SUPREME
COURT OF CANADA
Between:
Robert Albert
Gibson
Appellant
and
Her Majesty the
Queen
Respondent
‑ and ‑
Attorney General
of Ontario
Intervener
and between:
Martin Foster
MacDonald
Appellant
and
Her Majesty the
Queen
Respondent
‑ and ‑
Attorney General
of Ontario
Intervener
Coram: McLachlin C.J. and Bastarache, Binnie, LeBel,
Deschamps, Fish, Abella, Charron and Rothstein JJ.
Reasons for
judgment:
(paras. 1 to 33)
Reasons
concurring in
the result:
(paras. 34 to 82)
dissenting
reasons:
(paras. 83 to 99)
|
Charron J. (Bastarache, Abella and Rothstein JJ.
concurring)
LeBel J. (McLachlin C.J. and Fish J. concurring)
Deschamps J. (Binnie J.
concurring)
|
______________________________
R. v. Gibson, [2008] 1 S.C.R. 397, 2008 SCC 16
Robert Albert Gibson Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Ontario Intervener
‑ and ‑
Martin Foster MacDonald Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Ontario Intervener
Indexed as: R. v. Gibson
Neutral citation: 2008 SCC 16.
File Nos.: 31546, 31613.
2007: October 15; 2008: April 17.
Present: McLachlin C.J. and Bastarache, Binnie, LeBel,
Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for nova scotia
on appeal from the court of appeal for alberta
Criminal law — Evidence — Operation of vehicle with
blood alcohol level exceeding legal limit — Criminal Code providing that,
absent evidence to contrary, breathalyzer reading above 80 mg of alcohol per
100 ml of blood is proof that blood alcohol concentration exceeded legal limit
at time of driving — Expert opinion evidence placing accused’s blood alcohol
concentration in range that straddled legal limit at time of driving — Whether
expert evidence of alcohol elimination rates in general population and
“straddle evidence” can rebut presumption — Whether expert evidence of post‑offence
testing of alcohol elimination rate of accused can rebut presumption — Criminal
Code, R.S.C. 1985, c. C‑46, s. 258(1) (d.1).
The accused, G and M, were charged with driving
"over 80" after failing a breathalyzer test. The first breath sample
taken from G provided a reading of 120 mg and the second a reading of 100 mg.
The two breath samples taken from M each produced a reading of 146 mg. At their
respective trials, G and M testified as to their pattern of drinking at the
material time and adduced expert evidence to rebut the presumption in
s. 258(1) (d.1) of the Criminal Code that the breathalyzer
readings provided proof that their blood alcohol concentrations exceeded the
legal limit at the time of driving. The expert opinion evidence concerning the
accused’s blood alcohol concentration at the time of driving was expressed in
terms of a range of possible blood alcohol concentrations, given the amount of alcohol
consumed, the pattern of drinking, and the accused’s age, height, weight and
gender. In each case, the range of hypothetical blood alcohol concentrations
"straddled" the legal limit of 80 mg. G’s expert testified that, if
the pattern of consumption described by G was accurate, his blood alcohol
concentration would have been between 40 and 105 mg at the time of driving.
M’s expert provided a range of between 64 and 109 mg. In addition, the expert
called on behalf of M tested his elimination rate more than six months after
the alleged offence. On the basis of this test, the expert determined that M’s
elimination rate was 18.5 mg per hour and that M’s blood alcohol concentration
would have been 71 mg when he was stopped by the police.
The trial judge accepted both the evidence of G’s
consumption and the expert evidence. He was left with a reasonable doubt that
G’s blood alcohol content had exceeded the legal limit, and acquitted him. The
Supreme Court upheld the acquittal. The Court of Appeal held that
evidence of a hypothetical person’s elimination rates was not capable of
rebutting the presumption in s. 258(1) (d.1), set aside the
acquittal and ordered a new trial.
The trial judge convicted M on the basis that the expert
evidence did not tend to show that his blood alcohol content had not exceeded
80 mg. Both the Court of Queen’s Bench and the Court of Appeal upheld the
conviction.
Held (Binnie and
Deschamps JJ. dissenting): The appeals should be dismissed.
Per Bastarache, Abella,
Charron and Rothstein JJ.: Straddle evidence constitutes an attempt to defeat
the statutory presumption in s. 258(1) (d.1) and, as such, does not
tend to show that the accused’s blood alcohol concentration did not exceed the
legal limit at the time of the alleged offence. Straddle evidence merely
confirms that the accused falls into the category of drivers targeted by
Parliament — namely, those who drive having consumed enough alcohol to reach a
blood alcohol concentration exceeding 80 mg. Parliament, in creating this
offence, clearly regarded driving with this level of consumption as posing
sufficient risk to warrant criminalization. It is therefore not enough to
show, based on evidence about the accused’s pattern of consumption of alcohol
during the relevant time period, that the accused consumed enough alcohol to
exceed the legal limit, albeit in a quantity that would place him within a
range that may be somewhat different from that which could be extrapolated from
the breathalyzer reading. It is clear from the wording of s. 258(1) (d.1)
that the presumption can only be rebutted by evidence that tends to show that
the accused’s blood alcohol concentration did not exceed the legal limit and,
hence, that the accused was not in the targeted category of drivers. In order
to displace the presumption, the evidence must show, therefore, that based on
the amount of alcohol consumed, the accused’s blood alcohol concentration would
not have been above the legal limit at the time of driving, regardless of how
fast or slowly the accused may have been metabolizing alcohol on the day in
question. The court need not be convinced of that fact; it is sufficient if
the evidence raises a reasonable doubt. Furthermore, because it is
scientifically undisputed that absorption and elimination rates can vary from
time to time, nothing is really gained by post‑offence testing of an
accused’s elimination rate. It is because of these inherent variations in
absorption and elimination rates that the presumption of identity is needed in
the first place. In order to facilitate proof of the offence, the presumption
treats all persons as one person with a fixed rate of elimination and
absorption. Short of reproducing the exact same conditions that existed at the
time of the offence, assuming this is even possible, any expert opinion
evidence based on actual tests would have to be given with the qualification
that absorption and elimination rates vary from time to time, and therefore the
accused’s blood alcohol level at the material time cannot be measured with
precision. Ultimately, the best evidence an expert can provide is likely to be
a range reflecting average elimination rates. The Court should not interpret
this legislative scheme, which is intended to combat the social evils resulting
from drinking and driving, as requiring accused persons, some of whom may well
be battling with alcohol addiction, to submit to drinking tests in order to
make out a defence. [3] [6‑8]
In the present appeals, the expert opinion evidence, in
placing the accused’s blood alcohol concentration both above and below the
legal limit at the time of driving depending on the accused’s actual rate of
absorption and elimination on the day in question, did no more than confirm
that the accused fell within the category of drivers targeted by Parliament and
did not rebut the statutory presumption under s. 258(1) (d.1).
Consequently, M’s conviction is upheld and, in G’s case, the order for a new
trial is confirmed. [33]
Per McLachlin C.J. and
LeBel and Fish JJ.: Both expert evidence of alcohol elimination rates in the
general population and straddle evidence can be relevant and are therefore not
inherently inadmissible for the purpose of rebutting the presumption in
s. 258(1) (d.1). However, the probative value of evidence based on
rates in the general population will often be so low that it fails to raise a
reasonable doubt that the accused had a blood alcohol content exceeding 80 mg.
