R. v. Oliphant 2025 SKKB 4 is a Crown appeal regarding the acquittal of Cam Oliphant, who had been charged with operating a conveyance with a blood alcohol concentration (BAC) at or exceeding 80 mg per 100 mL.
During the original trial, Crown provided evidence that Mr. Oliphant’s breath samples showed readings of 90 mg% and 80 mg% respectively. However, the trial judge acquitted Mr. Oliphant after ruling the approved instrument printout was inadmissible. The trial judge found the document failed to meet the requirements of s. 320.33 of the Criminal Code because the technician’s certification referred to an “attached” printout, yet the printout was not physically stapled or clipped to the certificate.
The entire initial acquittal hinged on the fact that the two documents were not joined by a “sliver of metal”—commonly known as a staple. The defence successfully argued at trial that because the breathalyzer printout wasn’t physically “attached” to the technician’s certificate, the results were legally “non-compliant.” It is quite a feat of legal gymnastics to suggest a criminal charge should vanish simply because someone forgot to use a red Swingline.
There was a certain comedic moment in the trial where defence counsel meticulously cross-examined a court clerk to confirm she was the one who eventually put the staple in the documents. Rarely is a court clerk cross-examined about something that happened right in front of the trier of fact.
Counsel then dramatically declared the lack of an original staple to be important. One can almost imagine the silence in the room as the fate of the Crown’s case rested on the timing of a paper-fastening device.
Without this exhibit, the trial judge concluded the Crown could not rely on the presumption of accuracy for the breathalyzer results.
The Crown appealed the acquittal on several grounds, primarily arguing the trial judge misinterpreted the word “attached” as requiring physical attachment. They further argued the trial judge erred in finding the Crown could not rely on the presumption of accuracy even though another document had been admitted.
On appeal, the Saskatchewan Court of Kings Bench overturned the acquittal. Justice Morrall for the Saskatchewan Court of Kings Bench opened the decision by comparing the law to a “brook meandering through a forest full of twists and turns.” While this is a lovely image, it is a remarkably scenic way to describe a case that essentially was an otherwise benign impaired driving prosecution.
The appeal was argued by Mark Brayford, K.C. and Brian Pfefferle, K.C. That alone is humorous enough: two giants of impaired driving defence in Saskatchewan working together on an appeal case that turns on nothing more than the absence of a staple. But it is also a wonderful testament to the creativity of the defence bar, particularly in impaired driving cases where the Criminal Code has stripped away many of the otherwise available legal arguments. It is proof that defence lawyers will always find a way to defend their clients and are of infinite creativity.
Just, maybe, a little too creative in this case.
The court ruled “attached” does not strictly require a “sliver of metal,” ie, a staple. In a modern legal context, documents are considered “attached” if they are tendered together as a package and contain details that clearly link them to one another.
The court noted in an age of electronic scanning, physical staples are “surplusage” and not a mandatory precondition for admissibility.
The court found the defence’s pointed cross-examination regarding the lack of a staple was sufficient notice to the Crown the document’s admissibility was being challenged.
The court held the Certificate of a Qualified Technician is sufficient on its own to prove BAC results. The printout was helpful but not a strictly necessary evidentiary document to trigger the presumption of accuracy. Realistically, since the Supreme Court of Canada’s decisions in R. v. Rousselle, 2025 SCC 35 and R. v. Larocque, 2025 SCC 36, nothing beyond the Certificate of Qualified Technician is required, provided the Certificate meets the requirements of Section 320.31 of the Criminal Code.
The appeal judge offered a dose of modern reality, dryly noting “nobody scans a staple or a paperclip”. He pointed out that in 2025, requiring physical attachment for documents are clearly identical in detail and tendered as a single package is “archaic” and “formalistic.”
Ultimately, the court decided it wasn’t setting a “dangerous precedent” just because it acknowledges two papers sitting in the same folder belong together.
