SUPREME
COURT OF CANADA
Citation: R. v. St‑Onge Lamoureux, 2012 SCC 57, [2012] 3
S.C.R. 187
|
Date:
20121102
Docket:
33970
|
Between:
Her
Majesty The Queen and Attorney General of Quebec
Appellants
and
Anic St-Onge
Lamoureux
Respondent
-
and -
Attorney
General of Canada, Attorney General of Ontario, Attorney General of Manitoba,
Attorney General of British Columbia, Attorney General of Alberta, Barreau du
Québec, Association québécoise des avocats et avocates de la défense, Criminal
Lawyers’ Association of Ontario and Criminal Trial Lawyers’ Association
Interveners
Official
English Translation: Reasons of Deschamps J.
Coram: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein
and Cromwell JJ.
Reasons for
Judgment:
(paras. 1 to 101)
Reasons
Dissenting in Part:
(paras. 102 to 180)
|
Deschamps J. (McLachlin C.J. and LeBel, Fish and Abella
JJ. concurring)
Cromwell J. (Rothstein J. concurring)
|
R. v. St‑Onge
Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187
Her Majesty The Queen and
Attorney
General of Quebec Appellants
v.
Anic St‑Onge
Lamoureux Respondent
and
Attorney General of Canada, Attorney
General of
Ontario, Attorney General of Manitoba,
Attorney
General of British Columbia, Attorney
General of Alberta,
Barreau du Québec, Association
québécoise des avocats et
avocates de la défense, Criminal Lawyers’
Association
of Ontario and Criminal Trial Lawyers’ Association Interveners
Indexed as: R. v. St‑Onge Lamoureux
2012 SCC 57
File No.: 33970.
2011: October 13; 2012: November 2.
Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella,
Rothstein and Cromwell JJ.
on appeal from the court of québec
Constitutional
law — Charter of Rights — Presumption of innocence — Statutory amendments
affecting evidence that can be adduced to rebut presumption of accuracy and
presumptions of identity in context of prosecution for driving with blood
alcohol level over legal limit — Exclusion of possibility that “Carter” defence
would suffice on its own to cast doubt on breathalyzer test results — Whether
new provisions of Criminal Code infringe right to be presumed innocent — If so,
whether infringement justified — Criminal Code, R.S.C. 1985, c. C‑46,
s. 258(1) (c), (d.01), (d.1) — Tackling Violent Crime Act, S.C. 2008,
c. 6 — Canadian Charter of Rights and Freedoms, ss. 1 , 11 (d).
Constitutional
law — Charter of Rights — Fundamental justice — Right to make full answer and
defence — Statutory amendments affecting evidence that can be adduced to rebut
presumption of accuracy and presumptions of identity in context of prosecution
for driving with blood alcohol level over legal limit — Exclusion of
possibility that “Carter” defence would suffice on its own to cast doubt on
breathalyzer test results — Whether new provisions of Criminal Code infringe
right to make full answer and defence — If so, whether infringement justified —
Criminal Code, R.S.C. 1985, c. C‑46, s. 258(1) (c), (d.01), (d.1)
— Tackling Violent Crime Act, S.C. 2008, c. 6 — Canadian Charter of Rights
and Freedoms, ss. 1 , 7 .
Constitutional
law — Charter of Rights — Self‑incrimination — Statutory amendments
affecting evidence that can be adduced to rebut presumption of accuracy and
presumptions of identity in context of prosecution for driving with blood
alcohol level over legal limit — Exclusion of possibility that “Carter” defence
would suffice on its own to cast doubt on breathalyzer test results — Whether
new provisions of Criminal Code infringe protection against self‑incrimination
— If so, whether infringement justified — Criminal Code, R.S.C. 1985, c. C‑46,
s. 258(1) (c), (d.01), (d.1) — Tackling Violent Crime Act, S.C. 2008, c. 6
— Canadian Charter of Rights and Freedoms, ss. 1 , 11 (c).
L
was charged with operating a vehicle with a blood alcohol level over the legal
limit. At trial, she argued that the new provisions of the Criminal Code with
respect to breathalyzer test results are unconstitutional. The trial judge
found that the statutory amendments did not bar L from presenting a Carter
defence to rebut the presumption of accuracy. In light of the evidence, he
concluded that L’s testimony about her alcohol consumption was not sufficiently
serious or probative to raise a reasonable doubt. Finding that the qualified
technician’s explanations were sufficient and that the presumptions established
in s. 258(1) (c) and (d.1) of the Criminal Code
applied, he convicted L. The trial judge upheld in part the constitutionality
of the new Criminal Code provisions.
Held (Rothstein
and Cromwell JJ. dissenting in part): The appeal should be allowed in part.
Sections 258(1) (c), 258(1) (d.01) and 258(1) (d.1) of
the Criminal Code do not infringe s. 7 and s. 11 (c) of
the Canadian Charter of Rights and Freedoms , but do infringe s. 11 (d).
Sections 258(1) (d.01) and 258(1) (d.1), and s. 258(1) (c)
after severance of the second and third requirements for rebutting the
presumptions, are justified under s. 1 of the Charter .
Per
McLachlin C.J. and LeBel, Deschamps, Fish and Abella JJ.: A
statutory presumption violates the right to be presumed innocent if its effect
is that an accused person can be convicted even though the trier of fact has a
reasonable doubt. The expert evidence filed in this case reveals that the
possibility of an instrument malfunctioning or being used improperly when
breath samples are taken is not merely speculative, but is very real. The
Alcohol Test Committee of the Canadian Society of Forensic Science has made a
series of recommendations concerning the procedures to be followed by the
professionals who operate the instruments and verify that they are properly
maintained. These recommendations shed light on the circumstances that might
explain how an instrument malfunctioned or was used improperly. However,
Parliament did not adopt the Committee’s recommendations, and the prosecution
referred to no alternative mechanisms that would enable a court to find that
the instruments are generally maintained and operated properly or that the rate
of failure attributable to improper maintenance or operation is insignificant.
The trier of fact could therefore entertain a reasonable doubt about the
validity of the test results, since he or she will not have shown why they can
be relied on in the case of the accused who is on trial. But a judge who
entertains such a doubt will nevertheless remain bound by the presumptions of
accuracy and identity of s. 258(1) (c) of the Criminal Code and
will be required to convict the accused unless the accused rebuts those
presumptions in accordance with the requirements of that provision. In view of
the mechanism for applying the statutory presumptions established in s. 258(1) (c),
s. 258(1) (c) and (d.01) infringe s. 11 (d) of the
Charter .
Whether
a statutory presumption can be justified under s. 1 of the Charter depends
on several factors, including the importance of the legislative objective, how
difficult it would be for the prosecution to prove the substituted fact beyond
a reasonable doubt, whether it is possible, and how easy it is, for the accused
to rebut the presumption, and, as can be seen from this case, scientific
advances. The objective of the amendments — to give breathalyzer test results
a weight consistent with their scientific value — is pressing and substantial. Section 258(1) (c)
of the Criminal Code contains three separate and cumulative new requirements
that the accused must satisfy to rebut the presumptions of accuracy and
identity. These requirements must be considered separately for the remainder
of the justification analysis.
First,
the accused must raise a doubt that the instrument was functioning and was
operated properly. This requirement is rationally connected with Parliament’s
objective. According to the scientific evidence on which Parliament relied, if
the instrument functions properly and all the relevant procedures are followed,
the results should be reliable. In addition, the measure violates the right to
be presumed innocent as little as reasonably possible. The reliability of
breathalyzer tests has been recognized by the scientific and legal communities.
Moreover, the new provisions do not make it impossible to disprove the test
results, but require that evidence tending to cast doubt on the reliability of
the results relate directly to possible deficiencies in the maintenance of the
instruments or in the test process. Finally, the effects of this limit on the
right to be presumed innocent are proportional to Parliament’s objective. The
objective of the first requirement of s. 258(1) (c), as clarified by
s. 258(1) (d.01), is to confirm the scientific value and ensure the
primacy of breathalyzer test results. This statutory amendment was a response
to the serious disconnect that existed in the fact that the Carter
defence had a high success rate despite the recognized scientific reliability
of the results. Furthermore, the scheme adopted for breathalyzer tests
includes certain guarantees that place limits on police action and protect the
presumption of innocence.
Second,
s. 258(1)(c) requires evidence tending to show that the malfunction
or improper operation of the instrument resulted in a reading according to
which the blood alcohol level of the accused exceeded .08. This requirement constitutes
a serious infringement of the right to be presumed innocent that cannot be
justified in a democratic society. The requirement that the accused raise a
doubt that his or her blood alcohol level in fact exceeded .08 constitutes an
excessive burden in the context of a statutory scheme under which the evidence
must relate directly to the functioning or operation of the instrument.
The
third requirement of s. 258(1)(c) cannot be justified under s. 1
of the Charter . There is no rational connection between the objective of
the new legislative measures and the requirement of adducing evidence to raise
a doubt that the blood alcohol level of the accused in fact exceeded .08. This
requirement is in addition to the requirement of showing that the instrument
malfunctioned or was operated improperly. If the accused has already identified
a defect that could cast doubt on the reliability of the results, it is
difficult to justify requiring the court to nevertheless accept that the
results have probative value if the accused has produced no evidence regarding
his or her blood alcohol level.
It
was open to Parliament to exclude, in s. 258(1)(d.01), the
production of evidence of the alcohol consumption of the accused that tends to
show that the instrument was malfunctioning or was operated improperly, and to
provide that such evidence is legally insufficient to cast doubt on the
reliability of the test results. This exclusion does not infringe the rights
protected by s. 7 , nor does it render the rebuttal of the presumptions
established in s. 258(1)(c) illusory.
Section 258(1) (d.1)
of the Criminal Code establishes a second presumption of identity according
to which a blood alcohol level over .08 at the time of the analysis is presumed
to be the same as the blood alcohol level of the accused at the time of the
alleged offence. Since s. 258(1)(d.1) exempts the prosecution from
having to establish the guilt of the accused beyond a reasonable doubt before
the accused must respond, it infringes the right to be presumed innocent. To
rebut this second presumption of identity, evidence to the contrary adduced by
the accused must tend to show two facts: (1) the consumption of
alcohol of the accused was consistent with a blood alcohol level that did not
exceed .08 at the time when the offence was alleged to have been committed; and
(2) the consumption of alcohol of the accused was consistent with the test
results. The objective of these requirements is pressing and substantial. A
rational connection can easily be established between each of these
requirements and the requirement’s legislative objective. They also satisfy
the minimal impairment test. Section 258(1) (d.1) strikes a fair
balance between collective rights and individual rights, and is part of a
broader legislative scheme designed to confirm the primacy of breathalyzer test
results. It is a justified infringement of the right to be presumed innocent.
The
presumption of identity established in s. 258(1)(d.1) is based on
the usual behaviour of drivers, who do not generally drink a sufficient
quantity of alcohol to alter the results either just before or just after being
pulled over by the police. It is in fact the exceptional behaviour of the
accused, not the statutory presumption in the prosecution’s favour under
s. 258(1)(d.1), that makes it necessary for the accused to testify.
The choice by the accused to testify in this regard flows from a decision that
must be made whenever the Crown’s evidence is sufficient to support a
conviction. Thus, the protection against self‑incrimination guaranteed
by s. 11 (c) of the Charter is not infringed.
In
this case, the trial judge erred in holding that L could rebut the presumption
of accuracy of s. 258(1) (c) of the Criminal Code by
presenting a Carter defence, but that error did not affect his
conclusion, since, when all is said and done, he did not believe L. L’s
conviction is therefore upheld.
Per
Rothstein and Cromwell JJ. (dissenting in part): The appeal should
be allowed and the constitutional questions should be answered in the negative.
Sections 258(1) (c),
258(1) (d.01) and 258(1) (d.1) of the Criminal Code are
based on three quite straight‑forward ideas. These ideas are that if all
of the statutory requirements for taking and analyzing breath samples are
observed: (1) the breathalyzer results are reliable in the absence of
some basis in the evidence to doubt them; (2) the estimated blood alcohol
concentration (“BAC”) arrived at by consumption and elimination evidence (so‑called
Carter evidence) is not sufficiently reliable to be used to challenge
the accuracy of breathalyzer results; and (3) the BAC at the time of
testing will not be higher than at the time of driving, unless the accused
drank a large quantity of alcohol shortly before driving or consumed alcohol
between driving and testing.
None
of the challenged provisions limits the right under s. 11 (c) of the
Charter not to be compelled to testify. Although all of the provisions
are challenged under ss. 7 and 11 (d) of the Charter , the
constitutionality of the provisions which address the burden of proof are best
analyzed under s. 11 (d), while those which limit the relevance of,
or exclude evidence in relation to, particular issues are best analyzed under
s. 7 .
The
fact that s. 258(1) (d.01) of the Criminal Code excludes Carter
evidence to challenge the proper functioning or operation of the approved
instrument does not violate s. 7 of the Charter . The parties
contesting the provision have not shown that s. 258(1) (d.01) limits
in any meaningful respect the right to make full answer and defence. In the
face of the compelling evidence presented by the Crown about the generally
misleading nature of Carter evidence in relation to the accuracy of the
breathalyzer, those challenging the exclusion of this evidence had to advance
some evidence suggesting that, despite its great potential to mislead, there
remained some reason not to restrict the use of Carter type evidence. There
is no such evidence in this record. Although hypothetical scenarios can form
the basis of a Charter challenge, they must be reasonable. The other
ground advanced in support of the s. 7 challenge — that s. 258(1) (d.01)
makes a defence “illusory” — must also be rejected.
Section 258(1) (c)
of the Criminal Code restricts evidence in relation to the accuracy of
the device to evidence that tends to show three things: (1) that the
device malfunctioned or the analysis was performed improperly, (2) that
the improper performance resulted in the determination that the accused’s BAC
exceeded .08, and (3) that the accused’s BAC was in fact lower than .08 at the
time of the offence. The first two of these elements do nothing more than to
recognize the reality that breathalyzer readings, when obtained under the
statutory requirements, should be taken as accurate absent some reason to think
otherwise. Absent some evidence to suggest that the analysis is not accurate,
a reasonable doubt based simply on the general notion that technology may be
fallible or that there is a hypothetical possibility not founded on the
evidence that the device malfunctioned or was not operated properly would not
be a rational conclusion. Thus, requiring the inference of accuracy to be
drawn absent evidence to the contrary does not limit the right to make full
answer and defence. As for the third component, it does no more than set out
in statutory form what this Court has consistently held is required as a matter
of logic and relevance to rebut the presumption of accuracy.
A
provision limits the right to be presumed innocent guaranteed by s. 11 (d)
of the Charter if it either (a) relieves the Crown of having to
present a case to meet before the accused is called on to answer or (b) creates
the risk of conviction even if, without the provision, the trier of fact could
have a reasonable doubt about the accused’s guilt. The presumption of accuracy
in s. 258(1) (c) does not create a risk of conviction in the
presence of a reasonable doubt about guilt. It therefore does not limit the
right to be presumed innocent and there is no need to consider whether any limitation
is justified under s. 1 of the Charter . In requiring some evidence
tending to show improper functioning or operation, the provision simply enacts
common sense in light of accepted scientific fact. Parliament is entitled to
legislate this rather than require the evidence to be called in every “blowing
over” prosecution. Furthermore, in order to constitute evidence to the
contrary as a matter of logic and relevance, that evidence must tend to raise a
doubt that the BAC in fact did not exceed .08. It follows that this third
aspect of s. 258(1) (c) simply translates that requirement for
materiality into the consideration of whether the device functioned or was
operated improperly.
With
respect to the presumptions of identity in s. 258(1) (c) and (d.1)
of the Criminal Code , there is overwhelming evidence that a breathalyzer
test administered in accordance with the statutory requirements and which
reveals an over .08 result is a reliable indication that the accused had a BAC
which was equal to or higher than that at the time of driving. There is no
infringement of the right to be presumed innocent by deeming that the BAC at
the time of testing is the same as at the time of driving. Parliament has
simply legislated well‑established facts so that they do not have to be
proved in every case. There is no risk of conviction on the basis of a
reasonable doubt that has a basis in common sense and logic in the evidence or
the absence of evidence. A doubt about the presumptions of identity based on “bolus
or intervening drinking” would be speculative, absent evidence supporting the
fact that one or the other of those scenarios had actually occurred. The fact
of post‑driving drinking is peculiarly in the knowledge of the accused
and it would be unduly onerous to require the prosecution to negate this rather
unusual possibility in every case even when it had no foundation in the
evidence. Also, the challenged provisions do not relieve the Crown of its
obligation to present a case to meet before the accused is called on to answer.
Where an over .08 breathalyzer test result is obtained in accordance with the
statutory requirements, a trial judge cannot conclude that there is no evidence
upon which he could reasonably convict an accused person.
Even
assuming that ss. 258(1) (c), 258(1) (d.01) or 258(1) (d.1)
of the Criminal Code limit the right to be presumed innocent as
guaranteed by s. 11 (d) of the Charter , any limitation is
reasonable and demonstrably justified in a free and democratic society.
Cases Cited
By
Deschamps J.
Considered:
R. v. Crosthwait, [1980] 1 S.C.R. 1089; R. v. St. Pierre,
[1995] 1 S.C.R. 791; referred to: R.
v. Boucher, 2005 SCC 72,
[2005] 3 S.C.R. 499; R. v. Carter (1985), 19 C.C.C. (3d) 174; R. v.
Gilbert (1994), 92 C.C.C. (3d) 266; R. v. Orbanski, 2005 SCC 37,
[2005] 2 S.C.R. 3; R. v. Milne (1996), 107 C.C.C. (3d) 118; R. v.
Coutts (1999), 45 O.R. (3d) 288; R. v. Huff, [2000] O.J. No. 3487
(QL); R. v. Powichrowski, 2009 ONCJ 490, 70 C.R. (6th) 376; R. v.