Not only do elimination rates vary between individuals, but each individual’s
rate will vary depending on such factors as the amount of food consumed, the
type of alcohol consumed and the pattern of consumption. Thus, evidence that
the blood alcohol content of an average person of the sex, age, height and
weight of the accused would have been at a certain level or within a certain
range will rarely be sufficiently probative to raise a reasonable doubt about
the presumed fact that the actual blood alcohol content of the accused at the
time of the offence exceeded the legal limit. Expert evidence of the
elimination rate of the accused as established by a test is potentially more
probative of the blood alcohol content he or she had while driving than
evidence based on elimination rates in the general population. However,
because an individual’s elimination rate varies over time based on a number of
factors, the probative value of evidence based on the elimination rate of the
accused will logically depend on the number of variables controlled for in the
elimination rate test. Evidence of the elimination rate of the accused at the
time of the offence would be more likely to rebut the presumption in
s. 258(1) (d.1) than mere evidence of the elimination rate of the
accused under testing conditions. [34] [67‑68]
Straddle evidence will rarely suffice on its own to
raise a reasonable doubt as to the accuracy of a breathalyzer result. Once
straddle evidence is admitted, it will be left to the trier of fact to
determine whether that evidence, considered in light of the evidence as a
whole, raises a reasonable doubt as to the accuracy of the breathalyzer
result. Straddle evidence and the other evidence relied on by the defence will
warrant an acquittal only if it tends to prove that the blood alcohol level of
the accused at the relevant time did not exceed 80 mg. A wide straddle range
cannot be considered evidence to the contrary of the breathalyzer result, since
it does not tend to prove that the accused was at or under the legal limit.
Similarly, a range that is overwhelmingly above the legal limit may be of
limited probative value. The more that is known about probabilities within the
range, the more probative the evidence may be. To foreclose the possibility of
straddle evidence raising a reasonable doubt and rebutting the presumption in
s. 258(1) (d.1) would inappropriately restrict the ability of an
accused to defend him‑ or herself. The wording of the provision gives no
indication of a legislative intent to render the fictional presumption absolute
or irrebuttable in practice. It also leaves open the possibility of
discrepancies between test results obtained at the time of testing and the
blood alcohol content of the accused at the time of the offence. A mandatory
presumption that requires the accused to raise a reasonable doubt about a fact
that has not been proved by the Crown may prima facie be a limit on the
presumption of innocence protected by s. 11 (d) of the Canadian
Charter of Rights and Freedoms that needs to be justified under s. 1 .
[73] [75‑76]
In these cases, the expert’s straddle evidence adduced
by G is sufficiently relevant to be admissible and is not without foundation.
However, given that it is based on elimination rates in the general population,
consists of a wide range of values and includes values significantly above the
legal limit, it does not, as is required to rebut the presumption in
s. 258(1) (d.1), raise a reasonable doubt that G’s blood alcohol
content actually exceeded 80 mg. Although the expert evidence adduced by
M was also admissible, it would have been unreasonable for the trial judge to
find that the straddle evidence indicating a range of 64 to 109 mg was capable
of raising a reasonable doubt. The evidence of M’s own elimination rate, which
supported a blood alcohol content of 71 mg, was also rejected by the trial
judge because the test used to determine the elimination rate had not
sufficiently approximated the conditions at the time of the alleged offence,
which limited its relevance to the fact M was seeking to prove. There is no
reason to interfere with that finding. In the result, M’s conviction is upheld
and, in G’s case, the order for a new trial is confirmed. [78‑79] [81‑82]
Per Binnie and Deschamps
JJ. (dissenting): Evidence that tends to show that the blood alcohol
concentration of the accused at the time of interception did not exceed the
legal limit based on an elimination rate of 15 mg per hour, or on the actual
elimination rate of the accused according to test results, will suffice to
raise a reasonable doubt. There is a body of scientific evidence that shows
that members of the general population tend to eliminate alcohol at a rate
faster than 15 mg per hour. It would therefore be speculative to assume,
without any evidence, that a given accused is different from the majority of
the general population and is a slow eliminator. Unless the scientific
information that supports using 15 mg as a marker is contradicted by persuasive
expert evidence, a judge should acquit if the prevailing direction of the
straddle range favours a level that does not exceed the legal limit. The
prevailing direction approach affords the accused a defence that is
sufficiently complete without requiring post‑offence testing. As a
matter of judicial policy, requiring accused persons to submit to drinking
tests should not be encouraged by the courts. Nevertheless, post‑offence
testing is not, per se, irrelevant or lacking in probative value. Just
as evidence of average elimination rates in the general population is not
discredited simply because such rates do not replicate the situation of an
accused, evidence of post‑offence testing designed to determine the
elimination rate of an individual accused should not be rejected for that
reason alone. An elimination rate based on test results may constitute
evidence that tends to show that an accused eliminates alcohol at a rate faster
than 15 mg per hour. Although the weight given to post‑offence testing
may depend on a number of variables, this should not be interpreted as
requiring replication of the conditions of absorption. [84] [90‑91]
In G’s case, the expert for the defence testified that
G’s blood alcohol content while he was driving would, based on average
elimination rates, have been between 40 and 105 mg. There is agreement with
the trial judge’s finding that the prevailing direction of the range favoured a
level that did not exceed the legal limit, and that this was sufficient
evidence for an acquittal. Therefore, G’s acquittal should be restored.
[93]
In the case of M, the Crown failed to undermine the
weight of evidence of post‑offence testing by either cross‑examining
the expert or adducing contradictory expert evidence at trial. Although
M’s elimination rate according to the expert’s test may not be the same as his
rate on the day of the offence, nothing in the record suggests that any
variation between the actual and tested elimination rates would be material or
would cast doubt on the usefulness of the expert evidence. Nevertheless, the
expert’s post‑offence tests can constitute evidence to the contrary only
if M’s consumption scenario is found to be credible. Here, the trial judge
made no express findings on this issue. He rejected the expert’s evidence on
the basis that the midpoint of the straddle range was above the legal limit and
that the food and the type of alcohol consumed had not been taken into account
in the post‑offence tests. As he had dismissed the expert testimony, the
trial judge found M guilty without making any findings concerning his
credibility. Since this Court cannot enter an acquittal, as a finding on M’s
credibility would have had to be made first, a new trial should be ordered on
the charge of driving with a blood alcohol level exceeding the legal limit.
[98‑99]
Cases Cited
By Charron J.
Distinguished: R. v.
Boucher, [2005] 3 S.C.R. 499, 2005 SCC 72; referred to: R. v.
Heideman (2002), 168 C.C.C. (3d) 542; R. v. Gibson (1992), 72 C.C.C.
(3d) 28; R. v. St. Pierre, [1995] 1 S.C.R. 791; R. v. Proudlock,
[1979] 1 S.C.R. 525; R. v. Moreau, [1979] 1 S.C.R. 261; R. v. Noros‑Adams
(2003), 175 Man. R. (2d) 68, 2003 MBQB 130; R. v. Gaynor (2000), 272
A.R. 108, 2000 ABPC 104; R. v. Déry, [2001] Q.J. No. 3205 (QL).
By LeBel J.
Distinguished: R.
v. Boucher, [2005] 3 S.C.R. 499, 2005 SCC 72; approved: R. v.
Dubois (1990), 62 C.C.C. (3d) 90; considered: R. v. Heideman
(2002), 168 C.C.C. (3d) 542; referred to: R. v. Phillips (1988),
42 C.C.C. (3d) 150; R. v. St. Pierre, [1995] 1 S.C.R. 791; R. v.
Proudlock, [1979] 1 S.C.R. 525; R. v. Mohan, [1994] 2 S.C.R. 9; R.
v. K. (A.) (1999), 45 O.R. (3d) 641; R. v. Abbey, [1982] 2
S.C.R. 24; R. v. Lavallee, [1990] 1 S.C.R. 852; R. v. Déry,
[2001] Q.J. No. 3205 (QL); R. v. Gibson (1992), 72 C.C.C. (3d) 28; R.
v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Latour (1997), 116 C.C.C.
