The New Brunswick Court of Appeal has upheld the conviction of Mr. Hebert, who was initially acquitted at trial by raising an ‘observation period’ issue:
From the evidentiary record, it was simply not possible to conclude there had been improper use of the approved instrument in obtaining the breath samples for analysis. The evidence showed unequivocally that the technician followed the steps set out in the operation manual, including the observation period of at least 15 minutes. The contention that the technician could not carry out certain preparatory tasks during this observation period is without merit given that the operation manual allows the technician to perform more than one task during this period. R. v. Hebert, 2018 NBCA 18