Law360 Canada (February 5, 2021, 6:11 AM EST) -- Appeal by the Crown from an appeal decision acquitting the appellant of driving over the legal limit and quashing his conviction for impaired driving and ordering a new trial on that count. The respondent was stopped for speeding. The officer noticed signs of alcohol consumption and transported the respondent to the station for a breathalyzer test. The officer never made a formal demand for a road or breathalyzer test. The trial judge declined to exclude the certificate of analysis on the basis that the Crown failed to establish a proper demand. The trial judge held defence counsel’s objection came too late as it was made after the certificate was received in evidence and the Crown had closed its case. He added that the results of the breath tests confirmed the presence of alcohol in the respondent’s body when he was driving and for some time thereafter. The trial judge entered a conviction for impaired operation and a conditional stay on driving over the legal limit charge. The appeal judge concluded that, absent evidence of a proper demand, the presumptions of accuracy and identity were not available to the Crown to prove the respondent’s blood alcohol concentration at the time of the sample or at the time of driving. He held that, in the absence of the presumptions, there was no admissible evidence of the respondent’s blood alcohol concentration, and that the trial judge erred in holding that an objection was necessary since the issue was not one of admissibility of the certificate, but whether the contents of the certificate could be used as evidence of their truth absent the availability of the presumptions....