(3d) 279; R. v. Moen (2007), 48 C.R. (6th) 361, 2007 BCSC 376; R. v.
Noros‑Adams (2003), 190 Man. R. (2d) 161, 2003 MBCA 103.
By Deschamps J. (dissenting)
R. v. Heideman (2002),
168 C.C.C. (3d) 542; R. v. Abbey, [1982] 2 S.C.R. 24; R. v. Lifchus,
[1997] 3 S.C.R. 320; R. v. Dubois (1990), 62 C.C.C. (3d) 90; R. v.
Déry, [2001] Q.J. No. 3205 (QL); R. v. Bellemare, [2001] Q.J.
No. 3304 (QL); R. v. Nault, [2001] Q.J. No. 3201 (QL); R.
v. Thiffeault, [2001] Q.J. No. 3198 (QL); R. v. Gibson (1992),
72 C.C.C. (3d) 28; R. v. Milne (2006), 43 M.V.R. (5th) 167, 2006 ABPC
331; R. v. Hughes, [2007] A.J. No. 740 (QL), 2007 ABPC 180.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 11 (d).
Criminal Code, R.S.C.
1985, c. C‑46, ss. 253 , 258(1) (c), (d.1), (g).
Interpretation Act, R.S.C. 1985, c. I‑21, s. 25 .
Authors Cited
Solomon, Robert, and Erika
Chamberlain. “Calculating BACs for Dummies: The Real‑World Significance
of Canada’s 0.08% Criminal BAC Limit for Driving” (2004), 8 Can. Crim. L.R.
219.
APPEAL from a judgment of the Nova Scotia Court of
Appeal (Saunders, Oland and Fichaud JJ.A.) (2006), 243 N.S.R. (2d) 325, 208
C.C.C. (3d) 248, 30 M.V.R. (5th) 161, [2006] N.S.J. No. 178 (QL), 2006
CarswellNS 181, 2006 NSCA 51, setting aside the accused’s acquittal and
ordering a new trial. Appeal dismissed, Binnie and Deschamps JJ.
dissenting.
APPEAL from a judgment of the Alberta Court of Appeal
(Fraser C.J.A. and Ritter and O’Brien JJ.A.), [2006] 9 W.W.R. 711, 60 Alta.
L.R. (4th) 205, 391 A.R. 140, 209 C.C.C. (3d) 481, 32 M.V.R. (5th) 163, [2006]
A.J. No. 706 (QL), 2006 CarswellAlta 792, 2006 ABCA 177, affirming the
accused’s conviction. Appeal dismissed, Binnie and Deschamps JJ.
dissenting.
Joshua M. Arnold,
Michael S. Taylor and Stanley W. MacDonald, for the
appellant Robert Albert Gibson.
Alan D. Gold, for
the appellant Martin Foster MacDonald.
William D. Delaney
and Frank Hoskins, Q.C., for the respondent Her Majesty the Queen
(31546).
Eric J. Tolppanen
and David C. Marriott, for the respondent Her Majesty the Queen
(31613).
Philip Perlmutter
and James V. Palangio, for the intervener the Attorney General of
Ontario.
The reasons of Bastarache, Abella, Charron and Rothstein
JJ. were delivered by
Charron J. —
1. Overview
[1]
These appeals raise the question of whether expert opinion evidence
which says that the accused’s blood alcohol concentration may have been over or
may have been within the legal limit at the material time, depending on the
accused’s actual rates of absorption and elimination on the day in question, is
capable of rebutting the statutory presumption set out in s. 258(1) (d.1)
of the Criminal Code, R.S.C. 1985, c. C‑46 (see Appendix). This
type of evidence will be referred to as “straddle evidence” because the range
of possible blood alcohol concentrations straddles the legal limit of 80 mg of
alcohol per 100 ml of blood.
[2]
LeBel J. concludes that depending on a number of factors, straddle
evidence may or may not provide a sufficiently probative evidentiary basis to
rebut the presumption arising from the accused’s failure of the breathalyzer
test. These factors may include evidence about the accused’s own rate of
elimination as tested post-offence. I agree with LeBel J. that the straddle
evidence adduced in both cases under appeal failed to rebut the presumption and
that consequently both appeals should be dismissed. However, I arrive at this
conclusion for different reasons.
[3]
As I will explain, it is my view that in all cases straddle
evidence merely constitutes an attempt to defeat the statutory presumption
itself and, as such, does not tend to show that the accused’s blood alcohol
concentration did not exceed the legal limit at the time of the alleged offence
within the meaning of s. 258(1) (d.1). I also conclude, on the basis of
the undisputed scientific fact that absorption and elimination rates vary
continuously, that post-offence testing of the accused’s own elimination rate
will rarely, if ever, add anything of value to the expert opinion evidence and,
for obvious policy reasons, should not be encouraged, let alone required.
[4]
It is undisputed that the human body absorbs and eliminates alcohol over
time, and that absorption and elimination rates vary, not only from person to
person, but also from time to time for the same individual, depending on
a number of factors, some of which concern the person’s digestive process at
the relevant time. It is therefore impossible to ascertain the precise rate at
which the accused was metabolizing alcohol at the time of the alleged offence.
Parliament can be assumed to have known that blood alcohol levels are subject to
these inherent variations. Yet, it saw fit to implement the presumption. The
legislative scheme must be interpreted in this context.
[5]
Because absorption and elimination rates continually vary, it is readily
apparent that a breathalyzer reading of 95 mg, for example, may not reflect the
actual concentration of alcohol in the accused’s blood at the time of
the alleged offence — it would depend on the rate at which the particular
accused is metabolizing the alcohol during the relevant time period on the day in
question. Yet, it can be no defence for an accused to say that the actual
alcohol concentration at the material time may have been less than the legal
limit based on this variable alone. To admit such a defence would obviously
fly in the face of the presumption itself. It is because of these inherent
variations in absorption and elimination rates that the presumption of identity
is needed in the first place. In order to facilitate proof of the offence, the
presumption treats all persons as one person with a fixed rate of elimination
and absorption.
[6]
Straddle evidence puts the accused in no better position. It merely
confirms that the accused falls into the category of drivers targeted by
Parliament — namely, those who drive having consumed enough alcohol to reach a
blood alcohol concentration exceeding 80 mg. Parliament, in creating this
offence, clearly regarded driving with this level of consumption as posing
sufficient risk to warrant criminalization. It is therefore not enough to show,
based on evidence about the accused’s pattern of consumption of alcohol during
the relevant time period, that the accused consumed enough alcohol to exceed
the legal limit, albeit in a quantity that would place him within a
range that may be somewhat different than that which could be extrapolated from
the breathalyzer reading. It is clear from the wording of s. 258(1) (d.1)
that the presumption can only be rebutted by evidence that tends to show that
the accused’s blood alcohol concentration did not exceed the legal
limit and, hence, that the accused was not in the targeted category of
drivers.
[7]
In order to displace the presumption, the evidence must show, therefore,
that based on the amount of alcohol consumed, the accused’s blood alcohol
concentration would not have been above the legal limit at the time of driving,
regardless of how fast or slow the accused may have been metabolizing
alcohol on the day in question. Of course, the court need not be convinced of
that fact. It is sufficient if the evidence raises a reasonable doubt.
