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 ,...