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Tom Rees | Criminal Defence Lawyer Winnipeg

Defence Lawyer makes motion to set aside production order in Impaired Driving Case

A man charged with Impaired Driving makes a motion to set aside the production order requesting his medical records. In cases where it’s suspected a person has been driving while impaired, the police may be able to get an order for an accused person’s medical records. They get those records to use as evidence of impairment.

In some cases, the Court will decide evidentiary issues on the day of the trial, and in others, the Court will conduct a voir dire (hearing to decide legal issues) before the trial so the lawyers have time to prepare their cases.

In this case, the judge dismissed the application:

[6] In this case I have determined that Constable LeBlanc acted reasonably and with due diligence on September 3-4, 2013 with respect to the investigation of Mr. King. I do not find that Mr. King’s defence has been prejudiced by the use of a Production Order. This was one of the options available to the police. Hence, the application to set aside the Production Order is dismissed.     (R. v. King, 2014 SKPC 203)

The Court repeated the following law:

[20]           Subsections 254(3) and (4) of the Criminal Code read as follows:

254(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

(a) to provide, as soon as practicable,

(i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood, or

(ii)  if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood; …

(4) Samples of blood may be taken from a person under subsection (3) or (3.4) only by or under the direction of a qualified medical practitioner who is satisfied that taking the samples would not endanger the person’s life or health.

[21]   Section 30 of the Canada Evidence Act addresses the matter of “Business Records to be Admitted into Evidence”.  It is set out in Appendix “A”.


The application was dismissed and the case was put back to the trial date.

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