[8]
Further, because it is scientifically undisputed that absorption and
elimination rates can vary from time to time, nothing is really gained by
post-offence testing of an accused’s elimination rate. Short of reproducing
the exact same conditions that existed at the time of the offence, assuming
this is even possible, any expert opinion evidence based on actual tests would
have to be given with the qualification that absorption and elimination rates
vary from time to time, and therefore the accused’s blood alcohol level at the
material time cannot be measured with precision. Ultimately, the best evidence
an expert can provide, as the expert opinion evidence adduced in
Mr. MacDonald’s case exemplifies, is likely to be a range reflecting
average elimination rates. In any event, it is my view that this Court should
not interpret this legislative scheme, which is intended to combat the social
evils resulting from drinking and driving, as requiring accused persons, some
of whom may well be battling with alcohol addiction, to submit to drinking
tests in order to make out a defence. Surely, Parliament cannot have so
intended.
2. The
Proceedings Below
[9]
LeBel J. has described the facts in some detail and summarized the
findings of the courts below and I need not repeat this information here. For
the purpose of my analysis, I will only briefly summarize the evidence.
[10]
In each case under appeal, the accused was charged with driving “over
80” after failing a breathalyzer test. The first breath sample taken from Mr.
Gibson provided a reading of 120 mg and the second a reading of 100 mg. The
two breath samples taken from Mr. MacDonald each produced a reading of 146 mg.
At their respective trials, Mr. Gibson and Mr. MacDonald testified as to
their pattern of drinking at the material time and adduced expert evidence to
rebut the presumption that the breathalyzer readings provided proof that their
blood alcohol concentrations exceeded the legal limit at the time of driving.
As is usually the case, the expert opinion evidence concerning the accused’s
blood alcohol concentration at the time of driving was expressed in terms of a
range of possible blood alcohol concentrations, given the amount of alcohol consumed,
the pattern of drinking, and the accused’s age, height, weight and gender. In
each case, the range of hypothetical blood alcohol concentrations “straddled”
the legal limit of 80 mg. Mr. Gibson’s expert testified that, if the
pattern of consumption described by Mr. Gibson was accurate, his blood alcohol
concentration would have been between 40 and 105 mg at the time of driving.
Mr. MacDonald’s expert provided a range of between 64 and 109 mg.
[11]
In addition, the expert called on behalf of Mr. MacDonald tested his
elimination rate more than six months after the alleged offence, explaining
that this test was required of him by the Alberta Court of Appeal. The test
did not involve beer or a similar pattern of drinking as on the date of the
offence, but rather required Mr. MacDonald to consume a quantity of diet
soda and vodka over a period of five minutes, then give breath samples
periodically until his blood alcohol concentration reached a target range of
between 50 and 60 mg. On the basis of this test, the expert determined that
Mr. MacDonald’s elimination rate was 18.5 mg per hour. Assuming this
elimination rate to be operative at the material time, the expert estimated
that Mr. MacDonald’s blood alcohol concentration would have been 71 mg
when he was stopped by the police. However, the expert added that “medically
it’s clear” that an individual’s elimination rate can “vary from occasion to
occasion”, and that food consumption and alcohol type affect alcohol absorption
rates. He therefore stated that “if the rate of elimination was not 18.5
likely it would fall between 10 and 20, again, because most of the population
would break alcohol down within that range” (A.R., at p. 70).
3. Analysis
[12]
Before discussing the effect of straddle evidence, it may be helpful to
briefly describe the evidentiary presumptions in s. 258(1) of the Criminal
Code in the context of the legislative scheme and to review some of this
Court’s jurisprudence on the presumptions and the nature of the evidence
capable of rebutting them.
3.1 The
Legislative Scheme and the Statutory Presumptions
[13]
It is a criminal offence under s. 253 of the Criminal Code for a
person to operate a motor vehicle while his or her ability to operate the motor
vehicle is impaired by alcohol. It is equally an offence under the same
provision for a person to operate a motor vehicle having consumed alcohol in
such a quantity that the concentration in the person’s blood exceeds 80 mg. In
criminalizing the conduct of persons who drive with a blood alcohol
concentration in excess of 80 mg, regardless of whether those persons
are actually impaired at the time, it can be presumed that Parliament regarded
driving with this level of consumption as being of sufficient risk to warrant
criminalization. Wakeling J.A. captured this point well in his dissenting
reasons in R. v. Gibson (1992), 72 C.C.C. (3d) 28 (Sask. C.A.), at pp.
45‑46:
As a starting point in the consideration of this
appeal, it is useful to remember the basis for the legislation in question.
The decision to create an .08 standard as establishing intoxication to a point
of impairment necessarily rejects an element of individuality in order to meet
the higher social advantage of effectively dealing with the serious hazard
created by those who drive when they have been drinking and are impaired as a
consequence. Inherent in the acceptance of .08 as a standard is the
recognition that alcohol does not have the same impact on everyone, depending
on such differences as gender, age, weight and individual tolerance levels, but
that the extent of the social concern created by impaired drivers and the
tragic consequences of a failure to control that problem, dictated the change
from an emphasis on an individual’s reaction to alcohol to an emphasis on a
standard of general application. The standard is not intended as an absolute
one in the sense that it is an accurate assessment of everyone’s state of
impairment, as is evident from the fact some jurisdictions have set the figure
at .100 (some states in the U.S.A.) and others as low as .06 (some states in
Australia).
[14]
Section 258(1) of the Criminal Code establishes three evidentiary
presumptions which simplify the prosecution of the offence of driving “over
80”. In R. v. St. Pierre, [1995] 1 S.C.R. 791, Iacobucci
J. explained that the presumptions are “legal or evidentiary shortcuts designed
to bridge difficult evidentiary gaps” (para. 23). More recently, Deschamps J.
described the legislative scheme as creating “two presumptions of identity and
one presumption of accuracy” (R. v. Boucher, [2005] 3 S.C.R. 499, 2005
SCC 72, at para. 14).
[15]
The presumption of accuracy is contained in s. 258(1)(g). It
provides that a technician’s certificate stating the accused’s blood alcohol
concentration at the time of the breathalyzer test is presumed to be accurate,
in the absence of any evidence to the contrary. Although s. 258(1)(g)
does not expressly include the words “in the absence of any evidence to the
contrary”, this phrase is included by implication because of s. 25(1) of the Interpretation
Act, R.S.C. 1985, c. I‑21 , which states as follows:
25. (1) Where an enactment provides that a
document is evidence of a fact without anything in the context to indicate that
the document is conclusive evidence, then, in any judicial proceedings, the
document is admissible in evidence and the fact is deemed to be established in
the absence of any evidence to the contrary.
[16]
The first presumption of identity is contained in s. 258(1)(c).
Section 258(1)(c) states that in the absence of evidence to the
contrary, where breath alcohol samples have been taken in accordance with
certain technical requirements, the accused’s blood alcohol concentration at
the time of the breathalyzer test is presumed to be the same as his blood
alcohol concentration at the time of the alleged offence. In St. Pierre,
this Court considered the statutory presumption in s. 258(1)(c) and
concluded that in order to rebut the presumption, the accused need only
demonstrate that his blood alcohol concentration at the time of driving was
different than at the time of the test. Iacobucci J. explained the Court’s
reasoning in the following manner:
The section clearly does not say that the accused must show that he or
she was not over .08 for the presumption not to apply. As stated earlier, the
presumed fact deals with presuming blood alcohol levels to be the same at two
different times. Evidence to the contrary must therefore be defined in
relation to what is being presumed. [para. 46]
Following St.
Pierre, Parliament enacted s. 258(1)(d.1), which effectively
overruled the majority decision in that case. Section 258(1)(d.1) adds
that where the breathalyzer test produces a reading above 80 mg, the accused’s
blood alcohol concentration is presumed to have exceeded 80 mg at the time of
the alleged offence, absent evidence “tending to show” that the accused’s blood
alcohol concentration did not in fact exceed 80 mg. As a result, in order to
rebut the statutory presumptions of identity in s. 258(1), an accused whose
breathalyzer reading exceeds 80 mg must now show not only that his blood
alcohol concentration was different at the time of driving than at the time of
the test, but also that his blood alcohol concentration did not exceed 80 mg at
the time of the alleged offence.
