The Supreme Court of Canada in R. v. St-Onge Lamoureux (see November 25, 2012 blog entry) confirmed that an accused still has a limited ability to rebut the presumption if there is evidence tending to show that the approved instrument was malfunctioning or was operated improperly. There are cases proceeding through court that are trying to clarify exactly what disclosure of intoxilyzer documents is required to allow an accused to attempt to present such evidence. The Alberta Court of Appeal has provided an opinion on what type of evidence may need to be presented to trial judges to properly rule on disclosure applications for intoxilyzer maintenance records:
The evidentiary record in this case is sparse. It contains no expert evidence, nor any other evidence, relative to the operations of the Breathalyzer; nor is there any evidence regarding the “multiple internal tests” carried out by the approved instrument which it is argued make production of logs irrelevant. Nor is there any evidence showing that the judge was incorrect in concluding that maintenance logs are easily accessible and therefore not onerous for purposes of Crown disclosure. R. v. Kilpatrick, 2013 ABCA 168