Gibson, 2008 SCC 16, [2008] 1 S.C.R. 397; R. v. Oakes, [1986]
1 S.C.R. 103; R. v. Downey, [1992] 2 S.C.R. 10; R. v. Vaillancourt,
[1987] 2 S.C.R. 636; R. v. Whyte, [1988] 2 S.C.R. 3; Dubois v. The Queen, [1985] 2 S.C.R. 350; R. v. Hummel (1987), 36 C.C.C.
(3d) 8; R. v. Phillips (1988), 42 C.C.C. (3d) 150; R. v. Drolet,
2010 QCCQ 7719, [2010] R.J.Q. 2610; R. v. Edwards Books and Art Ltd.,
[1986] 2 S.C.R. 713; R. v. Chaulk, [1990] 3 S.C.R. 1303; Alberta
v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R.
567; R. v. Duff, 2010 ABPC 319, 501 A.R. 122; R. v. Gillespie,
2010 BCPC 207 (CanLII); R. v. Muzuva (2010), 206 C.R.R. (2d) 18; R.
v. Cayer, 2010 QCCQ 9352 (CanLII); R. v. Laforge, 2010 QCCQ
7718, [2010] R.J.Q. 2537; RJR‑MacDonald Inc. v. Canada (Attorney
General), [1995] 3 S.C.R. 199; R. v. Seaboyer, [1991]
2 S.C.R. 577; R. v. Morgentaler, [1988] 1 S.C.R. 30; R. v. O’Connor,
[1995] 4 S.C.R. 411; R. v. Kasim, 2011 ABCA 336, 515 A.R. 254; R. v. Darrach, 2000 SCC 46, [2000] 2
S.C.R. 443; R. v. Paszczenko, 2010 ONCA 615, 103 O.R. (3d) 424; R. v.
Grosse (1996), 29 O.R. (3d) 785; R. v. Hall, 2007 ONCA 8, 83 O.R.
(3d) 641; R. v. Bulman, 2007 ONCA 169, 221 O.A.C. 210.
By Cromwell J. (dissenting in part)
R. v. Carter (1985), 19 C.C.C. (3d) 174; R. v. Gibson, 2008
SCC 16, [2008] 1 S.C.R. 397; R. v. Seaboyer, [1991] 2
S.C.R. 577; R. v. Crosthwait, [1980] 1 S.C.R. 1089; R. v. St. Pierre,
[1995] 1 S.C.R. 791; R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499;
R. v. Lifchus, [1997] 3
S.C.R. 320; Dubois v. The Queen, [1985] 2 S.C.R. 350; R. v. Appleby,
[1972] S.C.R. 303; R. v.
Oakes, [1986] 1 S.C.R. 103; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Whyte, [1988] 2 S.C.R. 3; R. v.
Schwartz, [1988] 2 S.C.R. 443; R. v. Bulman, 2007 ONCA 169, 221
O.A.C. 210; R. v. Grosse (1996), 29 O.R. (3d) 785; R. v. Hall,
2007 ONCA 8, 83 O.R. (3d) 641; R. v. Paszczenko, 2010 ONCA 615, 103 O.R.
(3d) 424.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms,
ss. 1 , 7 , 11 (c), (d).
Controlled Drugs and Substances Act,
S.C. 1996, c. 19, s. 51 .
Criminal Code, R.S.C. 1985, c. C‑46,
ss. 212(3) , 253(1) (b), 254(2) , (3) , 258(1) (c), (d.01),
(d.1), (g), 276 .
Criminal
Law Improvement Act, 1996, S.C. 1997, c. 18, s. 10(2).
Interpretation
Act, R.S.C. 1985, c. I‑21, s. 25(1) .
Tackling
Violent Crime Act, S.C. 2008, c. 6 .
Authors Cited
Canada.
House of Commons. House of Commons Debates, vol. 141, 1st Sess., 39th Parl., January 30, 2007, pp. 6185, 6186.
Canada.
Senate. Standing Senate Committee on Legal and Constitutional Affairs. Proceedings
of the Standing Senate Committee on Legal and Constitutional Affairs, No. 9,
2nd Sess., 39th Parl., February 21, 2008, p. 37.
Canadian
Society of Forensic Science. “Recommended Standards and Procedures of the
Canadian Society of Forensic Science Alcohol Test Committee” (2009), 42 Can.
Soc. Forensic Sci. J. 1.
Cross on Evidence, 7th ed. By the late
Sir Rupert Cross and Colin Tapper. London: Butterworths, 1990.
Hodgson,
Brian T. “The Validity of Evidential Breath Alcohol Testing” (2008), 41 Can.
Soc. Forensic Sci. J. 83.
Martin,
T. L., J. G. Wigmore and K. L. Woodall. “A Comparison of Blood
Alcohol Concentrations Estimated From Drinking Histories of Drivers Charged
with ‘Over 80’ and Their Intoxilyzer® 5000C Results” (2004), 37 Can. Soc.
Forensic Sci. J. 187.
Robertson, Robyn, Ward Vanlaar and Herb Simpson. National
Survey of Crown Prosecutors and Defence Counsel on Impaired Driving: Final
Report. Ottawa: Traffic Injury Research Foundation, July 2008.
Sommers,
Marilyn Sawyer, et al. “‘Nurse, I Only Had a Couple of Beers’: Validity
of Self‑Reported Drinking Before Serious Vehicular Injury” (2002), 11 Am.
J. Critical Care 106.
Wigmore,
J. G. “Man vs. Machine: Self‑Reported Alcohol Consumption of
Drinking Drivers vs. Evidential Breath Alcohol Tests. Is the Restriction of
Evidence to the Contrary Scientifically Valid?” (2009), 54 Crim. L.Q.
395.
APPEAL from a judgment of the Court of Québec (Judge Chapdelaine),
2010 QCCQ 8552, [2010] J.Q. no 10077 (QL), 2010 CarswellQue
10716, convicting the accused of driving with a blood alcohol level over the
legal limit and upholding in part the constitutionality of ss. 258(1) (c),
(d.01) and (d.1) of the Criminal Code . Appeal allowed in
part, Rothstein and Cromwell JJ. dissenting in part.
Michel Déom, Jean‑Vincent
Lacroix, Marie‑Ève Mayer and Patricia Blair, for the
appellants.
Patrick Fréchette,
for the respondent.
François Joyal and Ginette
Gobeil, for the intervener the Attorney General of Canada.
James V. Palangio and Philip Perlmutter, for the intervener the Attorney
General of Ontario.
Christian Vanderhooft and Nathaniel Carnegie, for the intervener the Attorney
General of Manitoba.
Rodney Garson and Roger F.
Cutler, for the intervener the Attorney General of British Columbia.
Jason R. Russell and Robert Palser, for the intervener the Attorney General
of Alberta.
Marco LaBrie and Jean‑Philippe Marcoux, for the intervener Barreau
du Québec.
Éric Downs and Julie
Bolduc, for the intervener Association québécoise des avocats et avocates
de la défense.
Patrick Ducharme and Paul Burstein, for the intervener the Criminal Lawyers’
Association of Ontario.
Shannon K. C. Prithipaul, for the intervener the Criminal Trial Lawyers’ Association.
English
version of the judgment of McLachlin C.J. and LeBel, Deschamps, Fish and Abella
JJ. delivered by
[1]
Deschamps J. — This appeal concerns the constitutionality of certain provisions
of the Criminal Code, R.S.C. 1985, c. C‑46 (“Cr. C.”),
that deal with offences involving driving with a blood alcohol level over the
legal limit. The questions
raised in it relate to the right to be presumed innocent, the right to make
full answer and defence and the protection against self‑incrimination (ss. 11 (d), 7 and 11 (c), respectively, of the Canadian
Charter of Rights and Freedoms ).
[2]
The impugned provisions
include four new requirements that must be met by a person charged with driving
with a blood alcohol level exceeding 80 mg of alcohol in 100 ml of
blood (.08) in order to rebut the presumptions that
apply in the prosecution’s favour in such a case. Three of these requirements
relate to the presumption of accuracy and one of the presumptions of identity
that attach to the results of the test to which a person must submit when
required to do so by the police. To challenge the reliability of the results,
the accused must raise a doubt: (1) that the breathalyzer instrument was
functioning and was operated properly; (2) to the effect that the
determination that the blood alcohol level of the accused exceeded the legal
limit resulted from a malfunction or improper operation of the instrument; and
(3) to the effect that the blood alcohol level of the accused would not in
fact have exceeded the legal limit at the time when the offence was alleged to
have been committed. Moreover, a new requirement must now be met in order to
rebut the presumption of identity of the test results showing that the blood
alcohol level of the accused exceeded the legal limit with his or her actual
blood alcohol level at the time of the alleged offence. This presumption can
be rebutted only if the evidence adduced by the accused shows that his or her
consumption of alcohol was consistent not only with a blood alcohol level under
the legal limit at the time of the offence, but also — and this is the new
requirement — with the test results.
[3]
For the reasons that
follow, I find that Parliament was justified in requiring that any evidence
adduced to cast doubt on the test results be directed at the functioning or
operation of the instrument. However, where such evidence casts doubt on the
reliability of the results, the imposition of additional conditions does not
constitute a reasonable limit on the right to be presumed innocent. I would
reject all the other constitutional arguments that have been raised.
[4]
The impugned provisions are one aspect of the
broader fight against drinking and driving, a problem that has preoccupied
Parliament and the courts for several decades now. I will therefore begin by
reviewing the historical background and the legislative history of these
provisions before inquiring into their validity. I will conclude by
considering the specific case of the respondent.
1. Historical Background
[5]
In 1969, Parliament
made it a criminal offence for a person to operate or have the care of a
vehicle while his or her blood alcohol level exceeded .08, and made it
mandatory under the Criminal Code to provide breath samples for analysis
for the purpose of determining whether that offence had been committed. Among
other things, the relevant provisions required a person stopped by the police
to provide breath samples and created a mechanism by which those samples would
be analyzed by designated technicians using approved devices. Parliament also
introduced presumptions (of accuracy and identity) that would apply if certain
conditions were met and would make it easier for the prosecution to prove that
a person had operated or had the care of a vehicle while his or her blood
alcohol level exceeded the legal limit.
[6]
According to the presumption of accuracy, the
certificate of the technician responsible for the analyses is presumed to
provide an accurate determination of the person’s blood alcohol level at the
time the breath samples were taken. According to the first presumption of
identity, a person’s blood alcohol level as shown by the test is presumed to be
the same as his or her blood alcohol level at the time of the alleged offence.
Pursuant to a second presumption of identity added by Parliament in 1997 (Criminal Law Improvement Act, 1996,
S.C. 1997, c. 18,
s. 10(2)), a blood
alcohol level that exceeds .08 at the time of the analyses is presumed to have
also exceeded .08 at the time when the offence was alleged to have been
committed (R. v. Boucher,
2005 SCC 72, [2005] 3 S.C.R. 499, at para. 14).
[7]
Before the impugned
amendments were enacted, the relevant provisions stated that the presumptions
could be rebutted by producing “evidence to the contrary”. The Ontario Court
of Appeal considered the meaning of the expression “evidence to the contrary”
in R. v. Carter (1985), 19 C.C.C. (3d) 174,
and R. v. Gilbert (1994), 92 C.C.C. (3d) 266. It held that, under the provisions in force at the time, the testimony
of the accused concerning his or her alcohol consumption, combined with an
explanation by a toxicologist of the implications of that consumption, could be
tendered as “evidence to the contrary” in order to raise a doubt about the
results of the breathalyzer test. This defence is known as the “Carter
defence” after one of the Ontario Court of Appeal cases mentioned above.
[8]
In Gilbert,
Osborne J.A., although acknowledging the validity of the defence, had
expressed doubts about the chances of succeeding with it (at p. 280):
An
accused who is charged with an offence, the essence of which is that he was
driving with an impermissibly high blood‑alcohol concentration level must
be able to lead evidence as to the quantity of alcohol that he consumed at
relevant times. I do not think it is necessary that this kind of evidence be
accompanied by an attack on the particular breathalyzer machine, or its
operator. It may well be that
without such an attack it may be difficult for an accused to have the tendered
evidence accepted to the point of raising a reasonable doubt. That, however,
does not make the evidence inadmissible generally, or, as I have said,
inadmissible because it constitutes an indirect attack on the breathalyzer or
its manner of operation.
Despite these
reservations, the Carter defence proved to be effective, as can be seen
from the subsequent cases on this issue.
[9]
Moreover, it was held
that the prosecution could not generally use roadside sobriety tests conducted
by the police to incriminate a person who had operated or had the care of a
vehicle: R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R.
3, at para. 58; R. v.
Milne (1996), 107 C.C.C. (3d) 118 (Ont. C.A.); R. v. Coutts (1999), 45 O.R. (3d)
288 (Ont. C.A.); R. v. Huff, [2000]
O.J. No. 3487 (QL) (Ont. C.A.). Furthermore, the results of a breathalyzer test could not be used to
assess the credibility of an accused who raised a Carter defence (Boucher,
at paras. 43 and 64).
[10]
Because of these rules,
it was thought by some that the statutory presumptions attaching to
breathalyzer test results did not operate as Parliament had intended. In R. v.
Powichrowski, 2009 ONCJ 490, 70 C.R. (6th) 376, Judge
Duncan described what he saw as an impasse faced by the prosecution in certain
impaired driving cases under the former legislative scheme (at para. 23):
An
indirect result of the development of the case law, particularly R. c.
Boucher as interpreted and distinguished in R. v. Snider (2006), 31 M.V.R.
(5th) 296 (Ont. C.J.) and subsequent decisions, was that in cases involving a Carter
defence, prosecutors partly abandoned section 258 and attempted to prove
their cases the long way around without aid of the statutory presumption of
accuracy or, more precisely, the burden of its accompanying jurisprudence.
Ironically then, the very legislation that was designed to facilitate proof of
the prohibited condition in order to help combat the menace of drinking and
driving had become an obstacle to be avoided by the prosecution.
[11]
These difficulties were well known. In a 2006 report
prepared for the Department of Justice, Brian T. Hodgson, a forensic
toxicology consultant, stressed the importance of re‑establishing the
primacy of the test results:
For
the continuing use of the statutory legal limit enunciated in
subsection 253(b) CCC, over 80, the law needs to reestablish the primacy
of scientific evidential results. The defence of “evidence to the contrary”
needs to be directed specifically to the factors that impact on the evidential
breath alcohol results such as: deficiencies in the test process and/or
the drinking patterns of the accused just prior to the time of offence (within
30 minutes) or drinking after the time of offence but before the time of
testing. The Supreme Court’s acceptance of the subjective, non‑scientific
statements of an accused person about his drinking history leading up to the
time of offence without reference to the scientific evidential results is
incompatible with the scientific basis of 253(b) CCC. [Emphasis added.]
(“The Validity of Evidential Breath
Alcohol Testing” (2008), 41 Can. Soc. Forensic Sci. J. 83, at p. 94)
[12]
On January 30, 2007, Rob Moore, the
Parliamentary Secretary to the Minister of Justice, gave an overview of
Bill C‑32’s restrictions on the type of “evidence to the contrary”
that can be tendered to defend against a charge of impaired driving:
Probably
the most important change in this bill is the proposal to ensure that only
scientifically valid defences can be used where a person is accused of driving
with a concentration of alcohol exceeding 80 milligrams in
100 millilitres of blood. This is known as driving over 80.
(House of Commons Debates, vol. 141, 1st Sess., 39th Parl., January 30,
2007, at p. 6185)
[13]
Bill C‑32
died on the Order Paper, however. Then, on October 18, 2007, the
government introduced Bill C‑2, entitled the Tackling Violent
Crime Act . Bill C‑2 essentially reproduced Bill C‑32’s
restrictions on evidence to the contrary that would be admissible at a trial
involving a charge of driving with a blood alcohol level over the legal limit.
The Tackling Violent Crime Act (S.C. 2008, c. 6 ) was assented to on
February 28, 2008. Four of the requirements at issue in this appeal came
into force on July 2, 2008, while the fifth dates back to 1997. All the
provisions in question are reproduced in the Appendix.
2. Changes Resulting from the New Provisions
[14]
Before beginning the constitutional analysis, I
should explain how the scheme applicable to prosecutions for driving with a
blood alcohol level over the legal limit has been restructured by the statutory
amendments.
2.1 Presumptions
[15]
Before 2008, it was settled law that s. 258
Cr. C. established two presumptions of identity and one presumption
of accuracy. The amendments have not changed the nature of these
presumptions. Section 258(1) (c) Cr. C. establishes a
presumption of accuracy of
the results of the analyses, and a presumption of identity according to
which the results are presumed to correspond to the blood alcohol level of the
accused at the time of the alleged offence. (In the past, this Court placed the
presumption of accuracy in s. 258(1) (g) Cr. C.
However, the 2008 amendments indicate clearly that Parliament intended them to
apply to both the presumption of accuracy and the presumptions of identity, and
that it was also incorporating the presumption of accuracy into s. 258(1) (c).)
Section 258(1) (d.1) Cr. C. establishes a second
presumption of identity according to which a blood alcohol level over .08 at
the time of the analysis is presumed to be the same as the blood alcohol level
of the accused at the time of the alleged offence.
2.2 Standard of Proof
[16]
Nor has the standard of proof that must be met
to rebut the presumptions been changed. In R. v. Crosthwait, [1980] 1 S.C.R. 1089, this Court stated that
evidence to the contrary tendered by the accused in respect of the test results
was sufficient if it raised a reasonable doubt. In R. v.
Gibson, 2008 SCC 16, [2008] 1 S.C.R. 397,
the Court held that the two expressions “evidence tending to show” and
“evidence to the contrary” gave rise to the same standard: reasonable doubt (para. 17).
The use of the word “conclusive” in s. 258(1) (c) Cr. C.
does not mean that the presumptions are irrebuttable, as evidence to the
contrary can still be presented to counter them.
