The Supreme Court of Canada has dismissed Mr. Lam's application for leave to appeal an order that he have a new trial on an exceed .08 charge. Mr. Lam was acquitted at trial because the trial judge declined to admit the certificate of analysis. The trial judge considered that the failure to send the approved instrument – an Intoxilyzer – for annual inspection for 13 months amounted to evidence tending to show that the instrument was “operated improperly”, thus defeating the presumption in s. 258(1)(c) and rendering evidence of the results of the analysis inadmissible. The Crown's summary conviction appeal was allowed and a new trial was ordered:
The trial judge had erred in elevating the recommendations of the Alcohol Test Committee that approved instruments be inspected annually to a condition precedent for proper operation of the instrument. Also, whether the instrument was “operated improperly” was a question of law for the trial judge to decide, not an issue upon which the expert witness was entitled to offer an opinion. R. v. Lam, 2016 ONCA 850; leave to appeal dismissed, Lam v. R., 2017 CanLII 21428 (SCC)