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  • Stephen Biss

Bill C-46 Rids Us of the Concept of "Suitability"


There are a number of old cases such as Harding, Corbett, Squires that suggest that the Qualified Technician is the final judge of "suitability" of the alcohol standard. See the section in Justice Kenkel's book on suitability of the solution.

I've argued in Court under the current C-2 legislation that the real issue is the connection between the clear colourless liquid in the Mason jar of the wet-bath simulator and the Certificate of the Analyst. The Crown might be able to prima facie prove that connection quickly through a presumption under section 258(1)(g) and/or 258(1)(f) (or the Crown might argue the presumption of reliability in 258(1)(c) solves the problem) but the connection needs to be proven.

"Suitability" used to relate to "ampoules" in a Breathalyzer 900 or 900A. The ampoules needed to be gauged for size using a template to determine suitability for use. Back then it made sense to use the word "suitable" to describe the connection.

It doesn't make sense any more and that's why Bill C-46 uses the wording in 320.18 "an alcohol standard that is certified by an analyst". I am arguing that this modern approach to interpreting the C-2 legislation on "suitability" (and the C-46 new 320.18) is required because of section 4(1) of the Weights and Measures Act.

#BillC46

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Intoxilyzer®  is a registered trademark of CMI, Inc. The Intoxilyzer® 5000C is an "approved instrument" in Canada.
Breathalyzer® is a registered trademark of Draeger Safety, Inc., Breathalyzer Division. The owner of the trademark is Robert F. Borkenstein and Draeger Safety, Inc. has leased the exclusive rights of use from him. The Breathalyzer® 900 and Breathalyzer® 900A were "approved instruments" in Canada.
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