2.3 Evidence
[17]
The statutory amendments affect the evidence
that can be adduced to rebut the presumption of accuracy and the first
presumption of identity. The combined effect of the requirements set out in
s. 258(1) (c) and s. 258(1) (d.01) Cr. C. is
to preclude the Carter defence in its previous form. The accused can no
longer simply present a Carter defence. Rather, he or she must (1) raise
a doubt that the instrument was functioning or was operated properly, (2) show
that the malfunction or improper operation of the instrument resulted in the
determination that his or her blood alcohol level exceeded the legal limit, and
(3) show that his or her blood alcohol level would not in fact have
exceeded that limit at the time when the offence was alleged to have been
committed. I cannot accept the interpretation according to which the third of
these requirements from s. 258(1) (c) Cr. C. is not in
fact a distinct requirement but follows from proof of the first two (Powichrowski,
at para. 31). The wording of the English version of the provision makes
it clear that this third requirement is indeed a separate one: the accused
must produce evidence tending to show “three things”. Under the provisions as
amended, mere evidence that a deficiency in the test process led to a result
over .08 is not enough; Parliament also requires that the evidence raise a
doubt that the blood alcohol level of the accused in fact exceeded .08.
Whereas the evidence needed to satisfy the first two requirements relates to
circumstances directly associated with the taking of samples using the
instrument, a Carter defence will usually be needed to satisfy the
third.
[18]
In short, although the Carter defence may
formerly have been sufficient to rebut the presumption of accuracy and the
first presumption of identity, this is no longer the case. Two additional
requirements must now be satisfied.
[19]
Where an accused challenges the second
presumption of identity —
according to which, if a person’s blood alcohol level exceeds .08 at the time
of the analysis, the same is presumed to have been true at the time of the
offence (s. 258(1) (d.1) Cr. C.) — he or she is not challenging the test
results. Rather, the accused is arguing that, because he or she consumed
alcohol shortly before the samples were taken, the result indicating a level
exceeding .08 does not correspond to his or her blood alcohol level at the time
when the offence was alleged to have been committed. Under the new provisions,
the accused can rebut this presumption only by showing that his or her
consumption of alcohol was consistent both with a blood alcohol level not
exceeding .08 at the time of the offence and with the results of the
breathalyzer test. A Carter defence is therefore required to discharge
this burden.
3. Issues
[20]
Three statutory provisions are in issue, and
several arguments are raised against each of them. I will proceed as follows:
First, I will consider whether the three requirements provided for in
s. 258(1) (c) and clarified by s. 258(1) (d.01) are
consistent with the right to be presumed innocent. Because I conclude that the
second and third requirements are invalid, only the first requirement will then
have to be reviewed in relation to the right to make full answer and defence.
The arguments concerning the protection against self‑incrimination will
not be considered in relation to s. 258(1) (c) and s. 258(1) (d.01)
Cr. C., because they do not apply to them in light of my
conclusions with respect to those provisions. I will then consider whether the
two requirements established in s. 258(1) (d.1) are valid having
regard to the right to be presumed innocent and the protection against self‑incrimination.
Finally, I will review the trial judge’s decision and reasons in this case.
4. Compatibility of Section 258(1) (c) and
Section 258(1) (d.01) with the Right to Be Presumed Innocent (Section 11(d)
of the Charter )
4.1 Do these Provisions Infringe the Protected Right?
[21]
If the conditions for the taking of breath
samples set out in s. 258(1) (c) are met, the trial judge must
find that the test results adduced in evidence by the prosecution are, as
indicated in that same provision, conclusive proof, for the purposes of the
charge, of the blood alcohol level of the accused both at the time when the
analyses were made and at the time when the offence was alleged to have been
committed unless the accused succeeds in rebutting the presumptions of accuracy
and identity.
[22]
In R. v. Oakes, [1986] 1 S.C.R. 103, and
in several subsequent cases, the Court considered statutory presumptions
adopted to facilitate the prosecution’s task. Under the statutory provision at
issue in Oakes, possession of a narcotic gave rise to a presumption
against the accused that he or she had the intention to traffic in that
substance. The prosecution was thus exempted from proving an essential element
of the offence, namely the intention to traffic in a narcotic, and the onus was
on the defence to disprove this element. Another presumption was considered in
R. v. Downey, [1992] 2 S.C.R.
10. Under s. 195(2) Cr.
C. (now s. 212(3) ), living with or being habitually in the company of
prostitutes gave rise to a presumption that the person in question was living
on the avails of prostitution. Like the provision at issue in Oakes,
the one at issue in Downey required the defence to raise a doubt with
respect to an essential element of the offence.
[23]
The statutory presumptions established in s. 258(1) (c)
Cr. C. operate differently than the ones at issue in Oakes and Downey.
Section 258(1) (c) does not exempt the prosecution from proving that the
blood alcohol level of the accused exceeded the legal limit, which is an essential
element of the offence. However, in proving this essential element, the
prosecution can rely on the test results without having to prove that they are
valid. In sum, although the prosecution is not exempted from proving an
essential element of the offence, the accused must nevertheless raise a doubt
about a fact that the prosecution has not established in accordance with the
rules of criminal evidence.
[24]
A statutory presumption violates the right to be
presumed innocent if its effect is that an accused person can be convicted even
though the trier of fact has a reasonable doubt (R. v. Vaillancourt,
[1987] 2 S.C.R. 636, at pp. 654‑56; Downey, at p. 21).
In R. v. Whyte, [1988] 2 S.C.R. 3, the Court stressed that the
distinction between elements of the offence and other aspects of the charge is
irrelevant to the analysis regarding the right to be presumed innocent. “If an
accused is required to prove some fact on the balance of probabilities to avoid
conviction, the provision violates the presumption of innocence because it
permits a conviction in spite of a reasonable doubt in the mind of the trier of
fact as to the guilt of the accused” (p. 18). What is important for the
purpose of determining whether the right to be presumed innocent is violated is
not whether the statutory presumption relates to an essential element of the
offence, but whether it exempts the prosecution from establishing the guilt of
the accused beyond a reasonable doubt before the accused must respond (Oakes,
at p. 121; Dubois v. The Queen, [1985] 2 S.C.R. 350, at p. 357).
Thus, like the presumption at issue in Oakes, the ones established in s. 258(1) (c)
will violate the right to be presumed innocent if they can result in the
conviction of an accused in spite of a reasonable doubt that the accused is in
fact guilty.
[25]
It is therefore necessary to inquire into the
effect of the presumptions of accuracy and identity provided for in s. 258(1) (c)
Cr. C. The expert evidence filed in the instant case reveals that the
possibility of an instrument malfunctioning or being used improperly when
breath samples are taken is not merely speculative, but is very real. The
Alcohol Test Committee (“Committee”) of the Canadian Society of Forensic
Science (“CSFS”) has made a series of recommendations concerning the procedures
to be followed by the professionals who operate the instruments and verify that
they are properly maintained: “Recommended Standards and Procedures of the
Canadian Society of Forensic Science Alcohol Test Committee” (2009), 42 Can.
Soc. Forensic Sci. J. 1.
The Committee states that before collecting a breath sample, the qualified
technician must, among other things, observe the test subject for 15 minutes,
conduct a system blank test and a system calibration check, and verify the
temperature of the alcohol standard, and that the alcohol standard must be
changed after a certain number of calibration checks. The Committee also
recommends that approved instruments be inspected on an annual basis to ensure
that they continue to meet the manufacturer’s technical specifications.
According to the Committee, the calibration and maintenance of instruments are
essential “to the integrity of the breath test program” (p. 14).
[26]
The Committee’s
recommendations shed light on the circumstances that might explain how an
instrument malfunctioned or was used improperly. Thus, human error can occur
when samples are taken and at various steps in the maintenance of the
instruments, which, it should be mentioned, are used Canada‑wide.
Hodgson’s report, which the prosecution itself relied on as a source of the
statutory amendments, refers to the importance of proper operation and
maintenance:
.
. . to achieve scientifically sound results in operational use, user agencies
must ensure that approved instruments are operated by qualified personnel using
procedures based on good laboratory practice. [p. 83]
Moreover, Parliament
recognized the importance of following such practices and procedures in s. 258(1) (c)
and s. 258(1) (d.01), since the accused can rebut the presumptions
by showing that the instrument was not properly maintained or operated.
[27]
However, Parliament did not adopt the
Committee’s recommendations, and the prosecution referred to no alternative
mechanisms that would enable a court to find that the instruments are generally
maintained and operated properly or that the rate of failure attributable to
improper maintenance or operation is insignificant. The trier of fact could
therefore entertain a reasonable doubt about the validity of the test results,
since he or she will not have shown why they can be relied on in the case of
the accused who is on trial. But a judge who entertains such a doubt will
nevertheless remain bound by the statutory presumptions and will be required to
convict the accused unless the accused rebuts those presumptions in accordance
with the requirements of s. 258(1) (c). In view of the mechanism
for applying the statutory presumptions established in s. 258(1) (c),
I find that s. 258(1) (c) and s. 258(1) (d.01) infringe
s. 11 (d) of the Charter .
[28]
I wish to stress, however, that it is not
because the test results could differ from the blood alcohol level of the
accused at the time of the alleged offence that s. 258(1) (c)
infringes the right to be presumed innocent. Rather, the infringement lies in
the fact that, as Parliament recognized, the instruments can malfunction or be
operated improperly, and therefore that the trier of fact could have a
reasonable doubt about the guilt of the accused where the only evidence before
him or her consists of the test results.
[29]
A clear distinction must be drawn between the
stage of determining whether protected rights have been infringed and that of
determining whether the infringement is justified. Parliament may have had
good reasons for enacting the legislation in question. For instance, the fact
that evidence based on DNA analysis is scientifically reliable does not mean
that taking DNA samples does not infringe a protected right. If the measures
adopted by Parliament infringe Charter rights, the court determining
whether the impugned measures are constitutional must consider the
justification given for them.
4.2 Is the Infringement Justified?
[30]
This Court has recognized in a number of cases
that a statutory presumption that infringes s. 11 (d) of the Charter
can nevertheless be justified under s. 1 of the Charter : Whyte;
Downey; R. v. Hummel (1987), 36 C.C.C. (3d) 8 (Ont.
H.C.J.); R. v. Phillips (1988), 42 C.C.C. (3d)
150 (Ont. C.A.). According to the principles stated in those
cases, the means available to the accused to rebut the presumption are relevant
at the stage of justifying the infringement.
[31]
Whether a statutory presumption can be justified
under s. 1 depends on several factors, including the importance of the
legislative objective, how difficult it would be for the prosecution to prove
the substituted fact beyond a reasonable doubt, whether it is possible, and how
easy it is, for the accused to rebut the presumption, and, as can be seen from
the instant case, scientific advances.
[32]
The test for determining whether a statutory
provision that infringes a Charter right can nevertheless be justified
under s. 1 is well known. It was established in Oakes.
[33]
Parliament’s decision to resort to the
presumptions of accuracy and identity to help combat the problems resulting
from drinking and driving is not at issue in this appeal; rather, what are at
issue are the means available to rebut those presumptions. Parliament intended
to limit the evidence that can be adduced to raise a reasonable doubt about the
reliability of the test results. As can be seen from the legislative history,
the objective of the amendments, which form part of a scheme whose purpose is
to “reduc[e] the carnage caused by impaired driving” (Orbanski,
at para. 55), was to give the reliability of the
test results a weight consistent with their scientific value.
[34]
The reliability of
breathalyzer tests was explicitly mentioned in the abstract of Hodgson’s
report:
The
scientific basis for evidential breath alcohol testing is well established.
Experiments derived from a recognized scientific law in physics have proven the
scientific validity of breath analysis to determine alcohol concentration in
the blood. Instruments designed to measure breath alcohol content are based on
technology that is capable of producing scientifically sound results. Like
Canada, every country that embarks on evidential breath alcohol analysis
subjects these instruments to a rigorous evaluation process. These processes
determine whether the instruments meet the scientific standards for accuracy,
precision, reliability and specificity. [p. 83]
[35]
Specific evidence concerning the reliability of
the Alco‑Sensor IV‑RBT IV
and Intoxilyzer 5000C instruments was first
adduced in R. v. Drolet, 2010 QCCQ 7719, [2010] R.J.Q. 2610, a case also heard by Judge Chapdelaine, who presided over the
respondent’s trial. The parties consented to the filing of that evidence
in the case at bar (2010 QCCQ 8552 (CanLII)). In Drolet,
Judge Chapdelaine found that, as a whole, the scientific evidence produced
by the Attorney General of Quebec, the Barreau du Québec and the Association
québécoise des avocats et avocates de la défense provided [translation] “ample” proof of the
reliability of the instruments in question (para. 189).
[36]
Both Hodgson’s report and the comments of Judge
Duncan in Powichrowski illustrate the problems associated with evidence
of breathalyzer test results under the former legislative scheme: such
evidence could be rejected on the basis of the testimony of the accused, which
was sometimes characterized as subjective recollection. Because it was hard to
rely on the test results as effective evidence, the presumptions were less
useful than they might have been, and the prosecution was hindered in its efforts
to combat drinking and driving. I find that the objective of the amendments — to give the results a weight consistent
with their scientific value —
is pressing and substantial. As I have already mentioned, however, the
three requirements of s. 258(1) (c) are in fact separate, and
cumulative. I will consider them separately for the remainder of the
justification analysis under s. 1 of the Charter .
4.2.1 Evidence of the Malfunction or Improper Operation of the
Instrument
[37]
Once the objective has been found to be valid,
the Oakes test requires that a rational connection be established
between the objective and the means adopted to attain it. It is clear from the
words of s. 258(1) (c) and s. 258(1) (d.01) Cr. C.
that evidence relating directly to the instrument itself or to its operation is
now required in order to cast doubt on the reliability of breathalyzer test
results. A mere inference based on an individual’s rate of absorption or
elimination of alcohol, which is what was required for a Carter defence,
is no longer enough. The accused must now raise a doubt that the instrument
was functioning or was operated properly.
[38]
In my opinion, the requirement that the accused
adduce evidence concerning the functioning or operation of the instrument is
rationally connected with Parliament’s objective. According to the scientific
evidence on which Parliament relied, if the instrument functions properly and
all the relevant procedures are followed, the results should be reliable. It
is therefore logical to provide that the results can be challenged only by
raising problems that can be objectively identified and that relate to possible
deficiencies in the instrument itself or in the procedure followed in operating
it.
[39]
In addition to establishing a rational
connection, the appellants had to show that the measure violates the right to
be presumed innocent as little as reasonably possible (R. v. Edwards
Books and Art Ltd., [1986] 2 S.C.R. 713, at p. 772). In
the minimal impairment inquiry, the court must not second‑guess
Parliament and try to identify the least intrusive solution. In Downey,
this Court stated that “Parliament is not required to choose the absolutely
least intrusive alternative in order to satisfy this branch of the analysis.
Rather the issue is ‘whether Parliament could reasonably have chosen an
alternative means which would have achieved the identified objective as
effectively’” (p. 37, quoting R. v. Chaulk, [1990] 3 S.C.R.
1303, at p. 1341). The latitude accorded to Parliament
depends largely on the context. Hence, penal legislation that directly
threatens a person’s liberty will be assessed differently than a complex
regulatory response to a social problem (Alberta v. Hutterian Brethren of
Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, at paras. 35
and 37).
[40]
The reliability of breathalyzer tests has been
recognized in Hodgson’s report, as well as by expert witnesses across the
country (for example, Brian Image,
James Wigmore, Kerry Blake and Robert Langille), by several courts (the Alberta Provincial Court in R. v. Duff,
2010 ABPC 319, 501 A.R. 122, the British Columbia
Provincial Court in R. v. Gillespie, 2010 BCPC 207 (CanLII),
the Ontario Court of Justice in Powichrowski and in R.
v. Muzuva (2010), 206 C.R.R. (2d) 18, and the Court
of Québec in R. v. Cayer, 2010 QCCQ 9352 (CanLII)), and by the judge who heard the respondent’s case. Thus, the
validity of Parliament’s chosen method is supported by scientific evidence that
is accepted by the scientific and legal communities.
[41]
It should also be mentioned that the new
provisions do not make it impossible to disprove the test results. Rather,
Parliament has recognized that the results will be reliable only if the
instruments are operated and maintained properly, and that there might be
deficiencies in the maintenance of the instruments or in the test process. What
the new provisions require is that evidence tending to cast doubt on the
reliability of the results relate directly to such deficiencies.
[42]
Since the nature and scope of the evidence that
might be considered relevant has not been argued on this appeal, it would not
be appropriate to rule on the specific limits of that evidence. I will merely
note that, in light of the evidence accepted by the trial judge, there are
several pieces of evidence that can be provided to a person who is charged
under s. 253(1) (b) Cr. C., including the breathalyzer
readings, the qualified
technician’s certificate and the analyst’s certificate concerning the sample of
the alcohol standard.
[43]
In its recommendations, the CSFS Committee also suggested mechanisms for ensuring that the instruments function properly and
for assuring the quality of breath alcohol analyses. It can be inferred from these recommendations that the
instruments may not function optimally if the suggested procedures are not
followed.
[44]
The Barreau du Québec and the Association
québécoise des avocats et avocates de la défense argue on the basis of
Judge Lortie’s decision in R. v. Laforge, 2010 QCCQ 7718, [2010]
R.J.Q. 2537, that Parliament could have opted for a less
intrusive statutory amendment. In Laforge, Judge Lortie expressed
the view that Parliament could simply have allowed the accused to present a Carter
defence, but authorized the trier of fact to assess the credibility of the
accused in light of the breathalyzer test results (at para. 272):
[translation] Bill C‑2 was
clearly meant to be a response to Boucher, in which it was held that
breathalyzer test results could not be considered in assessing credibility. In
this context, Parliament could have amended the legislation to authorize such
an assessment. Thus, the trial judge would exercise his or her discretion and
assess the consumption theory of the accused in light of the evidence as a
whole. In other words, a St. Pierre amendment that is less
intrusive and would be held to be valid by the courts.
