The Court considered the issue of the remedy available for the breach, and concluded that certificate of a qualified technician should be admitted but that the evidentiary presumption of identity should be excluded.
26. In weighing and balancing the competing interests set out in the three-part Grant test, I am mindful of the following considerations: (1) The issue of whether the admission of evidence would bring the administration of justice into disrepute must be examined in the long-term with respect to maintaining integrity within and public confidence for the justice system. (2) If the breach of privacy does not result in the exclusion of evidence, then reasonable grounds, as statutorily mandated, become irrelevant. (3) if the certificate of analysis is included to the extent that the Crown cannot rely on the presumption of identity, evidence may still be called to prove the alcohol content at the time of the alleged offence. (4) If the presumption of identity was not excluded, the practical result would be that in spite of an unlawful demand, a citizen’s right to privacy is secondary to the need to shortcut the burden of proof, i.e. the presumption of identity.
The Court held that without the presumption of identity, there was no evidence that Mr. Marshall’s blood alcohol content exceeded .08 at the time that he had care or control of the vehicle. Mr. Marshall was found not guilty.
