request of defence counsel dated January 26, 1987 for a test ampoule of the standard alcohol solution used to test the breathalyzer machine initially, and for a test ampoule used in the machine to test the alcohol content of the breath of the accused...the Crown replied to accused's counsel in May, 1987 and stated that as of January 26, 1987 neither the Regina City Police nor the R.C.M.P. had the standard alcohol solution lot number 30004 available as the entire lot had been used in the normal course of testing procedures. the Regina City Police had used the last of lot number 30004, being the standard alcohol solution to test the breathalyzer machine initially, as of November, 1986 and the R.C.M.P. had none available after March, 1986

failure of the Crown to provide an ampoule of the standard alcohol solution and an ampoule used in the breathalyzer to determine the quantity of alcohol in the breach of the accused

Bourget case was distinguished by counsel for the Crown in that the request for the sample ampoule had been timely and there was a direct refusal by the Crown to provide it. It was submitted in this case the application for samples by counsel for the accused was not timely and made after all of the standard alcohol solution ampoules had been used in the normal course of testing procedures. It was also stated that if the request had been made up to the end of November, 1986 an ampoule of the standard alcohol solution from lot number 30004 would have been available.

satisfied that the first open date for the trial of this charge against the respondent was January 28, 1987, which date was consented to by the Crown and counsel for the accused... satisfied that counsel for the respondent just became aware of the Bourget decision and that his request for sample ampoules was a bona fide one. To hold that the request of the respondent's counsel for these samples was not a timely one would mean that the rights of the accused ceased sometime before the trial date... do not know what a "timely request" is, and under the circumstances prevailing in this case reasonable doubt on this, and the accused must get the benefit of that doubt