3.2 Rebutting
the Presumptions
[17]
It is well established that the standard of proof required to rebut the
statutory presumptions is reasonable doubt. The expressions “evidence to the
contrary” in s. 258(1)(c), “any evidence to the contrary” implicit in s.
258(1)(g) and “evidence tending to show” in s. 258(1)(d.1)
reflect this same standard. In Boucher, the Court emphasized that the
burden of proof never shifts to the accused. Rather, “it will be sufficient
if, at the conclusion of the case on both sides, the trier of fact has a
reasonable doubt” (Boucher, at para. 15, citing R. v. Proudlock,
[1979] 1 S.C.R. 525, at p. 549).
[18]
Of course, the crucial factual foundation upon which expert opinion
evidence of this kind usually stands or falls is the accused’s evidence about
the amount of alcohol he or she consumed and the pattern of drinking over the
relevant period of time. If this factual basis is not credible and is rejected
by the trial judge, the expert opinion evidence about the accused’s blood
alcohol level at the time of the offence, although relevant and admissible at
the time it is proffered, has no probative value and need not be considered by
the court in arriving at a verdict. The issue of whether the expert opinion
evidence “tends to show” that the accused’s blood alcohol level did not exceed
80 mg at the material time only arises if the accused’s evidence of consumption
is believed.
[19]
A review of the previous decisions of this Court demonstrates that
Parliament’s intention in enacting this legislation has played a prominent role
in determining what kind of evidence is capable of rebutting the presumptions in
s. 258(1). In R. v. Moreau, [1979] 1 S.C.R. 261, the accused was
charged with “over 80” following a breathalyzer test which showed that his
blood alcohol concentration was 90 mg. Moreau was convicted, but on appeal by
way of a trial de novo, he adduced expert evidence that the breathalyzer
was subject to a margin of error of 10 mg. The case was appealed to the Court
of Appeal and then to this Court, where the majority concluded that expert
evidence of the breathalyzer’s margin of error could not constitute “evidence
to the contrary” for the purposes of s. 258(1)(c). Beetz J. provided
the following explanation for why such evidence was incapable of rebutting the
presumption:
What evidence
there is, tendered on behalf of the accused, is expert evidence from which
Courts are asked to conclude, contrary to what the Code explicitly prescribes,
that the result of the chemical analysis is not or ought not to be proof of the
proportion of alcohol in the blood of the accused at the time when the offence
was alleged to have been committed. This, in my opinion, is not evidence aimed
at rebutting the presumption provided for in the section but at denying its
very existence. “Evidence to the contrary” cannot be evidence solely
directed at defeating the scheme established by Parliament under ss. 236 and
237.
This elaborate legislative scheme contemplates and
provides for elements of positive certainty such as the official approval of
certain kinds of instruments, the designation of analysts and qualified
technicians, a maximum time period between the commission of the alleged
offence and the taking of a breath sample, and the reading by a qualified
technician on an approved instrument of a proportion of alcohol in the blood in
excess of a specified proportion. Once the conditions prescribed or
contemplated by this scheme are fulfilled, a presumption arises against the
alleged offender which he can rebut by tendering “evidence to the contrary”.
But in my opinion, no evidence is “evidence to the contrary” when its only
effect is to demonstrate in general terms the possible uncertainty of the
elements of the scheme or the inherent fallibility of instruments which are
approved under statutory authority. Thus, the proof by expert evidence that,
for physiological reasons of a general nature, the maximum time period of two
hours between the commission of an offence and the taking of a breath sample is
too long would not be “evidence to the contrary”. [Emphasis added; pp.
271-72.]
[20]
In St. Pierre, Iacobucci J. made a similar finding with respect
to s. 258(1)(c). In that case, the accused consumed two small bottles
of vodka between the time she was stopped by police and when the breathalyzer
test was administered. The Court concluded that this evidence was sufficient
to rebut the presumption of identity. In limiting what could constitute
“evidence to the contrary”, however, Iacobucci J. noted that evidence of the
“normal process of absorption and elimination” could not be “evidence to the
contrary”. Otherwise, “the presumption would be useless, since it could always
be rebutted”. He further explained:
The effect of normal biological processes of
absorption and elimination of alcohol cannot of and by itself constitute
“evidence to the contrary”, because Parliament can be assumed to have known
that blood alcohol levels constantly change, yet it saw fit to implement the
presumption. Therefore, as Arbour J.A. states [in the Court of Appeal below],
to permit this to become “evidence to the contrary” would, in effect, be
nothing more than an attack on the presumption itself by showing that it is a
legal fiction and therefore should never be applied. In my view, such an
attack on the presumption should not be allowed. [Emphasis added; para.
61.]
[21]
These excerpts are instructive on the question that occupies us
concerning the effect of straddle evidence. The evidence referred to in Moreau
and at para. 61 of St. Pierre was not probative of the blood
alcohol level of the particular accused, but was instead an attack on the
presumptions themselves. In both cases, this Court concluded that it did not
advance the accused’s case to show that the presumptions were legal fictions,
since this was self-evident.
[22]
The determinative question in these cases, therefore, is whether
straddle evidence is truly evidence which “tends to show” that the accused’s
blood alcohol level did not exceed 80 mg at the time of driving, or whether it is
evidence akin to that referred to in Moreau and St. Pierre which,
in effect, merely attacks the presumption itself.
3.3 Three
Approaches to Straddle Evidence
[23]
Three main approaches to straddle evidence have developed in the case
law. These different approaches were discussed by the courts below, most
effectively and succinctly by Tufts J., the trial judge who presided over Mr.
Gibson’s trial ((2004), 225 N.S.R. (2d) 16, 2004 NSPC 40). The three lines of
analyses are the following.
[24]
One approach to straddle evidence may be called the Heideman line
of analysis, based on the Court of Appeal for Ontario’s decision in R. v.
Heideman (2002), 168 C.C.C. (3d) 542. In Heideman, a toxicologist
gave evidence that an average person of the accused’s height and weight who
consumed alcohol in the same manner as the accused would have had a blood
alcohol concentration of 71 mg at the time of driving. However, if the accused
was a slow or a fast eliminator, his blood alcohol concentration could have fallen
between 47 and 95 mg. The defence argued that the accused should be acquitted
because it was more likely than not that his blood alcohol concentration was
below 80 mg at the relevant time. Carthy J.A. (Abella and MacPherson JJ.A.
concurring) rejected this argument and held that straddle evidence can never
rebut the presumption in s. 258(1)(d.1). Rather, the entire range of
hypothetical values must fall below 80 mg for the presumption to be set aside.
The court reasoned as follows:
Parliament
must be taken to know that the body eliminates alcohol over time and that
different persons eliminate at different rates. In applying the test levels to
an offence time up to two hours earlier Parliament has built the elimination
factor into the choice of 80 milligrams as a standard and, in doing so, has
treated all drivers as one. In other words, Parliament may have inserted into
the formula a slower than average elimination rate and, as a balance, a higher
offence level than might otherwise have been imposed.
These contextual considerations lead me to conclude that “tending to
show” does not mean evidence “bearing on the subject”, or evidence that “could
show”. On the other hand, it need not be persuasive. The guilt or innocent
stage has not been reached. However, the evidence must be probative of the
issue before the court; that is, probative of the level of alcohol in this
person’s blood at the time of the offence. The opinion must offer a choice to
acceptance of the certificate as indicating the blood level at the time of the
offence, and must indicate that the level was below .08.