[45]
The scientific data presented at the time of the
enactment of the new provisions show that Parliament intended to do more than
simply adjust the wording that had been interpreted in Boucher. Apart
from the theoretical difficulties involved in assessing the credibility of the
accused on the basis of test results that are presumed to be accurate,
returning to a Carter defence would make it impossible to meet
Parliament’s objective. Absent statutory provisions to the effect that the
results are to prevail, judges would still be faced with the problem the
amendments were actually intended to solve. If the testimony of the accused
concerning his or her consumption of alcohol were accepted, it could raise a
reasonable doubt about the reliability of the test results despite the fact
that it has now been shown that the success rate of this defence is hard to
justify in light of the scientific reliability of the instruments. It was
appropriate for Parliament to enact provisions that would spare the prosecution
the burden of tendering evidence of scientific reliability in every case.
[46]
I accordingly conclude that requiring evidence
aimed at establishing that the instrument malfunctioned or was operated
improperly satisfies the minimal impairment test.
[47]
What remains to be determined is whether the
advantages of this requirement outweigh its disadvantages. For this, it is
necessary to examine the consequences of the measure. The limits that flow
from the requirement have a significant effect on the defences available to the
accused, as it is now more difficult to rebut the presumptions. The evidence
to be adduced is more complex. The accused must retain a technician or an
expert to determine whether the instrument malfunctioned or was operated
improperly. It is impossible for a layperson to do this. However, it should
be borne in mind that the Carter defence also required the accused to
retain an expert.
[48]
The prosecution gains a clear, albeit limited,
advantage from the requirement, since evidence to the contrary is limited to
the real issue: whether the test results are reliable. The evidence to be
tendered relates directly to an instrument that is under the prosecution’s
control. The prosecution must of course disclose certain information
concerning the maintenance and operation of the instrument, but it is free to
establish procedures for tracking how such instruments are maintained and
operated. Moreover, the prosecution has control over the people who maintain
and operate the instruments.
[49]
At first glance, the advantages of limiting the
evidence the accused can adduce in order to rebut the presumptions to evidence
that the instrument malfunctioned or was operated improperly appear to outweigh
the disadvantages of this measure. However, since this particular requirement
forms part of a broader legislative scheme, I must consider the other
requirements before concluding that it is justified.
4.2.2 Connection Between the Deficiency and the Determination of
a Level Exceeding .08
[50]
Section 258(1) (c) Cr. C.
requires evidence tending to show not only that the instrument was
malfunctioning or was operated improperly, but also that the malfunction or
improper operation resulted in a reading according to which the blood
alcohol level of the accused exceeded .08. This requirement furthers
Parliament’s objective of giving greater weight to the test results and thus
passes the rational connection test.
[51]
Whether the impairment resulting from this
requirement is minimal is open to debate. The accused must prove that if his or
her blood alcohol level exceeded the allowable maximum, it was because the
instrument malfunctioned or was operated improperly. The burden of doing so
seems at first glance to be quite heavy. No expert evidence was adduced to
show how this connection can be proved. It is conceivable that evidence that
an instrument has produced erratic results could raise a doubt that the results
concerning an accused are reliable. However, it would be difficult for the
accused to identify a specific malfunction and prove that it resulted in a
reading according to which his or her blood alcohol level exceeded the legal
limit. One can only speculate about the type of expert evidence the accused
would need to produce for this purpose, but it would certainly have to be much
more specific than the evidence needed to prove that the instrument was
malfunctioning or was operated improperly.
[52]
At this step in the defence process, it must be
accepted that the judge will not consider evidence showing a connection between
a deficiency and the determination that the blood alcohol level of the accused
exceeded the legal limit unless the accused has already proved that the
instrument was malfunctioning or was operated improperly. At this stage, if
the arguments made by the defence are frivolous or trivial, they will not cast
doubt on the proper functioning or operation of the instrument, and the defence
must fail. The facts of Crosthwait provide a good illustration of
this. In that case, the accused had tried to raise a doubt that the instrument
had functioned properly by arguing that the technician had not compared the air
temperature with the temperature of the solution before making the analyses.
The mere possibility that the instrument had malfunctioned was not evidence to
the contrary that could cast doubt on the reliability of the results.
[53]
Thus, it is necessary to proceed on the basis
that the accused must not simply show that a deficiency is possible, but raise
a real doubt that the instrument was functioning or operated properly. In
short, if Parliament’s objective was to eliminate frivolous cases, that
objective would be achieved through the assessment of the evidence by the trier
of fact. To enable the prosecution to benefit from the presumptions even
though a real doubt has been raised about the results of breathalyzer tests
amounts in practice to a reverse onus. Iacobucci J.’s comments in R. v. St. Pierre,
[1995] 1 S.C.R. 791, at par. 56, regarding the presumption of identity
are very relevant here:
If
this position is accepted, and the materiality of the evidence of the accused
depends upon reference to the legal limit, a grey area exists between the
breathalyzer result and the legal limit, and the burden of clarifying this will
be placed on the accused when, in fact, the burden should rest with the Crown
to prove its case.
[54]
I note that in St. Pierre, the Court
commented on the rules with respect to the evidence to the contrary that the
accused had to adduce to rebut the presumption of accuracy and distinguished
that evidence from the evidence needed to rebut the presumption of identity.
But Iacobucci J.’s comments on the presumption of accuracy were based on
the conclusions from Crosthwait, in which Pigeon J. had held that
to rebut the presumption of accuracy, the accused had to raise a reasonable
doubt “as to [his or her] blood alcohol content . . . being over the
allowable maximum” (p. 1101).
However, not only was it not argued in Crosthwait that the right to be presumed innocent had
been infringed, but Pigeon J.’s comment was
premised on the fact that “any evidence tending to invalidate the result
of the tests [could thus] be
adduced on behalf of the accused in order to dispute the charge against him” (p. 1100
(emphasis added)). The context of the new provisions is completely different.
To satisfy the second requirement and raise a doubt that his or her blood
alcohol level exceeded the allowable maximum, an accused cannot rely on his or
her consumption of alcohol (s. 258(1) (d.01) Cr. C.).
[55]
The presumption of accuracy was not at issue in St. Pierre.
Nevertheless, I note that the legislative context of this presumption was the
same in that case as in Crosthwait, that is, it could be rebutted by
“evidence to the contrary” (s. 25(1)
of the Interpretation Act, R.S.C. 1985, c. I‑21 , as
applicable to s. 258(1) (g) Cr. C.; see Crosthwait,
at pp. 1099‑1100). Moreover, this Court has
not had to consider the constitutionality of the presumption of accuracy until
now. I therefore endorse, in the context of the new provisions
on the presumption of accuracy, the following comment
that Arbour J.A. had made in dissent in St. Pierre, and with
which Iacobucci J. agreed (at para. 22):
To
the extent that Crosthwait, supra, held that “evidence to the
contrary” in s. 258(1) (c) means evidence tending to show that the
accused’s blood alcohol content at the time of the offence was below the
permissible limit, it should not be applied in a case such as the present one.
[para. 21]
[56]
Insofar as the majority in St. Pierre followed the approach adopted
by Pigeon J. in Crosthwait with respect to the requirement that the
accused show that his or her blood alcohol level did not exceed .08 in order to
rebut the presumption of accuracy, their reasons must be reconsidered to take
the constitutional argument into account. Although the
requirement that the accused raise a doubt that his or her blood alcohol level
in fact exceeded .08 could be justified when there were no limits on the
evidence the defence could tender to cast doubt on the test results, it
constitutes an excessive burden in the context of a statutory scheme under
which the evidence must relate directly to the functioning or operation of the
instrument.
[57]
A consideration of the advantages and
disadvantages of the second requirement of s. 258(1) (c) reinforces
the conclusion that this requirement is not justified. Requiring that a
connection be established between the deficiency in the functioning or
operation of the instrument and the determination that the blood alcohol level
of the accused exceeded the legal limit increases the burden on the defence
significantly without reducing the expense to the prosecution. In St. Pierre,
L’Heureux‑Dubé J., dissenting, stressed that Parliament had
established the presumption in s. 258(1) (c) Cr. C. “in
clear recognition of the difficulty and expense of requiring expert evidence in
virtually every alcohol‑related driving offence” (para. 90). The scheme that has existed since
the statutory amendments came into force is designed to require the prosecution
to adduce technical evidence to counter an attempt to rebut the presumption of
accuracy or the first presumption of identity. An accused who produces
evidence to rebut one of these presumptions will do so by calling an expert,
and the prosecution will have to call a technician, and possibly an expert. As
a result, being the party that has to prove that there is no connection after
the accused has adduced evidence to show that the instrument malfunctioned or
was operated improperly does not impose a significant additional burden on the
prosecution.
[58]
Moreover, it is important to note that, where
the accused raises a reasonable doubt that the instrument functioned or was
operated properly, this simply means that the prosecution loses the benefit
of the presumptions under s. 258(1) (c). The prosecution can
still tender additional evidence to prove that, despite the proven deficiency,
the blood alcohol level of the accused exceeded .08 as shown by the test
results.
[59]
In these circumstances, having regard to
Parliament’s objective of giving priority to the reliability of the test
results, I conclude that requiring an accused to prove not only a malfunction
or improper operation of the instrument that is serious enough to raise a
reasonable doubt, but also a causal connection between that malfunction or
improper operation and the determination that the blood alcohol level of the
accused exceeded the legal limit, constitutes a serious infringement of the
right to be presumed innocent. This infringement cannot be justified in a
democratic society.
4.2.3 Evidence of a Blood Alcohol Level Not Exceeding .08
[60]
Section 258(1) (c) Cr. C.
also requires the accused to adduce evidence tending to show that his or her
blood alcohol level would not in fact have exceeded .08 at the time of the
offence. Such evidence will generally be that of a Carter defence.
[61]
In Oakes, this Court stressed that
legislative measures adopted for the purpose of attaining an objective must be
“carefully designed to achieve the objective in question” (p. 139). If
Parliament’s objective were simply to ease the burden the prosecution must
discharge in combatting the problems associated with drinking and driving, the
rational connection would be clear, since this provision requires the accused
to raise an additional doubt about his or her guilt.
[62]
As the legislative facts show, however,
Parliament’s objective is not stated in such general terms that it can
encompass all measures taken to combat drinking and driving. Moreover, care
must be taken not to state the objective too broadly: RJR‑MacDonald
Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 144.
As I mentioned above, the objective was to give the test results a weight
consistent with their scientific value. In this context, I do not see a
rational connection between this objective and the requirement of adducing
evidence to raise a doubt that the blood alcohol level of the accused in fact
exceeded .08. Such evidence is not aimed directly either at the process of
taking samples using authorized instruments or at the test results.
[63]
The inquiry into whether the impairment of the
right to be presumed innocent is minimal confirms that the requirement of
evidence that the blood alcohol level of the accused was under the legal limit
is not justified. I reiterate that this requirement is in addition to the
requirement of showing that the instrument malfunctioned or was operated
improperly. If the accused has already identified a defect that could cast
doubt on the reliability of the results, it is difficult to justify requiring
the court to nevertheless accept that the results have probative value if the accused
has produced no evidence regarding his or her blood alcohol level. This
amounts to saying that, where a court has a doubt about an essential element of
the offence, it must nevertheless convict unless the accused can present
evidence tending to show that he or she is innocent. I accordingly find that
the third requirement of s. 258(1) (c) cannot be justified under
s. 1 of the Charter .
4.2.4 Conclusion Concerning the First Requirement
[64]
In light of my conclusion that the second and
third requirements are not justified, the first requirement is the only
one that can limit the evidence an accused may tender to cast doubt on the test
results. What therefore remains to be determined is whether the effects of
this limit on the right to be presumed innocent are proportional to
Parliament’s objective. In
the proportionality analysis required by s. 1 , it is important to consider
the impugned provision in the context of the entire legislative scheme of which
it forms a part.
[65]
In Downey, Cory J. explained that in
determining whether an infringement is proportional to the legislative
objective, it is necessary to balance societal and individual interests (p. 38).
The objective of the first requirement of s. 258(1) (c) Cr. C., as
clarified by s. 258(1)(d.01), is to confirm the scientific value
and ensure the primacy of breathalyzer test results. The purpose of this
statutory amendment was to remedy a situation that was common before it came
into force: test results could be rejected on the basis of testimony that was
considered subjective. The amendment was a response to the serious disconnect
that existed in the fact that the Carter defence had a high success rate
despite the recognized scientific reliability of the results.
[66]
Moreover, the scheme
adopted for breathalyzer tests includes certain guarantees that place limits on
police action and protect the presumption of innocence. Under s. 254(2) Cr. C.,
for example, a peace officer may not require a person who has operated or had
the care or control of a vehicle to perform physical co‑ordination tests
unless the officer has reasonable grounds to suspect that the person has
consumed alcohol. Under s. 254(3) Cr. C., an officer may not
require a person to submit to a breathalyzer test unless the officer has
reasonable grounds to believe that the person is committing, or has at any time
within the preceding three hours committed, the offence of driving or having
care of a vehicle with a blood alcohol level exceeding .08. The breath samples
must be analyzed by a qualified technician using an approved instrument. The
samples must be taken not later than two hours after the time when the
offence is alleged to have been committed, and with an interval of at least
15 minutes between the times when they are taken (s. 258(1) (c)(ii)
Cr. C.).
[67]
From this perspective,
if the second and third requirements provided for in s. 258(1) (c) Cr. C.
are severed, I consider Parliament’s response to be a measured one. In light
of the objective of this provision, the scientific evidence in the record and
the guarantees that form part of the evidential blood alcohol analysis scheme,
I find that the limit on defences that is established in s. 258(1) (c)
and s. 258(1) (d.01) Cr. C. is a justified infringement
of the right to be presumed innocent. As a result of this conclusion, my
consideration of the other arguments against finding s. 258(1) (c)
and s. 258(1) (d.01) to be constitutional will be limited to this
requirement.
5. Compatibility of Section 258(1) (c) and
Section 258(1) (d.01) with the Right to Make Full Answer and Defence
(Section 7 of the Charter )
[68]
The first argument based on s. 7 of the Charter
is that the combined effect of s. 258(1) (c) and s. 258(1) (d.01)
Cr. C. is to limit the right to make full answer and defence.
[69]
In enacting the impugned provisions, Parliament
excluded evidence of the alcohol consumption of the accused insofar as it is
adduced to show that the instrument was malfunctioning or was operated
improperly (s. 258(1) (d.01)). Moreover, the presumption of
accuracy of the results and that of identity can be rebutted only by casting
doubt on the proper functioning or operation of the instrument. In other
words, evidence of the alcohol consumption of the accused is not legally
sufficient to raise a doubt under s. 258(1) (c) as to the
reliability of the results. Because I have already found that the second and
third requirements of s. 258(1) (c) are unconstitutional, evidence of
the effect of the consumption of the accused on his or her blood alcohol level will
be admissible only if the accused chooses to tender it or if the presumptions
of s. 258(1) (c) are inapplicable (where, for example, the samples
were taken too late) or have been rebutted.
[70]
Since Carter, Canadian courts have
accepted that there is a logical connection between evidence of alcohol
consumption and the accuracy of breathalyzer test results. I agree that such
evidence can logically tend to discredit both the results of a breathalyzer
test and — indirectly — the proper functioning and operation of
the instrument itself.
[71]
However, the fact that evidence is relevant does
not necessarily make it admissible. This Court has recognized that relevant
evidence can be excluded if its exclusion is justified by a ground of law or
policy (R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 609).
Professors Cross and Tapper quote
Wigmore’s comment that “[a]dmissibility signifies that the particular fact is
relevant and something more, — that it has also satisfied all the auxiliary
tests and extrinsic policies” (R. Cross and C. Tapper, Cross on
Evidence (7th ed. 1990), at p. 60; see Seaboyer,
at p. 692, per L’Heureux‑Dubé J.).
[72]
In the context of the case at bar, as I
mentioned above, the expert evidence accepted by the courts over the past few
years has established that breathalyzer tests are very reliable, provided that
the instruments are operated and maintained properly. At the same time, many
reports have shown the testimony of accused persons regarding their alcohol
consumption to be unreliable (see J. G. Wigmore, “Man vs. Machine: Self‑Reported
Alcohol Consumption of Drinking Drivers vs. Evidential Breath Alcohol Tests. Is
the Restriction of Evidence to the Contrary Scientifically Valid?” (2009), 54 Crim.
L.Q. 395; T. L. Martin, J. G. Wigmore and K. L. Woodall,
“A Comparison of Blood Alcohol Concentrations Estimated From Drinking Histories
of Drivers Charged with ‘Over 80’ and Their Intoxilyzer® 5000C Results” (2004), 37 Can. Soc. Forensic Sci. J. 187;
M. S. Sommers et al., “‘Nurse, I Only Had a Couple of Beers’: Validity
of Self‑Reported Drinking Before Serious Vehicular Injury” (2002), 11 Am.
J. Critical Care 106).
[73]
Moreover, a study commissioned by the federal
Department of Transport and presentations made to the Standing Senate Committee
on Legal and Constitutional Affairs show that the Carter defence
resulted in a high rate of acquittal (Proceedings of the Standing Senate Committee on Legal
and Constitutional Affairs,
No. 9, 2nd Sess., 39th Parl., February 21, 2008, at p. 37;
R. Robertson, W. Vanlaar and H. Simpson, National Survey of Crown Prosecutors and Defence
Counsel on Impaired Driving: Final Report (July 2008), at p. 72).
I infer from these documents a criticism to the effect that a high rate of
acquittal is not justified in light of the probative value of the test
results. Although certain aspects of this evidence cannot be considered
scientific, it cannot be disregarded.
[74]
This evidence shows both that the probative
value of the testimony of the accused regarding his or her alcohol consumption
is debatable and that to admit such testimony for the purpose of determining
whether the test results are valid entails a real risk of perverting the fact‑finding
process. These studies and presentations were not available to the courts when
the Carter defence became established in our law. The law had to be
updated, and that is what the government endeavoured to do in amending the
legislation. The courts must take this into consideration. Requiring an
accused to tender evidence related directly to the functioning or operation of
the instruments used to take samples contributes to truth‑finding and
favours the integrity of the trial. In my opinion, the exclusion of evidence
of the alcohol consumption of the accused that is set out in s. 258(1) (d.01)
is based on a policy consideration that is consistent with Seaboyer.
