 ONCJ 582 (CanLII), [2014] O.J. No. 5270, at paras. 9-27; R. v. Nasseir, [1998] O.J. No. 2166, 36 M.V.R. (3d) 117 (S.C.J.), at paras. 37-43; R. v. Palanacki, [2001] O.J. No. 6254(C.J.).


The decisions in this line of authority persuasively explain that these two demands are significantly different in their content and in their practical consequences for the accused, and that strict technical compliance with s. 258(1)(c) of the Criminal Code is required given the considerable evidentiary assistance provided to the Crown by the provision.

R. v. Omelan, 2017 ONCJ 152, at para 25.


Absent the requisite breath demand, the collection of accused’s breath is not authorized by law, and the accused’s section 8 right to be secure against unreasonable search and seizure is violated. 


The evidence of the readings is generally admissible under the common law but can be excluded under s. 24(2) of the Charter.


See R. v. Wylie, [2013] O.J. No. 5019 (C.A.) at para. 12; R. v. Omelan, 2017 ONCJ 152, at para 61 [where the Court concluded that the admission of the unlawfully-obtained evidence would not bring the administration of justice into disrepute].


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