The expert evidence in Carter showed that the accused was below
.08, if his evidence was accepted, because the same opinion would apply to all
persons of his height and weight drinking the amounts stated over the same
period of time. The evidence in this case does not exonerate all persons —
only those who are not slow eliminators. It is therefore not probative of this
appellant’s blood level at the time of the offence.
The appellant seeks to say that he is an average
person but cannot establish that fact. Absorption and elimination rates vary
not only from person to person but also from time to time with each
individual. Thus this element of fact cannot be established. Yet it is as
essential to the opinion as the number of drinks consumed, as evidenced by the
range from 71 to 95 milligrams within the group of slow eliminators. To put it
another way, the opinion is not supported by the evidence any more than if the
appellant had said that he’s not sure how many drinks he had consumed but on
average it was five and sometimes seven. The only probative opinion would have
to relate to seven drinks. [paras. 12-15]
[25]
The Heideman approach has been followed by the courts in Ontario
and by the summary conviction appeal court in Manitoba in R. v. Noros‑Adams
(2003), 175 Man. R. (2d) 68, 2003 MBQB 130. The Alberta Court of Appeal
expressly endorsed the Heideman approach in Mr. MacDonald’s case,
stating that to conclude otherwise “flies directly in the face of the obvious
legislative intent of the presumptions” ((2006), 60 Alta. L.R. (4th) 205, 2006
ABCA 177, at para. 55). O’Brien J.A. explained as follows:
The offence created by s. 253 (b) is not the quantity
of alcohol consumed, but rather is the consumption resulting in an alcohol
concentration exceeding 80 mg in 100 ml. The section applies equally to slow
absorbers and eliminators and to fast absorbers and eliminators. In my view, the
presumptions are legislated to avoid arguments based upon whether an accused is
a fast or slow absorber and eliminator and the presumption of accuracy is
not rebutted by demonstrating a range of possible alcohol levels, giving rise
to conjecture as to whether or not the blood alcohol content was within the
legal limit at the material time. Conjecture does not tend to show anything.
Something more is needed to rebut the statutory presumption of the accuracy of
the breathalyzer. [Emphasis added; para. 58.]
[26]
The Nova Scotia Court of Appeal expressly declined to address the
straddle evidence issue in Mr. Gibson’s case, preferring to base its conclusion
on certain passages from this Court’s decision in Boucher. On this
point, I agree with LeBel J. (at para. 62) that these appeals are
distinguishable from Boucher and I have nothing to add to the
clarification provided by my colleague. I find it interesting to note however,
that the Nova Scotia Court of Appeal expressed the view that the passages from Boucher,
upon which it founded its conclusion that the expert opinion evidence did not
rebut the presumption in Mr. Gibson’s case, “echo the Ontario Court of Appeal’s
view in Heideman” ((2006), 243 N.S.R. (2d) 325, 2006 NSCA 51, at para.
20).
[27]
Another line of cases have adopted what could be called the “prevailing
direction” approach. Under this approach, courts have accepted that straddle
evidence can rebut the statutory presumption if the accused’s range of possible
blood alcohol concentrations is more below the legal limit than above. This is
essentially the approach adopted by Deschamps J. in her reasons. It was also
adopted by the Alberta Provincial Court in R. v. Gaynor (2000), 272 A.R.
108, 2000 ABPC 104. In Gaynor, Davie Prov. Ct. J. consulted
dictionaries to determine the ordinary meaning of “tend” in the phrase
“evidence tending to show” in s. 258(1) (d.1) of the Criminal Code .
He concluded that “tend” meant “having a prevailing direction” or “to have a
leaning”. He then considered these definitions in the context of straddle
evidence (at para. 38):
[I]n straddle
cases such as the case at bar, it is not any straddle evidence which will
disarm the presumption. One cannot point to any particular part of the range
of possibilities to constitute evidence to the contrary. One must look at the
evidence; that is, the whole range of possible readings and ask:
Does the range of possibilities have a leaning or prevailing direction
which makes it clear that the accused’s blood-alcohol level was not over .08?
If it does, or if the Court is left with a reasonable doubt on the issue, then
the evidence amounts to “evidence to the contrary” and the presumption is
disarmed.
[28]
The “prevailing direction” approach has also been adopted by other trial
courts in Alberta and Prince Edward Island, and was the approach taken by the
trial judge in Mr. MacDonald’s case. Kirkpatrick Prov. Ct. J. noted that the
midpoint of the range of possible blood alcohol concentrations provided by the
expert was above the legal limit at 86.5 mg. Adopting the prevailing direction
approach as explained in Gaynor, Kirkpatrick Prov. Ct. J. concluded that
the expert evidence did not “tend to show” that the accused’s blood alcohol
level was below the legal limit at the time of driving (2003 CarswellAlta
1986).
[29]
On my reading of LeBel J.’s analysis, the approach he adopts is somewhat
akin to the prevailing direction approach in that it allows straddle evidence
to disarm the presumption at the imprecise point when the court finds it
sufficiently probative to raise a reasonable doubt. I find nothing offensive
in principle with the notion that a reasonable doubt admits of no precise
boundaries, but I raise the following query: if indeed straddle evidence does
not fly in the face of the legislative regime and is capable of rebutting the
presumption, why would evidence that Mr. Gibson’s blood alcohol concentration
may have been as low as 40 mg and Mr. MacDonald’s as low as 64 mg not suffice
to raise a reasonable doubt? Indeed, under the third approach developed in the
case law, which I describe next, this evidence, if accepted by the trial court,
would effectively rebut the presumption.
[30]
The third approach to straddle evidence, which could be called the “some
evidence” approach, was suggested by L’Heureux‑Dubé J., writing in
dissent in St. Pierre. To rebut the statutory presumption under
the “some evidence” approach, it is sufficient for the accused to point to
evidence which tends to show that his blood alcohol concentration could have
been below 80 mg at the time of the alleged offence. As L’Heureux‑Dubé
J. explained:
In the context of an “over 80” charge, it will be
necessary for the accused to point to credible evidence which tends to show
that his blood alcohol level could have been under the legal limit. This
evidence will typically take the form of expert evidence to the effect that the
alcohol consumed after driving (or immediately before embarking) would
generally affect a person of the accused’s sex, height and body weight within a
certain range of values. Thus, for instance, an accused may adduce expert
evidence indicating that when the effect of alcohol allegedly consumed after
driving is subtracted from the actual blood alcohol reading on the
breathalyzer, it would bring the accused’s blood alcohol level to anywhere between
70 and 120 mg of alcohol per 100 ml of blood. This evidence would amount to
“evidence to the contrary” of the presumption in s. 258(1) (c), and
the Crown would no longer be able to rely on that presumption to prove its case
against the accused. There is no need for the accused to demonstrate that his
blood alcohol level is actually below .08. He need only adduce credible
evidence tending to show that this is possible under the circumstances.
[Emphasis added; emphasis in original deleted; para. 103.]
This approach
was adopted by the Saskatchewan Court of Appeal in Gibson and the Quebec
Court of Appeal in R. v. Déry, [2001] Q.J. No. 3205 (QL). Under this
approach, straddle evidence, when accepted by the trial court, will suffice to
rebut the presumption because it provides some evidence that the accused’s
blood alcohol concentration did not exceed 80 mg at the time of the alleged
offence. This is the approach endorsed by the trial judge in Mr. Gibson’s
case, hence his acquittal at trial (in fact, the trial judge concluded that the
statutory presumption was rebutted on either the “prevailing direction” or the
“some evidence” approach).
[31]
Without question, the “some evidence” approach is the most favourable to
the accused and, as such, appears at first blush to be the correct one.