[75]
In Seaboyer, the majority of this Court
held that the effect of s. 276 Cr. C. was to exclude evidence
that might be “of great importance to getting at the truth and determining
whether the accused is guilty or innocent under the law” (p. 616).
Thus, even though the purpose of s. 276 was to help judges and juries
arrive at just verdicts, its effect in practice could be the opposite:
Accepting
that the rejection of relevant evidence may sometimes be justified for policy
reasons, the fact remains that s. 276 may operate to exclude evidence
where the very policy which imbues the section — finding the truth and arriving
at the correct verdict — suggests the evidence should be received. [p. 620]
[76]
The same cannot be said in the instant case,
however. Unlike in Seaboyer, the statutory provisions at issue here do
not exclude evidence that might be necessary for a judge or jury to arrive at a
just verdict. There is no reasonable risk that these provisions frustrate the
objective of truth‑finding. In my opinion, it was open to Parliament to
exclude the production of evidence of the alcohol consumption of the accused
that tends to show that the instrument was malfunctioning or was operated
improperly (s. 258(1) (d.01)), and to provide that such evidence is
legally insufficient to cast doubt on the reliability of the test results.
This exclusion does not infringe the rights protected by s. 7 .
[77]
The second argument based on s. 7 of the Charter
is that the new provisions create a defence that is so difficult to attain as
to be practically illusory. In R. v. Morgentaler, [1988] 1 S.C.R. 30,
Dickson C.J. commented on the principle on the basis of which such an
argument could be made (at p. 70):
One
of the basic tenets of our system of criminal justice is that when Parliament
creates a defence to a criminal charge, the defence should not be illusory or
so difficult to attain as to be practically illusory.
[78]
Although Parliament now requires evidence
tending to establish a deficiency in the functioning or operation of the
instrument, this does not mean that there are limits on the evidence that can
reasonably be used by the accused to raise a doubt in this regard. The accused
can request the disclosure of any relevant evidence that is reasonably
available in order to be able to present a real defence. If the prosecution
denies such a request, the accused can invoke the rules on non‑disclosure
and the available remedies for non‑disclosure (see R. v. O’Connor,
[1995] 4 S.C.R. 411). In short, the accused might rely, for example, on a
maintenance log that shows that the instrument was not maintained properly or
on admissions by the technician that there had been erratic results, or he or
she might argue that health problems had affected the functioning of the
instrument (see R. v. Kasim, 2011 ABCA 336, 515 A.R. 254).
[79]
It should be noted that the defence created by
Parliament is not illusory simply because accused persons will rarely succeed
in raising a reasonable doubt that the instrument was functioning or was
operated properly. The existence of a defence must not be confused with how
often those presenting it are successful. As Judge Duncan noted in Powichrowski
(at para. 69):
While
it may be that the defendant, having explored every avenue, will be unable to
meet the requirements of the section and rebut the presumption, that is what
often happens when a defendant is faced with credible and reliable evidence
against him.
[80]
Finally, it should be mentioned that the
conclusion that the first requirement of s. 258(1) (c) does not
violate s. 7 is in no way incompatible with a finding that it constitutes
a justifiable infringement of the right to be presumed innocent. In light of
the scientific evidence in the record, as we have seen, Parliament was
justified in requiring evidence directly related to the operation or
functioning of breathalyzers. It was therefore open to Parliament, without
violating s. 7 or s. 11 (d) of the Charter , to exclude
the possibility that a Carter defence would
suffice on its own to cast doubt on the test results.
[81]
For these reasons, I find that the rebuttal of
the presumptions established in s. 258(1) (c), as clarified by
s. 258(1) (d.01), has not been rendered illusory by Parliament and that
this provision does not infringe the right to make full answer and defence.
6. Compatibility of Section 258(1) (d.1) with
the Right to Be Presumed Innocent (Section 11(d) of the Charter )
[82]
To facilitate a discussion on the amendments
that affect the second presumption of identity, this presumption of identity
must be clearly distinguished from the first one. The first presumption of
identity, which is established in s. 258(1) (c), allows the
prosecution to use the test results as a substituted fact in order to prove an
essential element of the offence, namely the blood alcohol level of the accused
at the time when the offence was alleged to have been committed. If the
accused argues that the results do not correspond to his or her blood alcohol
level at the time of the offence on the basis that the instrument was
malfunctioning or was operated improperly, the evidence the accused can adduce
will be limited by s. 258(1) (c) and s. 258(1) (d.01) Cr. C.
[83]
If the accused does not challenge the
functioning of the instrument, but instead argues that, contrary to the
results, his or her blood alcohol level at the time when the offence was
alleged to have been committed did not exceed .08 and that the results were
distorted by the fact that he or she had consumed alcohol shortly before or
after the alleged offence, the evidence the accused can tender to rebut the
presumption is circumscribed by s. 258(1) (d.1) Cr. C.
The type of consumption that can be used to rebut the second presumption was
explained as follows by Rob Moore during the debate that preceded the
enactment of Bill C‑32 (House of Commons Debates, at p. 6186):
This
could happen if, for example, the person downed several drinks and was arrested
before the alcohol was absorbed. It could also occur that after driving, but
before testing, the person consumed alcohol and it was absorbed by the time the
approved instrument test was taken.
[84]
As a result of the statutory amendments,
evidence to the contrary adduced by the accused must tend to show
two facts: (1) the consumption of alcohol of the accused was
consistent with a blood alcohol level that did not exceed .08 at the time when
the offence was alleged to have been committed; and (2) the consumption of
alcohol of the accused was consistent with the test results.
6.1 Does Section 258(1)(d.1) Infringe the Protected
Right?
[85]
As I mentioned in my analysis with respect to
s. 258(1)(c) Cr. C., a statutory presumption violates
the right to be presumed innocent if a judge can convict an accused even though
there is a doubt that the accused is actually guilty. For instance, where
breathalyzer test results according to which the blood alcohol level of the
accused exceeded .08 are tendered in evidence, the trier of fact could have a
reasonable doubt that the blood alcohol level of the accused was the same at
the time of the alleged offence, because the accused could have drunk shortly
before or after being pulled over. Since s. 258(1)(d.1) Cr. C. exempts the
prosecution from having to establish the guilt of the accused beyond a
reasonable doubt before the accused must respond, I must conclude that it
infringes the right to be presumed innocent.
6.2 Is the Infringement Justified?
[86]
The evidence that can be adduced to rebut the
presumption of identity established in s. 258(1)(d.1) Cr. C.
was clarified in two stages. The first requirement was incorporated into the Criminal
Code in 1997 (S.C. 1997, c. 18, s. 10(2)). Under the provision
that established it, the accused had to adduce evidence tending to show that
his or her blood alcohol level at the time when the offence was alleged to have
been committed did not exceed .08. This requirement is now found in the first
subparagraph of s. 258(1) (d.1) Cr. C.
Another requirement was added at the same time as the amendments to s. 258(1) (c) Cr. C. discussed above. According to
this new requirement, the evidence tendered by the accused must be consistent
with the test results.
[87]
No specific evidence
has been introduced concerning the objective of s. 258(1)(d.1)(i) Cr. C.,
but that objective can be inferred from the legislative history. The amendment
was passed shortly after — and most likely in response to — this Court’s
decision in St. Pierre, so the comments made in that
decision are helpful. The majority in St. Pierre held that the
presumption of identity could be rebutted by any evidence showing a difference
between the blood alcohol level of the accused at the time of the alleged
offence and his or her blood alcohol level at the time of the analyses. L’Heureux‑Dubé J., dissenting, was concerned that the
presumption would be rebutted “in every case where the accused invokes either
the ‘last drink’ defence or the ‘post‑driving drinking’ defence, where
there is not even an iota of proof to suggest that the discrepancy occasioned
by the alcohol consumption would be of any legal relevance to conviction or
acquittal on a charge of ‘over 80’” (para. 90). Parliament seems to have
shared this concern and to have tried to ensure that the prosecution would not
be required to have recourse to experts to explain the rate of absorption
between the time of the offence and that of the analyses. I have no difficulty
finding that this was a pressing and substantial objective.
[88]
The requirement
established in s. 258(1)(d.1)(i) must be considered in conjunction
with the 2008 amendment, which provides that the accused must also show that
his or her consumption was consistent with the test results. This change to
the presumption of identity, which was made at the same time as the amendments
to s. 258(1)(c) Cr. C., was
motivated by the same objective as those amendments. Parliament intended to
give the test results a probative value consistent with their scientific
reliability. I accepted above that this was a pressing and substantial
objective, and the same conclusion applies here.
[89]
A rational connection can easily be established
between each of the requirements set out in s. 258(1)(d.1) and the
requirement’s legislative objective. In the first case, the measure is linked
to Parliament’s wish to ensure that the prosecution does not have to have
recourse to experts to prove the blood alcohol level of the accused at the time
of the alleged offence where the difference is not significant. In the second
case, the measure is linked to Parliament’s wish to confirm the scientific
value of the test results and to establish an explicit correlation between
those results and a variation in blood alcohol level due to consumption of
alcohol by the accused shortly before or after the time of the alleged offence.
[90]
In my opinion, s. 258(1)(d.1) Cr. C.
also satisfies the minimal impairment test. Whereas requiring the accused to
show a connection between a malfunction of the instrument and the determination
that his or her blood alcohol level exceeded .08 imposes an undue burden on the
accused, the same is not true of requiring the accused to show that his or her
consumption of alcohol shortly before or after the alleged offence was
consistent with a blood alcohol level that did not exceed .08 at the time of
the alleged offence. In such situations, the accused does not challenge the
test results, but invokes his or her own unusual behaviour. It is the accused — and not the prosecution — who knows when he or she drank, and how much.
What is more, it is also the accused — and not the prosecution — who would decide to analyze his or her capacity to absorb and
eliminate alcohol, and to adduce evidence in this regard. I do not therefore
consider it unduly onerous to require the person who has this information and
is in a position to tender relevant evidence to show not only that he or she
had a “last drink”, or drank after being pulled over, but also that the
difference resulting from that consumption is relevant to the determination of
his or her guilt or innocence. I should also note that the cases in which such
a defence is raised should be rare, and that such a case would denote either
significant irresponsibility with regard to public safety or a pathological
reaction by the accused. As L’Heureux‑Dubé J. pointed out in St. Pierre (at
para. 106),
[i]n
most cases, moreover, there is good reason to suspect that post‑driving
drinking (or just the claim thereof) is an act of mischief intended to thwart
police investigators. All such cases, at the very least, involve a significant
degree of irresponsibility and a cavalier disregard for the safety of others
and the integrity of the judicial system. This Court should not encourage or,
at the very least, lend legitimacy, to such behaviour.
[91]
As for the second requirement of s. 258(1)(d.1)
Cr. C., it also infringes the right to be presumed innocent as
little as reasonably possible. Where the reliability of the test results is
not in dispute, requiring that evidence to the contrary be consistent with
those results means that the defences raised by the accused must be consistent
with one another. If the results would not have shown a blood alcohol level
over .08 without the “last drink” or “post‑driving drinking”, then the
consumption of alcohol by the accused will necessarily be consistent with the
test results. If the defence relates to the reliability of the results, then
the accused must impugn the test process itself under s. 258(1)(c) Cr. C.
and show that the instrument was malfunctioning or was operated improperly. An
accused cannot rely on s. 258(1)(d.1) Cr. C. to rebut
the presumption of accuracy or the first presumption of identity by raising a Carter
defence — that would undermine
the integrity of the entire legislative scheme.
[92]
Section 258(1)(d.1) Cr. C.
strikes a fair balance between collective rights and individual rights, and is
part of a broader legislative scheme designed to confirm the primacy of
breathalyzer test results. It is a justified infringement of the right to be
presumed innocent.
7. Compatibility of Section 258(1)(d.1) with
the Protection Against Self‑Incrimination (Section 11(c) of
the Charter )
[93]
The protection against self‑incrimination
does not apply in every case in which the accused risks being found guilty if
he or she does not present a defence. In R. v. Darrach, 2000 SCC
46, [2000] 2 S.C.R. 443, this Court noted that “[t]here is an important difference between a
burden of proof with regard to an offence or an evidentiary burden, and the
. . . need to respond when the Crown establishes a prima facie
case, in order to raise a reasonable doubt about it” (para. 50). The need
for the accused to testify to raise a doubt after the prosecution has produced
evidence — where, for example,
he or she wishes to rely on an alibi defence — results from a decision over which the Crown has no control. The
prosecution is responsible neither for the choice of the accused nor for the
consequences of that choice. The decision to testify in such circumstances is
not incompatible with the protection against self‑incrimination.
[94]
Section 258(1)(d.1) places an
evidentiary burden on the accused. Since the effect of the presumption is that
the prosecution need not prove that the consumption pattern of the accused is
irrelevant to the reliability of the test results, the onus is on the accused
to prove its relevance in order to ensure that those results do not stand as
proof of his or her blood alcohol level at the time of the offence. Since the
burden results from a statutory presumption and is not based on proven facts,
it might at first glance be inferred from Darrach that the evidentiary
burden is incompatible with the protection against self‑incrimination.
But this inference does not withstand scrutiny. The presumption is based on
the usual behaviour of drivers, who do not generally drink a sufficient
quantity of alcohol to alter the results either just before or just after being
pulled over by the police. It is in fact the exceptional behaviour of the
accused, not the statutory presumption in the prosecution’s favour under
s. 258(1)(d.1), that makes it necessary for the accused to testify.
[95]
This conclusion can best be understood by
considering the situation that arises in a case in which the prosecution cannot
rely on the presumption of identity established in s. 258(1)(d.1),
where, for example, more than two hours passed between the time of the alleged
offence and that of the test. In such a case, an expert will take the blood
alcohol level of the accused at the time of the test and use it to try to
calculate retroactively what that level would have been at the time when the
accused was pulled over. To do this, the expert must make certain factual
assumptions, for example, that the accused did not consume a large quantity of
alcohol within approximately one half hour before the alleged offence (in other
words, that a portion of the alcohol the accused consumed had already been
absorbed when he or she was pulled over), or between the time when he or she
was pulled over and that of the test. If nothing in the evidence makes it
possible to cast doubt on the expert’s assumptions, the court may make a
deduction, based on common sense, that a person will not generally ingest large
quantities of alcohol immediately before driving or while driving, or after
being pulled over by the police (R. v. Paszczenko, 2010 ONCA 615, 103
O.R. (3d) 424; R. v. Grosse (1996),
29 O.R. (3d) 785 (C.A.); R. v. Hall, 2007 ONCA 8, 83 O.R. (3d) 641; R.
v. Bulman, 2007 ONCA 169, 221 O.A.C. 210).
[96]
In sum, even without the presumption of
identity, the accused might be required to raise a doubt about his or her
unusual alcohol consumption if nothing in the evidence indicates that the
expert’s assumptions are erroneous. It therefore seems artificial to say that
requiring the accused under s. 258(1)(d.1) to testify about his or
her alcohol consumption imposes an evidentiary burden on the accused. The
choice by the accused to testify in this regard flows from a decision that must
be made whenever the Crown’s evidence is sufficient to support a conviction.
Thus, s. 11(c) of the Charter is not infringed.
8. Application to the Facts of This Case
[97]
The respondent was
charged under s. 253(1) (b) Cr. C. with operating a vehicle
with a blood alcohol level over the legal limit. A qualified technician took
three breath samples from her using an Intoxilyzer 5000C instrument. The analyses showed blood alcohol levels
of 164 mg, 124 mg and 130 mg in 100 ml of blood. Before
Judge Chapdelaine, the respondent challenged the application of the presumption
of accuracy on the basis of the differences in the test results. She argued that the technician should not have taken the result of
the second sample into account if he did not think it reflected her actual
blood alcohol level. In the respondent’s view, because of the difference of
more than 20 mg between the third analysis and the first, the
technician should have taken a fourth sample. She contended that the
prosecution could not benefit from the presumption of accuracy in these
circumstances. The respondent
also argued that the new provisions on breathalyzer test results are
unconstitutional.
[98]
Judge Chapdelaine found
that the qualified technician’s testimony was sufficient to explain the
differences in the results of the three analyses, and that the
technician’s certificate was proof of its content. The technician had taken a
third breath sample from the respondent because of the difference of more
than 20 mg between the first two results. He testified that the
respondent had not blown hard enough when the last two samples were taken (three
seconds for the second sample and four seconds for the third), mainly because
she was crying. In his opinion, however, the instrument had functioned
effectively, and the last two samples were valid even though the results
obtained from them were below the respondent’s actual blood alcohol level.
[99]
Regarding the
constitutional challenge, Judge Chapdelaine expressed the opinion that the
statutory amendments did not bar the respondent from presenting a Carter
defence to rebut the presumption of accuracy. He therefore assessed the
probative value of her testimony concerning her consumption of alcohol. On the
basis of what she said she had consumed, her blood alcohol level at the time
she was pulled over would have been 58 mg in 100 ml of blood.
[100]
In light of the evidence,
Judge Chapdelaine concluded that the respondent’s testimony about her
alcohol consumption was not sufficiently serious or probative to raise a
reasonable doubt. Finding that the qualified technician’s explanations were
sufficient and that the presumptions established in s. 258(1)(c)
and s. 258(1)(d.1) Cr. C. applied, he accordingly
convicted the respondent of operating a vehicle with a blood alcohol level over
the legal limit. In short, Judge Chapdelaine erred in holding that the respondent could rebut the
presumption of accuracy of s. 258(1)(c) Cr. C. by
presenting a Carter defence, but that error did not affect his
conclusion, since, when all is said and done, he did not believe the
respondent. The conviction is therefore upheld.
[101]
For these reasons, I would allow the appeal in
part and answer the constitutional questions as follows:
1.
Do ss. 258(1)(c), 258(1)(d.01)
and 258(1)(d.1) of the Criminal Code, R.S.C. 1985, c. C‑46 ,
infringe s. 7 of the Canadian Charter of Rights and Freedoms ?
Answer: No
2.
