William Pereira was charged with impaired and "over 80". At trial the breath technician testified. During his evidence he identified the lot # for the alcohol standard that was used in the approved instrument. During cross-examination it was elicited that the lot # provided by the breath technician - as recorded in his alcohol influence report - was different that the lot # recorded on the certificate.

The accused submitted that if the Crown was seeking to rely upon the presumption of identity - section 258(1)(c) - then it needed to prove, inter alia, that the instrument was being operated properly. The discrepancy in the lot # was evidence, the accused argued, that the instrument was not operated properly. The trial judge accepted that argument and acquitted the accused.

The Crown appealed: R v Pereira, 2011 CarswellOnt 3208 (SCJ).

On appeal Sproat J commented on the discrepency:

While logic and common sense do not always dictate the result, there appears to me to be only one explanation for the discrepency. The qualified breath technician testified that he was recording the number for the alcohol standard from a sticker of some sort that was on the Intoxilyzer machine itself. The only explanation I can think of is the qualified breath technician made a regrettable but human error in writing down the lot number and/or transposing it to the certificate. I can't think of any scenario in which this error could cast the slightest doubt on the validity of the reading [para 5].

Sproat J noted that the Crown had called the breath technician and therefore was not relying upon 258(1)(g). Accordingly, this error is not fatal unless it caused some doubt that the instrument was not operated or operating properly. Sproat J rejected that argument and held:

...the fact that there may be that slight discrepancy in the identified for the standard certainly doesn't raise any doubt that there was an alcohol standard in the machine. If Parliament intended that in order to invoke the presumption it was necessary for the witness to be able to definitely identify the alcohol standard, Parliament would have said so as it did in s. 258(1)(g) [para 9].

Sproat J allowed the Crown appeal.

DG Mack