However, in my view, when considered in the context of the legislative scheme
and the nature of the expert opinion evidence in question, it becomes clear
that straddle evidence, in effect, is simply an attack on the presumption
itself and that it cannot constitute evidence “tending to show” that the
accused’s blood alcohol level did not exceed 80 mg at the material time.
[32]
As I stated in my introductory remarks, it cannot be disputed that the
presumption is a legal fiction and that a breathalyzer reading that exceeds the
legal limit may not be reflective of the actual concentration of
alcohol in the accused’s blood at the time of the offence because it always
depends on the rate at which the particular accused is metabolizing the alcohol
during the relevant time period on the day in question. Yet the offence is
clearly made out. The breathalyzer test provides legal proof that the accused
“consumed alcohol in such a quantity” that it put him or her over 80 mg
contrary to s. 253 of the Criminal Code . The accused cannot rebut the
presumption by relying on inherent variations in absorption and elimination
rates. Straddle evidence puts the accused in no better position. Evidence
that merely confirms that alcohol was consumed in a sufficient quantity to
produce a blood alcohol concentration that exceeds the prescribed limit, whether
or not it be within the same range that could be extrapolated from the
breathalyzer reading, cannot rebut the presumption under s. 258(1) (d.1).
When considered in this sense, straddle evidence, in effect, is tantamount to
arguing, for example, that the accused should not be convicted because he or
she only drank a sufficient quantity of alcohol to reach a 90-mg concentration
rather than a 95-mg concentration as recorded by the breathalyzer. Parliament,
by creating this offence, clearly regarded driving with this level of
consumption as posing sufficient risk to warrant criminalization. To hold
otherwise would be to defeat the presumption itself and it cannot be allowed.
4. Disposition
[33]
Therefore, in each case before the Court, the expert opinion evidence,
in placing the accused’s blood alcohol concentration both above and below the
legal limit at the time of driving depending on the accused’s actual rate of
absorption and elimination on the day in question, did no more than confirm
that the accused fell within the category of drivers targeted by Parliament and
did not rebut the statutory presumption under s. 258(1) (d.1) of
the Criminal Code . Consequently, I would dismiss Mr. Gibson’s appeal
and confirm the order for a new trial. I would also dismiss Mr. MacDonald’s
appeal and uphold his conviction.
The reasons of McLachlin C.J. and LeBel and Fish JJ. were delivered by
[34]
LeBel J. _ These appeals raise the question of
what constitutes evidence to the contrary for the purpose of rebutting the
presumption in s. 258(1) (d.1) of the Criminal Code, R.S.C. 1985,
c. C-46 . That provision states that, absent evidence to the contrary, a
breathalyzer reading over 80 mg of alcohol in 100 ml of blood is proof
that the accused had a blood alcohol content exceeding 80 mg at the time of the
offence. This Court has been asked to decide in particular whether the
presumption can be rebutted using expert evidence of alcohol elimination rates
in the general population and “straddle evidence”, or evidence of a range of
possible blood alcohol levels lying both below and above the legal limit. For
the reasons that follow, both expert evidence of alcohol elimination rates in
the general population and straddle evidence can be relevant and are therefore
not inherently inadmissible for the purpose of rebutting the presumption in
question. However, the probative value of such evidence will often be so low,
as is the case in these two appeals, that it is not sufficient to rebut the
presumption in s. 258(1) (d.1). Both appeals are dismissed on this
basis.
I. Facts and
Judgments Below
A. Gibson
[35]
Mr. Gibson was charged with operating a vehicle while having over
80 mg, contrary to s. 253 (b) of the Criminal Code . At trial
in the Nova Scotia Provincial Court, the arresting officer testified that he
saw Mr. Gibson driving his all-terrain vehicle on the highway, that he stopped
him at 8:59 p.m. on July 13, 2003, that Mr. Gibson’s breath smelled of
alcohol, and that his speech was slurred. The officer administered two
breathalyzer tests, which indicated that Mr. Gibson’s blood alcohol content was
120 mg at 10:12 p.m. and 100 mg at 10:21 p.m.
[36]
Mr. Gibson testified that he had consumed ten beers over a period of
seven hours on the day in question and had consumed five of them shortly before
being stopped by the police. His testimony was corroborated by another
witness. An expert witness for the defence testified that, assuming that the
pattern of consumption attested to by Mr. Gibson and the corroborating
witness was accurate and based on the average alcohol elimination rates of men
of Mr. Gibson’s age, height and weight, Mr. Gibson would have had a blood
alcohol content of between 40 and 105 mg at 8:59 p.m., when he was stopped by
the police.
[37]
The trial judge accepted both the evidence of Mr. Gibson’s consumption
and the expert evidence. He held that the evidence that Mr. Gibson’s blood
alcohol content would have been between 40 and 105 mg at the time he last
operated the vehicle was evidence to the contrary that rebutted the presumption
in s. 258(1) (d.1). The trial judge was left with a reasonable doubt
that Mr. Gibson’s blood alcohol content had exceeded the legal limit, and
acquitted him ((2004), 225 N.S.R. (2d) 16, 2004 NSPC 40).
[38]
The Nova Scotia Supreme Court upheld the acquittal despite the Crown’s
submission that expert evidence based on elimination rates in the general
population could not constitute evidence to the contrary ((2004), 227 N.S.R.
(2d) 165, 2004 NSSC 228). The court held that, since it is practically
impossible for an accused to accurately determine his or her elimination rate
at the time of the alleged offence, to reject evidence of elimination rates in
the general population would amount to making the presumption in s. 258(1) (d.1)
an irrebuttable one, which could lead to false convictions.
[39]
The Nova Scotia Court of Appeal allowed the appeal, set aside the
acquittal and ordered a new trial ((2006), 243 N.S.R. (2d) 325, 2006 NSCA 51).
It cited this Court’s decision in R. v. Boucher, [2005] 3 S.C.R. 499,
2005 SCC 72, for the proposition that an expert opinion based on average
tendencies of the population is without foundation and thus inadmissible.
Therefore, the Court of Appeal held that the Nova Scotia Supreme Court had
erred in finding that evidence of a hypothetical person’s elimination rates was
capable of rebutting the presumption in s. 258(1) (d.1).
B. MacDonald
[40]
Like Mr. Gibson, Mr. MacDonald was charged with operating a vehicle
while his blood alcohol concentration exceeded 80 mg, contrary to s. 253 (b)
of the Criminal Code . On February 26, 2003, he was stopped at a check
stop, where a police officer noted that Mr. MacDonald smelled of alcohol, was
talking in a deliberate manner and had some difficulty in walking. Two breath
tests produced identical readings of 146 mg, which were rounded down to 140
mg for purposes of the charge.
[41]
Mr. MacDonald testified that he had consumed six cans of beer over four
and a half hours and had consumed the last can five minutes before being
stopped by the police. A friend corroborated this evidence.
[42]
At trial, Mr. MacDonald adduced expert evidence that, according to a
test conducted several months after he was charged, his elimination rate was
18.5 mg per hour and that, assuming he had eliminated alcohol at the same rate
on the night of the alleged offence, his blood alcohol content would have been
71 mg _ below the legal limit _ at the relevant time. In testing
Mr. MacDonald’s elimination rate, the expert did not attempt to recreate the
conditions on the night Mr. MacDonald was charged as regards the type and
pattern of alcohol consumption and the amount of food consumed. Instead, the
expert had Mr. MacDonald drink a mix of Diet Seven‑Up and vodka over a
period of five minutes until he reached a target range of between 50 and 60
mg. The expert then plotted Mr. MacDonald’s blood alcohol readings on a
chart. In addition to testifying that Mr. MacDonald’s blood alcohol
content would have been 71 mg, the expert stated that a man of Mr.