If so, is the infringement a reasonable limit
prescribed by law that can be demonstrably justified in a free and democratic
society under s. 1 of the Canadian Charter of Rights and Freedoms ?
Answer: It is not necessary to answer this question.
3.
Do ss. 258(1)(c), 258(1)(d.01)
and 258(1)(d.1) of the Criminal Code, R.S.C. 1985, c. C‑46 ,
infringe s. 11 (c) of the Canadian Charter of Rights and Freedoms ?
Answer: No
4.
If so, is the infringement a reasonable limit
prescribed by law that can be demonstrably justified in a free and democratic
society under s. 1 of the Canadian Charter of Rights and Freedoms ?
Answer: It is not necessary to answer this question.
5.
Do ss. 258(1)(c), 258(1)(d.01)
and 258(1)(d.1) of the Criminal Code, R.S.C. 1985, c. C‑46 ,
infringe s. 11 (d) of the Canadian Charter of Rights and Freedoms ?
Answer: Yes
6.
If so, is the infringement a reasonable limit
prescribed by law that can be demonstrably justified in a free and democratic
society under s. 1 of the Canadian Charter of Rights and Freedoms ?
Answer: Sections 258(1)(d.01) and 258(1)(d.1),
and s. 258(1)(c) after severance of the words “all of the following
three things —” and “, that the malfunction or improper operation resulted
in the determination that the concentration of alcohol in the accused’s blood
exceeded 80 mg of alcohol in 100 mL of blood, and that the
concentration of alcohol in the accused’s blood would not in fact have exceeded
80 mg of alcohol in 100 mL of blood at the time when the offence was
alleged to have been committed”, are justified under s. 1 of the Charter .
The reasons of
Rothstein and Cromwell JJ. were delivered by
Cromwell J. (dissenting in part) —
I. Introduction
[102]
I have had the advantage of reading the reasons
of my colleague Deschamps J. I agree with her that the conviction should be
upheld. With respect to the constitutional issues, I also agree that s. 258(1) (c)
and s. 258(1) (d.01) of the Criminal Code, R.S.C. 1985, c.
C-46 (“Cr. C.”), do not violate s. 7 of the Canadian Charter
of Rights and Freedoms and that s. 258(1) (d.1) Cr. C. does
not violate s. 11(c) of the Charter .
[103]
However, I respectfully am not persuaded that
ss. 258(1) (c), 258(1) (d.01) or 258(1) (d.1) limit the right
to be presumed innocent as guaranteed by s. 11 (d) of the Charter .
Even assuming, without deciding, that they do, I conclude that any limitation
is reasonable and demonstrably justified in a free and democratic society. I
would answer the relevant constitutional questions in the negative and allow
the appeal.
[104]
In my respectful view, the record before us
shows that the results of a breathalyzer analysis, performed in accordance with
the statutory requirements, are sufficiently reliable that it would not be
reasonable to doubt that a reading exceeding 80 mg of alcohol in 100 ml of
blood (“.08”) accurately reflects a blood alcohol level that is over .08 at the
time of testing and at the time of the alleged offence, absent evidence raising
a realistic concern about the proper functioning or operation of the device.
That in my view is the effect of the provisions and this meets the requirements
of s. 11 (d).
[105]
If I am wrong in that conclusion, I agree with
Deschamps J. to the extent that she finds that aspects of the scheme are
justified limitations, but respectfully disagree that some other aspects are
not.
II. The Statutory Scheme and the Challenged Provisions
A.
Nature of the Statutory Scheme and the
Challenged Provisions
[106]
The provisions in issue are interrelated and for
the purposes of the constitutional analysis, they must be examined in light of
their overall effect. Before turning to the provisions in detail, therefore, it
will be helpful to describe the statutory scheme and the place of the
challenged provisions in it.
[107]
To begin, I underline that the offence to which
these provisions relate is operating, or having care or control of, a motor
vehicle (or vessel or operating or assisting in the operation of an aircraft or
of railway equipment) “having consumed alcohol in such a quantity that the
concentration in the person’s blood exceeds eighty milligrams of alcohol in one
hundred millilitres of blood”: s. 253(1) (b). It is not necessary for the
Crown to prove any particular blood alcohol concentration (“BAC”). Rather, the
accused’s guilt or innocence will depend on proof that his or her BAC exceeded the
legal limit (.08) at the time of the alleged offence (hereafter “driving”).
[108]
Evidence of this element of the offence will
most often come from the results of an analysis of breath samples provided by
the accused in compliance with a demand by a peace officer. The Criminal
Code sets up a detailed scheme governing how these samples may be lawfully
obtained, how they may be analyzed, how the results may be admitted into
evidence and how the results may be challenged at trial. The provisions in
issue in this appeal fall into this last category and it is useful to place
them in the broader context of the breath analysis scheme.
[109]
In order to make a lawful demand for a breath
sample, a peace officer must have reasonable grounds to believe that a person
is committing or has, within the preceding three hours, committed an offence
under s. 253: s. 254(3). If several requirements are met, the prosecution will
have the benefit of the presumptions facilitating proof of the accuracy of the
results and of the fact that the results correspond to the accused’s BAC at the
time of driving. These requirements include time limits for taking the breath
samples, the use of approved containers for taking the samples, the use of
approved instruments for analyzing them and the operation of the instrument by
a qualified technician.
[110]
The challenged provisions which form part of
this complex statutory scheme are based on three quite straight forward ideas.
These ideas are that if all of the statutory requirements for taking and analyzing
samples are observed: (1) the breathalyzer results are reliable in the absence
of some basis in the evidence to doubt them; (2) the estimated BAC arrived at
by consumption and elimination evidence (so-called Carter evidence; see R.
v. Carter (1985), 19 C.C.C. (3d) 174 (Ont. C.A.)), is not sufficiently
reliable to be used to challenge the accuracy of breathalyzer results; and (3)
the BAC at the time of testing will not be higher than at the time of driving,
unless the accused drank a large quantity of alcohol shortly before driving or
consumed alcohol between driving and testing. It will be helpful to say a few
words about each of these ideas.
1.
Accuracy of Results
[111]
The first idea is that, provided the analysis of
breath samples is made in accordance with the statutory requirements, its
results should be accepted as accurately reflecting the accused’s BAC at the
time of testing unless there is some reason to question the proper functioning
or operation of the device. This idea is based on the demonstrated accuracy of
approved instruments when used properly by qualified technicians. The
challenged provisions require this inference of accuracy to be drawn unless
there is evidence capable of giving rise to a doubt about whether the approved
device, as a result of improper functioning or use, generated a reading that
wrongly showed the accused’s BAC as exceeding the legal limit.
[112]
More specifically, s. 258(1) (c) Cr. C.
provides that evidence of the results of the analysis is conclusive proof of
the accused’s blood alcohol limit at the time of testing. There is, therefore,
now clearly a presumption of accuracy in this provision. (This is subject to
the analysis meeting the requirements as to the taking of each sample and
analysis of it by means of an approved instrument operated by a qualified
technician. I should add that if the two samples result in different levels,
the lower is deemed to be the relevant blood alcohol level. I should also add
that the provision deems the results of the analysis to reflect the accused’s
BAC at the time of driving as well. I will return to this aspect of the
provision in a moment.)
[113]
To avoid the operation of the presumption that
the results of the analysis are accurate, the accused must point to evidence
raising a reasonable doubt about each of the following three matters: (1) that
the approved instrument was malfunctioning or was operated improperly; (2) the
malfunction or improper operation resulted in the determination that the
accused’s BAC was over .08; and (3) the accused’s BAC was not over .08 at the
time of driving. In other words, to avoid the inference that an approved device
operated by a qualified technician yielded an accurate result, the accused must
raise a doubt that, but for improper functioning or operation of the device,
the reading would have been within the legal limit.
[114]
My colleague Deschamps J. is of the view that
this limits the right to be presumed innocent guaranteed under s. 11 (d)
of the Charter and therefore must be justified under s. 1 to survive Charter
scrutiny. For reasons I will set out in my analysis, my view is that it does
not.
2.
Consumption/Elimination
Evidence
[115]
The second idea is that Carter evidence should
not be admitted to challenge the proper functioning or operation of the device.
Carter evidence seeks to establish a BAC by applying estimates of
absorption and elimination of alcohol in the blood on the basis of how much
alcohol the accused consumed. The purpose of one of the challenged provisions,
s. 258(1) (d.01), is to exclude this sort of evidence if it is directed
to showing that the device malfunctioned, was operated improperly or that the
analysis was improperly performed.
[116]
My colleague concludes that this provision, in
combination with s. 258(1) (c), limits the right to be presumed
innocent, but that it does not infringe the right to make full answer and
defence. While I agree that it does not limit the right to make full answer and
defence, my view is that it does not limit the right to be presumed innocent
either.
3.
BAC at Time of Testing and Driving
[117]
The third idea underpinning the scheme and the
challenged provisions is that the accused’s BAC at the time of driving will
generally not have been lower than at the time of testing unless the accused
drank a large amount of alcohol shortly before driving (this is often referred
to as “bolus drinking”) or consumed alcohol between driving and testing
(I will refer to this as intervening drinking). This idea is addressed in two
places in the challenged provisions and it is important to take both into
account in the constitutional analysis. In s. 258(1)(c), there is the
first “presumption of identity”. It stipulates that the BAC at the time of
testing (or the lowest of the results of multiple tests) is conclusive proof
that the BAC at the time of the offence was the same. (This of course
is subject to the tests being administered in accordance with the statutory
scheme, and to there being no reasonable doubt that the readings were over the
limit as a result of malfunction or improper operation or that the accused’s
BAC at the time of driving was in fact under .08.) The second presumption of
identity is found in s. 258(1)(d.1). It provides that, if the results of
analyses show a BAC over .08, that is proof that the BAC at the time of the
alleged offence was over .08, in the absence of evidence tending to show that
the accused’s consumption of alcohol was consistent with both a BAC over .08 at
the time of testing and under .08 at the time of the offence. This provision
addresses the possibility of bolus and intervening drinking.
[118]
As noted earlier, Carter evidence is not
admissible to show that the device malfunctioned or was operated improperly
(s. 258(1)(d.01)). Thus, such evidence cannot be used to rebut the
first presumption of identity by attacking these aspects of the accuracy of the
test results. However, and I think this is an important qualification of the
exclusion of evidence, s. 258(1)(d.1) permits Carter evidence
to rebut this second presumption of identity, provided that the evidence is
consistent with both the readings and innocence. In other words, the admission
of this evidence for the purpose of rebutting this presumption is premised on
the accuracy of the readings. While the statute is not as clear as it might be,
I understand that these two presumptions of identity are not intended to
conflict. In other words, if an accused raises a reasonable doubt by means of
Carter evidence under s. 258(1)(d.1), the presumption of identity in
s. 258(1)(c) does not continue to operate.
[119]
My colleague finds that these provisions limit
the presumption of innocence and I respectfully am of the view that they do
not.
4. Section 1 Justification
[120]
My colleague concludes that limiting the
challenge to the accuracy of the readings to evidence raising a doubt about
whether the instrument was malfunctioning or was operated improperly (the first
requirement of s. 258(1)(c)) is a justified limitation of the right to
be presumed innocent, as are the limitations on the admissibility of Carter
evidence as set out in ss. 258(1)(d.01) and 258(1)(d.1). However,
my colleague concludes that the other two requirements in s. 258(1)(c),
that is the burden on the accused to raise a doubt that the malfunctioning or
improper operation of the device resulted in the over .08 reading and that the
accused was in fact below the legal limit at the time of driving, are not
justified and therefore violate s. 11 (d) of the Charter . I
respectfully disagree. In my view, all that these provisions do is to require
that any doubt about the proper functioning or operation of the instrument be
material to the issue of whether the accused’s BAC at the time of driving was
in fact below .08. Even assuming for a moment that s. 258(1) (c) did in
fact violate s. 11 (d), this requirement of materiality would in my view
constitute a reasonable and demonstrably justified limitation on the right to
be presumed innocent.
5. Summary
[121]
To summarize, the nature of the scheme is this:
•
A reading obtained in accordance with the
statutory requirements is deemed accurate, absent some evidence suggesting that
the reading exceeded .08 as a result of instrument malfunction or improper
operation and that the accused’s BAC did not exceed .08 at the time of driving.
•
Carter evidence is
not admissible to raise a reasonable doubt that the instrument
malfunctioned, or was operated improperly. When concerned with the first
presumption of identity, it is only admissible to raise a reasonable doubt that
the accused’s BAC exceeded .08 at the time of driving. It follows that the
presumption that the BAC at the time of driving is the same as at the time of
testing cannot be rebutted by Carter evidence alone challenging the
accuracy of the reading.
•
Carter evidence is
admissible to rebut the second presumption of identity provided that the
evidence is consistent with both the BAC indicated by the results at the time
of testing and with a BAC at the time of driving which is below .08. In other
words, consumption evidence in the cases of bolus and intervening drinking is
admissible provided that it is consistent with both the test results and
innocence.
B. Overview of Conclusions
[122]
In overview, my position respecting the
constitutionality of this scheme is as follows. First, Parliament in
formulating these provisions was entitled to act on the basis of widely
accepted scientific evidence and the Court should take such evidence as is
properly before the Court into account in assessing the constitutionality of
the provisions. Second, the evidence about the reliability of the
breathalyzer analysis conducted under the statutory conditions is such that it
would be speculative to have a reasonable doubt about its accuracy in the
absence of any evidence supporting the contention that an over .08 reading
should have been an under .08 reading. On this basis, my view is that the
presumption of accuracy does not limit the right to be presumed innocent. Third,
the scientific evidence supports the view that so-called Carter evidence
is such an unreliable indicator of the accuracy of an approved device that such
evidence which is advanced for that purpose may be excluded without limiting
the right to make full answer and defence. Fourth, Parliament is
entitled to legislate to give effect to these widely accepted notions rather
than to require them to be proved by evidence in every “blowing over” trial. Finally,
if there is any limitation of the right to be presumed innocent, it is
reasonable and demonstrably justified.
III. Analysis
A.
Introduction
[123]
I agree with my colleague that none of the
challenged provisions limits the right under s. 11 (c) of the Charter
not to be compelled to testify. I also agree, although for somewhat different
reasons, that none of the provisions limits the right to make full answer and
defence as guaranteed under s. 7 of the Charter . I respectfully do not
agree with my colleague’s analysis or conclusion in relation to the presumption
of innocence guaranteed by s. 11 (d).
[124]
Taking a broad view of the respondent’s
position, there are two types of constitutional issues advanced. The first
relates to the fact that the provisions place a burden on the accused to point
to evidence giving rise to a reasonable doubt on the issues of accuracy and
identity — that is, that the test results are accurate at the time of testing
and represent the BAC at the time of driving. The second relates to the fact
that the provisions impose restrictions on the types of evidence that are
admissible to raise a reasonable doubt. As outlined earlier, Carter
evidence is not admissible to challenge the proper functioning or operation of
the device and, in order to raise a doubt about accuracy, the accused must
point to evidence that not only the device malfunctioned or operated
improperly, but as well that this resulted in the over .08 reading and
that his or her BAC in fact did not exceed .08 at the time of driving.
[125]
Although all of the provisions are challenged
under ss. 11 (d) and 7 , my view is that the constitutionality of the
provisions which address the burden of proof are best analyzed under s. 11 (d),
while those which limit the relevance of, or exclude evidence in relation to,
particular issues are best analyzed under s. 7 . Simply put, the provisions
which deal with the burden of proof most directly engage the presumption of
innocence whereas the provisions which deal with limitations on defence
evidence most directly engage the right to make full answer and defence as
guaranteed through s. 7 . I will first address s. 7 and then turn to s. 11 (d).
B.
Section 7 of the Charter
1. Section
258(1)(d.01)
[126]
Section 258(1)(d.01), it will be
remembered, is the provision which excludes Carter evidence to challenge
the accuracy of the test results. It was argued that s. 258(1)(d.01)
violates s. 7 of the Charter in two respects: first, because it
excludes logically probative defence evidence and second because it creates
hurdles which make the prospect of successfully rebutting the presumptions of
accuracy and identity contained at s. 258(1) (c) all but illusory.
[127]
Turning to the first ground of challenge, I
agree with Deschamps J.’s rejection of it. In my view, the exclusion of Carter
evidence to challenge the proper functioning or operation of the approved
instrument does not violate s. 7 of the Charter .
[128]
There is no doubt that s. 258(1)(d.01)
has the effect of restricting the use of evidence which has already been
recognized by this Court as being logically probative of the accuracy of the
test results: see, e.g., R. v. Gibson, 2008 SCC 16, [2008] 1 S.C.R. 397,
at paras. 64 and 78. The exclusion of this evidence for the purpose of raising
a reasonable doubt about the accuracy of the results therefore engages the
right to make full answer and defence as guaranteed under s. 7 . The Court has
held that it is a principle of fundamental justice that defence evidence may
only be excluded if its probative value is substantially outweighed by its
prejudicial effect on the trial process: see R. v. Seaboyer, [1991] 2 S.C.R.
577, at pp. 609-12; Gibson, at para. 64.
[129]
In holding that s. 258(1)(d.01) does not
violate this principle, Deschamps J. points out that, while consumption
evidence could logically tend to discredit the validity of breathalyzer test
results, expert testimony and reports show that its reliability for this
purpose is low as compared to the reliability of the breathalyzers themselves.
Furthermore, testimony before a Senate Committee and a study completed on
behalf of Transport Canada are to the effect that the unrestricted use of
consumption evidence leads to a number of acquittals that is disproportionate
in relation to the actual likelihood of breathalyzer inaccuracies. From this,
my colleague concludes, and I agree, that the evidence submitted before the
Court supports the conclusion that, in the absence of evidence directly putting
in doubt the proper functioning or operation of a breathalyzer, the results
obtained are reliable and consumption evidence challenging this reliability is
misleading and likely to lead to incorrect decisions. There are also
alternative and non-misleading means of challenging the accuracy of the readings.
All of this being the case, the restrictions imposed by Parliament upon the use
of consumption evidence do not run contrary to the Seaboyer principles.
