DUI Metrology Dictionary

Conditions precedent/presumption/conclusive proof (in the context of 320.31)

Under the old law, we were used to conditions precedent to the presumption of identity (and maybe accuracy) such as "as soon as practicable", at least 15 minutes apart, and first test within two hours. The time of the delict has changed. There is no longer a presumption, there is conclusive proof (that concept needs to be challenged constitutionally.) There is no longer the pre C-2 "defence" (really negation of presumption) of evidence to the contrary and no longer the "defence" (negation of presumption) of lack of reliability of measurement result (operator error, malfunction, or biological presentation). Instead the conclusive proof test is only met if the conditions indicated in 320.31 are met. They include blank test, system calibration test, approved instrument, and qualified technician. We need to carefully litigate each condition precedent to get good case law, different than the old case law. It should be different because there is no longer a St-Onge Lamoureux defence.

© 2020 Allbiss Lawdata Ltd.

This site has been built by Allbiss Lawdata Ltd. All rights reserved. This is not a government web site.

For more information respecting this database or to report misuse contact: Allbiss Lawdata Ltd., 303-470 Hensall Circle, Mississauga, Ontario, Canada, L5A 3V4, 905-273-3322. The author and the participants make no representation or warranty  whatsoever as to the authenticity and reliability of the information contained herein.  WARNING: All information contained herein is provided  for the purpose of discussion and peer review only and should not be construed as formal legal advice. The authors disclaim any and all liability resulting from reliance upon such information. You are strongly encouraged to seek professional legal advice before relying upon any of the information contained herein. Legal advice should be sought directly from a properly retained lawyer or attorney. 

WARNING: Please do not attempt to use any text, image, or video that you see on this site in Court. These comments, images, and videos are NOT EVIDENCE. The Courts will need to hear evidence from a properly qualified expert. The author is not a scientist. The author is not an expert. These pages exist to promote discussion among defence lawyers.

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.

Alcotest® is a registered trademark of Draeger Safety, Inc. The Alcotest® 7410 GLC and 6810 are each an "approved screening device" in Canada.

Datamaster®  is a registered trademark of National Patent Analytical Systems, Inc.  The BAC Datamaster® C  is an "approved instrument" in Canada.