[130]
Underlying this reasoning is an important
principle with which I agree. In formulating a statutory provision which
excludes relevant evidence, Parliament is entitled to act on the basis of
scientific and other evidence about the actual probative value of the evidence
in question. It is not required to act simply on the basis of how a reasonable
trier of fact might weigh the evidence in question, without the benefit of that
scientific and other evidence. In my view, the same principle applies to the
courts when they assess the constitutionality of the provision. They are
entitled to take that evidence into account provided that it is properly before
them and to uphold the provision if satisfied that it passes constitutional
muster in light of that evidence.
[131]
My colleague applies this principle in her s. 7
analysis. Although a reasonable trier of fact might not question the utility
of challenging the accuracy of the device by means of Carter evidence,
the Court is entitled to assess the constitutionality of the provision in light
of the evidence about its unreliability and propensity to produce wrong results.
As I will discuss shortly, my view is that the same principle ought to be
applied when considering the s. 11 (d) challenge.
[132]
The basis of my colleague’s s. 7 analysis is the
determination that Carter evidence is not sufficiently probative and
tends to mislead when adduced to challenge the accuracy of readings. I prefer
to base my s. 7 determination somewhat more narrowly. In my view, it is enough
to hold that the parties contesting the provision have not shown on the record
before the Court that s. 258(1)(d.01) limits in any meaningful respect
the right to make full answer and defence. In the face of the compelling
evidence presented by the Crown about the generally misleading nature of Carter
evidence in relation to the accuracy of the breathalyzer, those challenging the
exclusion of this evidence had to advance some evidence suggesting that,
despite its great potential to mislead, there remained some reason not to
restrict the use of Carter type evidence. There
is no such evidence in this record.
[133]
A key submission was that there are undetectable
errors with breathalyzer results. The argument points to hypothetical scenarios
in which irrefutable consumption evidence is presented, such as a video of an
accused not drinking throughout a night at a bar. Such irrefutable consumption
evidence would conclusively prove that he or she could not have had a BAC over
.08 at the time of taking a breathalyzer test. This, it is suggested, is an
example of a situation in which, even though there was no discernible malfunction
or improper operation of the device, an innocent person would be convicted by
virtue of the provision barring consumption evidence to challenge the accuracy
of the reading. I cannot accept this contention.
[134]
Although hypotheticals can form the basis of a Charter
challenge, they must be reasonable. In the context of the evidence
presented to us regarding the general reliability of breathalyzers, I am unable
to find that the hypotheticals submitted in support of the position that
breathalyzers may generate undetectable errors are in any way persuasive. I do
not exclude that a future challenge may be mounted with stronger evidence in
this regard, but the evidence in this case does not reach that level.
[135]
In sum, as in any constitutional challenge, an
appropriate evidentiary foundation is required. I am of the view that this
foundation is lacking in relation to s. 258(1)(d.01)’s alleged
incompatibility with s. 7 of the Charter .
[136]
I turn, therefore, to the other ground advanced
in support of the s. 7 challenge — that the provision makes a defence
“illusory”. I agree with my colleague Deschamps J.’s rejection of this
submission. I would add only that I do not understand her reasons to be
establishing any new principle in relation to the Crown’s obligation to make
disclosure to the defence.
2. Section 258(1)(c)
[137]
As noted, s. 258(1)(c) restricts evidence
in relation to the accuracy of the device to evidence that tends to show three
things: (1) that the device malfunctioned or the analysis was performed
improperly, (2) that the improper performance resulted in the determination
that the accused’s BAC exceeded .08, and (3) that the accused’s BAC was in fact
lower than .08 at the time of the offence.
[138]
In my view, the first two of these elements do
nothing more than to recognize the reality that breathalyzer readings, when
obtained under the statutory requirements, should be taken as accurate absent
some reason to think otherwise. In other words, absent some evidence to suggest
that the analysis is not accurate, a reasonable doubt based simply on the
general notion that technology may be fallible or that there is a hypothetical
possibility not founded on the evidence that the device malfunctioned or was
not operated properly would not be a rational conclusion. Thus, requiring the
inference of accuracy to be drawn absent evidence to the contrary does not
limit the right to make full answer and defence. As for the third component,
which requires some evidence that the accused’s BAC was in fact lower than .08
at the time of the offence, it does no more than set out in statutory form what
this Court has consistently held is required as a matter of logic and
relevance to rebut the presumption of accuracy.
[139]
Since at least the time of this Court’s decision
in R. v. Crosthwait, [1980] 1 S.C.R. 1089, it has been clear that an
accused wishing to rebut a presumption that the analysis was accurate when
taken had to be able to point to evidence capable of raising a doubt that
his or her blood alcohol content was below the legal limit at the time of
testing. Pigeon J. for the Court noted that “[w]hat is necessary to furnish
evidence to the contrary is some evidence which would tend to show an
inaccuracy in the breathalyzer or in the manner of its operation . . . of such
a degree and nature that it could affect the result of the analysis to the
extent that it would leave a doubt as to the blood alcohol content of the
accused person being over the allowable maximum”: p. 1101 (emphasis
added). This interpretation of what is required to rebut a presumption that the
readings were accurate has never been questioned by this Court: see, e.g., R.
v. St. Pierre, [1995] 1 S.C.R. 791, at paras. 34-42; R. v. Boucher,
2005 SCC 72, [2005] 3 S.C.R. 499, at para. 16. This principle applies in my
view to the presumption of accuracy now found in s. 258(1)(c). To
the extent that the challenged provisions require some evidence that an
accurate breathalyzer reading would have been below .08, the provisions simply
reflect what is required to constitute logically probative “evidence to the
contrary” in this setting.
C.
Section 11(d) of the
Charter
[140]
The presumption of innocence, guaranteed by s.
11 (d) of the Charter , is fundamental to our understanding of the
criminal process. As Cory J. put it in R. v. Lifchus, [1997] 3 S.C.R.
320, at para. 27: “If the presumption of innocence is the golden thread of
criminal justice then proof beyond a reasonable doubt is the silver and these
two threads are forever intertwined in the fabric of criminal law.”
[141]
From the time of this Court’s first
pronouncements, the presumption of innocence has been understood as having
three elements. First, the Crown bears the burden of proving the accused’s
guilt; second, the standard of proof required is proof beyond a reasonable
doubt; and third, the Crown has the obligation of making out a case to answer
against the accused before he or she need respond, either by testifying or by
calling evidence: see Dubois v. The Queen, [1985] 2 S.C.R. 350, at p.
357. Laskin J. concisely summed up these requirements in R. v. Appleby,
[1972] S.C.R. 303, at p. 317: “[T]he presumption of innocence gives an accused
the initial benefit of a right of silence and the ultimate benefit . . . of any
reasonable doubt.”
[142]
I will set out my analysis of the s. 11 (d)
issue under four headings: (1) an evidence-based approach to the provisions;
(2) what s. 11 (d) requires; (3) the nature and effect of the provisions;
and (4) do these provisions limit the right to be presumed innocent?
1. An Evidence-Based Approach to the Provisions
[143]
Parliament, in formulating provisions about the
burden of proof, is entitled to take into account scientific and other material
about the true probative value of certain categories of evidence. The courts,
in assessing the constitutionality of these provisions, are entitled to
consider the same sort of material, provided of course that it is properly
before the court. Thus, in considering the accuracy of breathalyzer tests
administered in accordance with the statutory requirements, the courts are
entitled to consider scientific and other material properly admitted in
relation to that issue. This material may be taken into account in deciding
whether a provision violates the presumption of innocence. So, for example, in
considering a challenge under s. 11 (d) to s. 51 of the Controlled
Drugs and Substances Act, S.C. 1996, c. 19 , which makes an analyst’s
certificate setting out the results of an analysis proof of that fact absent
evidence to the contrary, the courts would be entitled to consider the
reliability and validity of analyses carried out under the statutory
requirements.
[144]
If the courts do not apply this approach,
Parliament would be prevented from legislating that these sorts of sound
factual inferences should be drawn in the absence of some reason not to do so.
The result would be that the scientific basis for drawing these inferences
would have to be adduced in evidence in every case.
2. What Section 11(d) Requires
[145]
My colleague and I are in essential agreement
about what s. 11(d) requires. A provision limits the right to be
presumed innocent guaranteed by s. 11(d) if it either (a) relieves the
Crown of having to present a case to meet before the accused is called on to
answer or (b) creates the risk of conviction even if, without the provision,
the trier of fact could have a reasonable doubt about the accused’s guilt.
[146]
As noted earlier, the requirements of s. 11(d)
were set out in Dubois, at p. 357: “Section 11(d) imposes
upon the Crown the burden of proving the accused’s guilt beyond a reasonable
doubt as well as that of making out the case against the accused before he or
she need respond, either by testifying or by calling other evidence.”
[147]
R. v. Oakes, [1986]
1 S.C.R. 103, is another seminal case on s. 11 (d). Mr. Oakes
challenged the constitutionality of then s. 8 of the Narcotic Control Act,
R.S.C. 1970, c. N-1 (repealed), which commanded that a trier of fact infer from
an accused’s guilt for possession of narcotics that such possession was for the
purposes of trafficking in them, unless the accused established that it was not
so. The Court held that s. 8 violated s. 11 (d) of the Charter
because it required that an accused disprove, on a balance of probabilities,
the existence of a presumed fact which was an important element of the offence
charged, making it possible for an accused to be convicted despite the
existence of a reasonable doubt: at pp. 132 and 134.
[148]
The intervener Association québécoise des
avocats et avocates de la défense (AQAAD) submits that the provisions limit the
right to be presumed innocent in part because the proof of the readings
generated by the device does not “lead inexorably” to their accuracy or their
identity with the accused’s BAC at the time of driving. In my view, the “leads
inexorably” analysis is not useful in this case for reasons which I will
explain.
[149]
R. v. Vaillancourt, [1987] 2 S.C.R. 636, is the origin of the “inexorably leads” test.
The case concerned the constitutionality of then s. 213 (d) Cr. C.,
which provided that culpable homicide was murder whenever a person caused the
death of another while committing certain crimes and using or bearing a weapon
in so doing. Lamer J. began with a careful analysis of the challenged provision
in the context of the other murder provisions of the Code in order to
determine its “true nature and scope”: p. 644. He concluded that proof that
the accused did one of the acts listed in s. 213 (a) through (d)
(i.e., facilitating the commission of an offence or flight, administering a
stupefying or overpowering thing for that purpose, stopping the breath of a
human being for that purpose, or using or having a weapon during the commission
of, or flight from, an offence) “is substituted for proof of any subjective
foresight or even objective foreseeability of the likelihood of death”: p.
646. He then held that for the purposes of the challenge to s. 213 (d),
s. 7 of the Charter requires that in order to be convicted of murder,
the accused be proved to have at least objective foresight of death. In other
words, for the purposes of the analysis of that provision, the Charter
was taken to require as an essential element of the offence of murder at least
objective foresight of death: p. 654.
[150]
Having established that this was an essential
element of the offence, Lamer J. moved on to consider s. 11 (d), noting
that it requires that the Crown establish all of the essential elements of the
offence beyond a reasonable doubt including those required by s. 7 of the Charter .
He concluded, at p. 655, that “[a]ny provision creating an offence which
allows for the conviction of an accused notwithstanding the existence of a
reasonable doubt on any essential element infringes ss. 7 and 11 (d)”. As
he put it, at p. 655, “[i]t is clear . . . that what offends the presumption of
innocence is the fact that an accused may be convicted despite the existence of
a reasonable doubt on an essential element of the offence, and I do not think
that it matters whether this results from the existence of a reverse onus
provision or from the elimination of the need to prove an essential element.” Vaillancourt
did not change in any way the ultimate test for compliance with s. 11 (d)
of the Charter . In assessing s. 213 (d)’s compliance with the
presumption of innocence, the Court remained of the view that
the acid test of the constitutionality
of s. 213 is this ultimate question: Would it be possible for a conviction
for murder to occur under s. 213 despite the jury having a reasonable doubt as
to whether the accused ought to have known that death was likely to ensue? [Emphasis
in original; at p. 657.]
[151]
From this, I conclude the following. First,
before moving to the s. 11 (d) analysis, it is important to fully
understand the provision’s “true nature and scope”, assessed in its statutory
context. Second, the risk of conviction in the presence of a reasonable doubt
remains the “acid test” of s. 11 (d). This point is reinforced by the
Court’s decision in R. v. Whyte, [1988] 2 S.C.R. 3, where the Court
stated that the distinction between elements of the offence and other aspects
of the charge is irrelevant and that the “real concern is not whether the
accused must disprove an element or prove an excuse, but that an accused may be
convicted while a reasonable doubt exists. When that possibility exists, there
is a breach of the presumption of innocence”: p. 18. It is also the basis upon
which the Court held, in R. v. Schwartz, [1988] 2 S.C.R. 443, that
placing an evidentiary burden on an accused to point to evidence raising a
reasonable doubt about guilt did not, in itself, limit the right to be presumed
innocent. In order to have that effect, the evidentiary burden had to require
conviction even in the presence of a reasonable doubt: pp. 485-86. Third, the
“inexorably leads” test was used in Vaillancourt to assess whether
legislative substitution of an element for a constitutionally required
element of the offence ran afoul of s. 11 (d). It was used as a way
of testing, in those circumstances, whether there was any risk of the accused
being convicted of the offence in the presence of a reasonable doubt about the
essential element. It is in these sorts of cases that the “inexorably leads”
analysis is most useful.
[152]
Only if there is a rational basis to have a
doubt about the accused’s guilt once the elements of a presumption are
established is the presumption of innocence implicated. As stated in Lifchus,
“a reasonable doubt is a doubt based on reason and common sense which must be
logically based upon the evidence or lack of evidence” (para. 30); it does not
involve proof to an absolute certainty or proof beyond any doubt; a reasonable
doubt is not an imaginary or frivolous doubt: paras. 31 and 36. This is the
standard that must be applied when considering whether a presumption risks
requiring conviction in the presence of a reasonable doubt about guilt. What
is required is not proof to a certainty, but proof beyond any reasonable doubt
that could according to logic and common sense arise from the evidence or an
absence of evidence.
[153]
I turn then to explain what in my view is the
nature and effect of the provisions in this case and why they do not limit the
right to be presumed innocent and therefore do not require justification under
s. 1 of the Charter .
3. The Nature and Effect of the Provisions
[154]
I take a different view of s. 258(1)(c)
than does my colleague Deschamps J. This difference arises from my
interpretation of the three matters under s. 258(1)(c) in respect of
which the accused must point to some evidence raising a reasonable doubt; that
is, first, that the device malfunctioned or was operated improperly; second,
that the improper performance resulted in an over .08 reading; and third, that
the accused’s BAC at the time of driving was under .08.
[155]
The first condition requires that an accused
raise a doubt as to whether “the approved instrument was malfunctioning or was
operated improperly”. This, to me, does not require that an accused limit his
or her evidence to the precise accuracy of the results. It requires him or her
to address the breathalyzer’s functioning or the way it was operated. This
means that the first condition could be met even if a breathalyzer had a
malfunction which caused it to underestimate an individual’s BAC, or if
a qualified technician failed to follow standard procedure in operating a
breathalyzer, but that his shortcomings nonetheless had no effect on the
integrity of the results. Indeed, on plain reading, the first condition is not
concerned with the consequences of a breathalyzer malfunction or improper
operation; it is only concerned with the fact that it happened.
[156]
The consequences on the other hand are
scrutinized when examining whether the second condition to rebutting the
presumptions is met (raising a doubt that the malfunction or improper operation
resulted in the determination that the accused’s BAC was over .08). It requires
that an accused raise a doubt that there is a link between the malfunction or
improper operation, whatever it is, and the over .08 result. What this
requires, in my view, is evidence that, but for the malfunction or improper
operation, it is reasonably possible that the breathalyzer would not have
produced an over .08 result. This avoids making the Crown lose the
benefit of the presumptions simply because, for example, a malfunction caused a
breathalyzer to underestimate an individual’s BAC or because of an
immaterial operation error. It also ensures that only those results
whose reliability is put in doubt to the point of making it unsafe to rely
upon them to convict an accused will be given any credence. In short, this
simply requires that the malfunction or improper operation be material to the
question of whether the accused’s BAC was over the legal limit.
[157]
When the first and second conditions are
interpreted as I suggest, the third condition (raising a doubt that the
accused’s BAC was not over .08 at the time of driving) loses much of its
significance. Once an accused successfully raises a doubt that a breathalyzer
malfunction or its improper operation caused it to generate an over .08 result,
a trier of fact has logically no choice but to have a doubt that the accused’s
BAC at the time of testing was below .08 as well. And if that is the case, then
a trier of fact equally has, in my view, no other choice but to conclude that
there is a doubt that the accused’s BAC was over .08 at the time of driving, as
he would have no reliable evidence upon which one could extrapolate the
accused’s BAC at the time of driving. In that sense, it may be said that the
second and third conditions are intimately tied to one another, such that the
satisfaction of the latter will almost inevitably flow naturally from the
satisfaction of the former.
[158]
I return to the nature of the presumptions in s.
258(1)(c). Taken at face value, the section deems the results of the
analysis to be accurate (the presumption of accuracy) and identical to the BAC
at the time of driving (the first presumption of identity). The true nature and
effect of these provisions, however, are not what they appear to be at first
glance.
[159]
The presumption of accuracy in s. 258(1)(c),
on its own, has no effect on proof of the offence. It has that effect only when
coupled with the presumption of identity. This is so, of course, because the
offence is having a BAC of more than .08 at the time of driving, not having a
BAC at that level at the time of testing. In relation to the proof of the
offence, the effect of the provision is thus twofold: a reading of over .08 is
deemed to be accurate and, secondly, a person with such a BAC at the time of
testing is deemed to a have a BAC of over .08 at the time of driving. While
the provision specifies that the reading is to be taken as exactly accurate and
to correspond exactly to the BAC at time of driving, this is not its effect,
having regard to the definition of the offence.
[160]
To rebut the accuracy of the initial result, the
accused must raise a doubt about the three matters I mentioned earlier: that
the device malfunctioned or the analysis was performed improperly, that this
resulted in the determination that the person’s BAC was over .08 and that the
BAC was in fact below .08. The effect of this is that a reading of over .08 is
deemed accurate unless the accused can point to evidence that raises a doubt
that there was a problem with the testing or analysis resulting in the over .08
reading.
[161]
(I pause here to note that we need not consider
further the limitation in s. 258(1)(d.1) and 258(1)(d.01) on
the use of Carter evidence to rebut this presumption. In my analysis of
the s. 7 challenge, I have concluded that such evidence is so unreliable in
comparison to the reliability of the breathalyzer that it may properly be
excluded in relation to that issue. That conclusion, in my view, also resolves
any challenge to the exclusion of Carter evidence in relation to the
presumption of innocence. As I see it, one cannot conclude, on the one hand,
that Carter evidence is so unreliable and prejudicial to accurate fact
finding that the defence may be prevented from presenting it, but then
conclude, on the other hand, that excluding it offends the presumption of
innocence because such evidence could support a reasonable doubt about the
accuracy of the results. If presenting the evidence is not a valid way of
challenging the accuracy of the readings for the purposes of s. 7 , excluding
the evidence in an effort to raise a reasonable doubt cannot offend s. 11 (d).
The s. 11 (d) analysis, like the s. 7 analysis, must be based on the
true probative value of the excluded evidence.)
[162]
The situation is more complicated in relation to
the nature of the first presumption of identity — that is, that the readings at
the time of testing reflect the BAC at the time of driving. Once again, while
that is the form of the provision, we must bear in mind that the offence is not
having a particular BAC, but having a BAC over .08. We must also bear in mind
that it is generally known that BAC constantly changes as alcohol is absorbed
and eliminated. Parliament should not be taken to have legislated so as to
require that the opposite of this incontestable fact be presumed. It is in my
view more realistic to describe the effect of the provision as presuming that a
person who has a BAC of over .08 at the time of testing would not have a
lower BAC at the time of driving. This description of the provision’s
effect is reinforced by the second presumption of identity found in
s. 258(1)(d.1) as I will discuss shortly.
[163]
An accused can avoid the operation of the first
presumption of identity in two ways. First, he or she can raise a doubt about
the accuracy of the initial result, as described above. Obviously if there is a
doubt about the accuracy of the initial result, neither the presumption of
accuracy nor the first presumption of identity can operate. Secondly, the
accused can attempt to rebut the second presumption of identity by presenting Carter
evidence, provided that it is consistent with both the accuracy of the initial
result and with a BAC at the time of driving under .08. As I explained earlier,
this permits evidence of bolus or intervening drinking. If the second
presumption of identity does not operate, neither does the first.
[164]
To sum up, the true nature and effect of the
provisions is this. If the result of the analysis shows a BAC over .08, the
BAC of the accused is presumed to be over .08 in the absence of evidence raising
a doubt that, but for malfunction or improper operation, the result should in
fact have been under .08. If there is no doubt about the accuracy of the
initial result, it is presumed that the accused’s BAC at the time of driving
was not lower than the BAC at the time of testing, absent evidence that is both
consistent with the test result and a BAC below .08 at the time of driving.
[165]
Understood in this way, the provisions are
simply rules about the burden of proof. They are not presumptions with basic
facts in the traditional sense. The presumption of accuracy does not depend
simply on the “deduction that may logically and reasonably be drawn” from the
test result with regard to the actual BAC of the accused at the time of
driving. The presumption rather reflects the demonstrated accuracy of the
breathalyzer analysis conducted under the statutory conditions. Similarly, the
first presumption of identity does not depend on logical deduction that the BAC
at the time of driving is identical to that at the time of testing. There of
course could be no such logical deduction because it is generally known that
this cannot be the case. Rather, the presumption depends on the demonstrated
fact that the accused’s BAC does not go up between the time of driving and the
time of testing, absent the unusual situations of bolus or intervening
drinking. My view, therefore, is that these presumptions cannot be analyzed for
constitutional purposes as if they were mere factual presumptions that depend
only on the force of the logical deduction from the proved facts that the
presumed fact exists.
4. Do
These Provisions Limit the Right to Be Presumed Innocent?
[166]
In light of the true nature and effect of the
provisions, my view is that the questions in relation to whether these
provisions limit the right to be presumed innocent are these:
1.
If the results of an analysis which complied
with the statutory requirements show that an accused’s BAC at the time of
testing was over .08, would it be reasonable for a trier of fact to have a
doubt that the accused’s BAC was in fact over .08 at that time, in the absence
of evidence raising a doubt about whether improper operation or malfunctioning
of the device produced a result above point .08?
2.
If an accused’s BAC was shown to be above .08 at
the time of analysis, would it be reasonable for a trier of fact to have a
doubt that the accused’s BAC was in fact over .08 at the time of driving in the
absence of evidence to the contrary?
[167]
In my view, the answer to both of these
questions is “no”.
[168]
I turn first to the presumption of accuracy. The
first two matters set out as necessary to raise a reasonable doubt are that the
approved instrument was malfunctioning or was operated improperly and that this
resulted in the determination that the accused’s BAC exceeded the legal limit.
There is strong support for the view that a breathalyzer test conducted
according to the statutory requirements will yield a reliable and accurate
result. Of course, this is not to say that the devices are infallible; but that
is not what the presumption assumes. It seems to me that, given the evidence
about the accuracy of the results, it would be unreasonable to have a doubt on
this subject unless there is some basis in the evidence or the absence of
evidence to ground a doubt about the proper functioning or operation of the
device. In other words, absent some basis to suggest that something may have
gone wrong with the breathalyzer or during the testing process, it would be
unreasonable for a trier of fact not to consider the breathalyzer results to be
reliable. In requiring some evidence tending to show improper functioning or
operation, s. 258(1)(c) simply enacts common sense in light of
accepted scientific fact.
[169]
In my view, Parliament is entitled to legislate
this rather than require the evidence to be called in every “blowing over”
prosecution. There is no risk of conviction in the presence of a reasonable doubt
about guilt.
[170]
The third aspect of s. 258(1)(c)
requires some evidence tending to raise a doubt that the accused’s BAC in fact
did not exceed .08 at the time of the offence. I note to begin that as I have
discussed earlier, if there is doubt about the first two matters, it is hard to
conceive of why there would not also be a doubt about this third aspect. In
any event, this Court has decided that in order to constitute evidence to the
contrary as a matter of logic and relevance, that evidence must tend to raise a
doubt that the BAC in fact did not exceed .08 at the time of testing: Crosthwait.
It follows that this third aspect of the provision simply translates that
requirement for materiality into the consideration of whether the device
functioned or was operated improperly. The provision does not create any risk
of conviction in the presence of a reasonable doubt about guilt. The provision
simply requires that in order for there to be a reasonable doubt about whether
the BAC reading was over .08, there must be some basis in the evidence to think
that the device either malfunctioned or was improperly operated in a material
respect.
[171]
I therefore conclude that the presumption of
accuracy in s. 258(1)(c) does not create a risk of conviction in the
presence of a reasonable doubt about guilt. It therefore does not limit the
right to be presumed innocent and there is no need to consider whether any
limitation is justified under s. 1 .
[172]
I turn then to the presumptions of identity in
ss. 258(1)(c) and 258(1)(d.1). In my view, there is
overwhelming evidence that a breathalyzer test administered in accordance with
the statutory requirements and which reveals an over .08 result is a reliable
indication that the accused had a BAC which was equal to or higher than that at
the time of driving: A.R., vol. 21, at pp. 100-102.
[173]
As the report of Jacques Tremblay, filed in this
case, stipulates, an individual’s BAC rises steadily as one consumes alcohol ([TRANSLATION] “absorption stage”), stabilizing itself rapidly after the last
consumption. The BAC thereafter remains more or less stable for a period
estimated at anywhere between 0 and two hours ([TRANSLATION] “plateau stage”). This stability is due to the fact that, in the
presence of a regular rhythm of alcohol intake, the body’s rate of alcohol
elimination is more or less equal to its rate of alcohol absorption during this
period, such that the alcohol still being digested by the body after the last
consumption has little to no effect on the individual’s BAC. It is only after
that plateau period that the BAC decreases steadily until completely eliminated
by the body ([TRANSLATION] “elimination
stage”). As such, in cases where individuals, as usual, consume alcohol at a
regular rate, a test taken within two hours of their last consumption will
usually reveal a BAC that is either identical or lower than that which he had
at the time of that consumption. This also leads to the conclusion that a
person arrested and asked to submit himself or herself to a breathalyzer test
will, when having consumed alcohol at a normal rate of consumption, either be
in the plateau stage or the elimination stage at the time of the test, and
thus, have a BAC that is either identical to or lower than when he was driving.
Bearing in mind that the offence is having any BAC above .08 and given that I
have concluded above that the presumption of accuracy is not objectionable,
there is no infringement of the right to be presumed innocent by deeming that the
BAC at the time of testing is the same as at the time of driving. Once again,
Parliament has simply legislated well-established facts so that they do not
have to be proved in every case. There is no risk of conviction on the basis of
a reasonable doubt that has a basis in common sense and logic in the evidence
or the absence of evidence.
[174]
In my opinion, a doubt about the presumptions of
identity based on bolus or intervening drinking would be speculative, absent
evidence supporting the fact that one or the other of those scenarios had
actually occurred. I note that the Ontario Court of Appeal has ruled in several
cases that triers of fact are entitled to draw an inference that “normal people
do not consume large quantities of alcohol shortly before, or while, driving”,
in the absence of evidence putting in doubt the soundness of drawing this
inference in a particular case: R. v. Bulman, 2007 ONCA 169, 221 O.A.C.
210, at para. 13. See also R. v. Grosse (1996), 29 O.R. (3d) 785; R.
v. Hall, 2007 ONCA 8, 83 O.R. (3d) 641; R. v. Paszczenko, 2010 ONCA
615, 103 O.R. (3d) 424. I would apply the same principle to drinking after
driving but before the breathalyzer test is administered. Even if it might be
said that a reasonable doubt could exist about drinking between the time of
driving and testing, placing an evidentiary burden on the accused to simply
point to evidence capable of raising a doubt on this issue would readily pass
the justification requirement under s. 1 of the Charter . The fact of
post‑driving drinking is peculiarly in the knowledge of the accused and
it would be unduly onerous to require the prosecution to negate this rather
unusual possibility in every case even when it had no foundation in the
evidence.
[175]
I am also of the view that the challenged provisions
do not relieve the Crown of its obligation to present a case to meet before the
accused is called on to answer. Where an over .08 breathalyzer test result is
obtained in accordance with the statutory requirements, a trial judge cannot,
in my opinion, conclude that there is no evidence upon which he could
reasonably convict an accused.
5. Section 1 of the Charter
[176]
I turn to the s. 1 justification on the
assumption that my colleague, Deschamps J. is correct that the second and third
requirements under s. 258(1)(c) limit the right to be presumed
innocent. These are the requirements to point to evidence raising a doubt that
the malfunctioning or the improper operation of the device resulted in an over
.08 reading and about whether the accused’s BAC at the time of driving was
under .08. My view is that any limitation is reasonable and demonstrably
justified.
[177]
As I explained above, I read the requirements in
s. 258(1)(c) differently than does my colleague. The second requirement
— to point to evidence raising a doubt that the malfunctioning or the improper
operation of the device resulted in an over .08 reading — simply requires the
evidence to be material to the issue of whether the accused had a BAC over the
legal limit. Requiring evidence to be material to that issue, to my way of
thinking, easily passes all of the steps of the Oakes analysis. The
provision simply prevents evidence being adduced that is not logically
probative of the accused’s innocence. Without this second requirement, evidence
that the device consistently underestimates the true BAC would rebut the
presumption even though there is no realistic possibility that the accused’s
BAC was lower than the results obtained from the device.
[178]
As for the third requirement — that the accused
point to evidence raising a doubt that the accused’s BAC at the time of driving
was under .08 — I find it does not impose any significant burden that is not
already discharged by meeting the second requirement. As I explained earlier,
I find it hard to imagine how there could be a doubt about whether the device
produced a result over .08 as a result of a malfunction or improper operation
and yet there would not inevitably also be a doubt that the accused’s BAC was
in fact under .08.
[179]
My conclusion is that the provisions which my
colleague would hold to limit the right to be presumed innocent readily pass
the s. 1 justification and should be upheld as reasonable limits demonstrably
justified in a free and democratic society.
D.
Conclusion
[180]
I would uphold the conviction entered by Judge
Chapdelaine against the respondent. I would however allow the appeal with
respect to the constitutional questions and answer them as follows:
1. Do ss. 258(1)(c), 258(1)(d.01) and 258(1)(d.1)
of the Criminal Code, R.S.C. 1985, c. C-46 , infringe s. 7 of the Canadian Charter of Rights and Freedoms ?
Answer: No.
2. If so, is the infringement a reasonable limit prescribed by
law that can be demonstrably justified in a free and democratic society under
s. 1 of the Canadian Charter of Rights and Freedoms ?
Answer: It is not necessary to answer this question.
3. Do ss. 258(1)(c), 258(1)(d.01) and 258(1)(d.1)
of the Criminal Code, R.S.C. 1985, c. C-46 , infringe s. 11 (c) of the Canadian Charter of Rights and
Freedoms ?
Answer: No.
4. If so, is the infringement a reasonable limit prescribed by
law that can be demonstrably justified in a free and democratic society under
s. 1 of the Canadian Charter of Rights and Freedoms ?
Answer: It is not necessary to answer this question.
5. Do ss. 258(1)(c), 258(1)(d.01) and 258(1)(d.1)
of the Criminal Code, R.S.C. 1985, c. C-46 , infringe s. 11 (d) of the Canadian Charter of Rights and
Freedoms ?
Answer: No.
6. If so, is the infringement a reasonable limit prescribed by
law that can be demonstrably justified in a free and democratic society under
s. 1 of the Canadian Charter of Rights and Freedoms ?
Answer: It is not necessary to answer this question.
APPENDIX
Criminal
Code, R.S.C. 1985,
c. C‑46
258. (1) In
any proceedings under subsection 255(1) in respect of an offence committed
under section 253 or subsection 254(5) or in any proceedings under
any of subsections 255(2) to (3.2),
. . .
(c) where samples of the breath of
the accused have been taken pursuant to a demand made under subsection 254(3),
if
(i) [Repealed before
coming into force, 2008, c. 20, s. 3]
(ii) each
sample was taken as soon as practicable after the time when the offence was alleged
to have been committed and, in the case of the first sample, not later than two
hours after that time, with an interval of at least fifteen minutes between the
times when the samples were taken,
(iii) each
sample was received from the accused directly into an approved container or
into an approved instrument operated by a qualified technician, and
(iv) an
analysis of each sample was made by means of an approved instrument operated by
a qualified technician,
evidence
of the results of the analyses so made is conclusive proof that the
concentration of alcohol in the accused’s blood both at the time when the
analyses were made and at the time when the offence was alleged to have been
committed was, if the results of the analyses are the same, the concentration
determined by the analyses and, if the results of the analyses are different,
the lowest of the concentrations determined by the analyses, in the absence of
evidence tending to show all of the following three things — that the approved
instrument was malfunctioning or was operated improperly, that the malfunction
or improper operation resulted in the determination that the concentration of
alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of
blood, and that the concentration of alcohol in the accused’s blood would not
in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time
when the offence was alleged to have been committed;
. . .
(d.01) for greater certainty,
evidence tending to show that an approved instrument was malfunctioning or was
operated improperly, or that an analysis of a sample of the accused’s blood was
performed improperly, does not include evidence of
(i) the
amount of alcohol that the accused consumed,
(ii) the
rate at which the alcohol that the accused consumed would have been absorbed
and eliminated by the accused’s body, or
(iii) a
calculation based on that evidence of what the concentration of alcohol in the
accused’s blood would have been at the time when the offence was alleged to
have been committed;
(d.1) if samples of the accused’s breath or a sample of the
accused’s blood have been taken as described in paragraph (c) or (d)
under the conditions described in that paragraph and the results of the
analyses show a concentration of alcohol in blood exceeding 80 mg of
alcohol in 100 mL of blood, evidence of the results of the analyses is
proof that the concentration of alcohol in the accused’s blood at the time when
the offence was alleged to have been committed exceeded 80 mg of alcohol
in 100 mL of blood, in the absence of evidence tending to show that the
accused’s consumption of alcohol was consistent with both
(i) a
concentration of alcohol in the accused’s blood that did not exceed 80 mg
of alcohol in 100 mL of blood at the time when the offence was alleged to
have been committed, and
(ii) the
concentration of alcohol in the accused’s blood as determined under paragraph (c)
or (d), as the case may be, at the time when the sample or samples were
taken;
Appeal
allowed in part, Rothstein
and Cromwell JJ.
dissenting in part.
Solicitor
for the appellants: Attorney general of Québec, Montréal.
Solicitors
for the respondent: Fréchette, Blanchette, Sherbrooke.
Solicitor
for the intervener the Attorney General of Canada: Attorney general of
Canada, Montréal.
Solicitor
for the intervener the Attorney General of Ontario: Attorney General
of Ontario, Toronto.
Solicitor
for the intervener the Attorney General of Manitoba: Attorney
General of Manitoba, Winnipeg.
Solicitor
for the intervener the Attorney General of British Columbia: Attorney
General of British Columbia, Victoria.
Solicitor
for the intervener the Attorney General of Alberta: Attorney General
of Alberta, Edmonton.
Solicitors for the intervener Barreau du Québec: LaBrie,
Gariépy & Associés, Longueuil.
Solicitors
for the intervener Association québécoise des avocats et avocates de la
défense: Downs Lepage, Montréal.
Solicitors for the intervener the Criminal Lawyers’ Association of
Ontario: Ducharme Fox, Windsor; Burstein Bryant, Toronto.
Solicitors for the
intervener the Criminal Trial Lawyers’ Association: Gunn Law Group,
Edmonton.