MacDonald’s age, height and weight who eliminated alcohol at an average rate
would have had a blood alcohol content of 64 to 109 mg at the relevant time.
[43]
The trial judge convicted Mr. MacDonald on the basis that the expert
evidence did not tend to show that his blood alcohol content had not exceeded
80 mg (2003 CarswellAlta 1986). In his opinion, Mr. MacDonald’s alcohol
elimination rate according to the expert’s test did not raise a reasonable
doubt, because it did not reflect the type of alcohol or the amount of food
consumed, and the expert had testified that these factors would influence a
person’s elimination rate. The trial judge also noted that, based on
elimination rates in the general population, the midpoint of the range of blood
alcohol levels was 86.5 mg, which is over the legal limit.
[44]
The Alberta Court of Queen’s Bench upheld the conviction for the reason
that the “straddle evidence” _
that is, evidence of a range of possible blood alcohol levels lying both below and
above the legal limit _ was
speculative and was not probative of Mr. MacDonald’s blood alcohol content at
the time of the offence ((2004), 47 Alta. L.R. (4th) 242, 2004 ABQB 629). The
court added that to rebut the presumptions in s. 258(1) (c), (d.1)
and (g), an accused must adduce evidence that would “eliminate a
scenario whereby the accused’s blood‑alcohol level is over 80 [mg] at the
time of driving” (para. 37).
[45]
The Alberta Court of Appeal agreed, relying in part on Boucher. It
stated that evidence of blood alcohol content that disregards the
personal characteristics of the accused at the time of the alleged offence
constitutes an attack on the fictional nature of the presumption and is
inadmissible. It therefore also rejected the use of average elimination rates
and of straddle evidence _ at
least to the extent that straddle evidence is based on elimination rates in the
general population ((2006), 60 Alta. L.R. (4th) 205, 2006 ABCA 177).
II. Analysis
[46]
The first issue on these appeals is the admissibility of expert evidence
of alcohol elimination rates and the use that can be made of such evidence in
rebutting the presumptions in s. 258(1) _
and in particular that in s. 258(1) (d.1). The second, related
issue concerns whether straddle evidence may constitute evidence to the
contrary for the purpose of rebutting those presumptions. In addressing these
issues, it will be necessary to review the scheme of s. 258(1) , the principles
concerning the admissibility and relevance of expert evidence in general, and
the nature of the expert evidence in question in these appeals.
A. Scheme of
Section 258(1)
(1) Presumptions
[47]
In combatting the serious problem of drinking and driving in Canada, the
Crown benefits from evidentiary presumptions of accuracy and identity when
prosecuting the offences provided for in s. 253 of the Criminal Code (operating
a motor vehicle while impaired or with a blood alcohol content over 80 mg).
These presumptions are set out in s. 258(1) (c), (d.1) and (g)
of the Criminal Code . Deschamps J. explained the nature of the
presumptions in Boucher:
Where samples of an accused’s breath have been taken
pursuant to a demand made under s. 254(3) Cr. C., Parliament has
established separate presumptions in s. 258(1) Cr. C. to facilitate
proof of the accused’s blood alcohol level: two presumptions of identity and
one presumption of accuracy. According to the presumption of identity in s.
258(1) (c) Cr. C., the accused’s blood alcohol level at the time
when the offence was alleged to have been committed is the same as the level at
the time of the breathalyzer test. According to s. 258(1) (d.1) Cr. C.,
where the alcohol level exceeds 80 mg at the time of the test, there is a
presumption that it also exceeded 80 mg at the time when the offence was
alleged to have been committed. The presumption of accuracy in s. 258(1) (g)
Cr. C. establishes prima facie that the technician’s reading
provides an accurate determination of the blood alcohol level at the time of
the test. These presumptions have certain similarities, but they remain
distinct presumptions. [para. 14]
I will now add a
few comments on the purpose and effect of the presumptions.
[48]
Under s. 258(1)(g), blood alcohol tests are presumed to be
accurate, provided that certain procedures are followed. This presumption, as
well as the presumption established under s. 258(1)(c), was adopted by
Parliament after a review of the scientific evidence then available about the
reliability of the tests and their fairness to the accused (R. v. Phillips (1988),
42 C.C.C. (3d) 150 (Ont. C.A.), at pp. 159-63). It is known as the presumption
of accuracy. Although the text of the provision does not mention evidence to
the contrary, s. 25 of the Interpretation Act, R.S.C. 1985, c.
I-21 , states that when a document is presumed to establish a fact, the
presumption applies only “in the absence of any evidence to the contrary”. The
presumption is therefore rebuttable, but s. 258(1) (g) is silent as
to whether evidence of mere inaccuracy can rebut it. It is now well settled
that inaccuracy is not sufficient (see R. v. St. Pierre, [1995] 1 S.C.R.
791, at para. 48). Rather, evidence to the contrary must tend to show that the
blood alcohol content of the accused did not exceed the legal limit at the time
of the breathalyzer test. Otherwise, one is only challenging the presumption
itself without providing any exculpatory evidence.
[49]
Under s. 258(1)(c), the blood alcohol content of the accused
while he or she was driving is presumed to have been the same as at the time a
blood alcohol test was administered, provided that certain procedures were
followed and “in the absence of evidence to the contrary”. This is often
referred to as the presumption of (temporal) identity. Like s. 258(1)(g),
s. 258(1)(c) does not specify whether rebutting the presumption requires
evidence that the accused was not over the legal limit or whether evidence of
mere difference over time will suffice. In St. Pierre, a majority of
this Court held that evidence of any difference other than one based only on
normal absorption and elimination might constitute evidence to the contrary for
the purpose of rebutting s. 258(1)(c).
[50]
Shortly after this Court’s decision in St. Pierre, Parliament
enacted s. 258(1)(d.1), which establishes the presumption that, in
the absence of evidence tending to show that the accused had a blood alcohol
content of 80 mg or less while driving, a blood alcohol analysis indicating a
result of over 80 mg is proof that the accused had a blood alcohol content of
over 80 mg while driving. The presumption provided for in s. 258(1)(d.1)
has been referred to as an “additional” presumption of identity, but its effect
is not simply to resolve the concerns raised in St. Pierre (although it
does do that, as Deschamps J. noted in Boucher). Rather, it applies
regardless of whether the accused is challenging the accuracy of the blood
alcohol test or the presumption of identity. This is because s. 258(1)(d.1)
applies even if the requirements of s. 258(1)(g) are met. For example,
let us consider the case of an accused who rebuts the presumption of accuracy
in s. 258(1)(g) with evidence both that his or her blood alcohol content
at the time of the breathalyzer test was different than that indicated by the
machine (as required by s. 258(1)(g)) and that it did not exceed
the legal limit at the time of testing (as required by the common law).
In such a situation, s. 258(1)(d.1) will nevertheless apply, which means
that the accused must also prove that his or her blood alcohol content did not
exceed the legal limit at the time of the alleged offence in order to
rebut the presumption. The Alberta Court of Queen’s Bench therefore correctly
held, at para. 15 of its reasons in MacDonald, that “there is now no
significant difference as to what must be adduced or pointed to in respect to
the two presumptions”. Thus, in the present appeals, although Mr. Gibson was
primarily challenging the presumption of identity and Mr. MacDonald was
challenging the presumption of accuracy, they both had to adduce evidence that
their blood alcohol levels did not exceed the legal limit while they were
driving in order to rebut the presumption in s. 258(1)(d.1). The
distinction between the presumptions of accuracy and identity continues to
exist in theory, but has lost much of its importance in practice.
(2) Meaning of Evidence to the Contrary in
Section 258(1)(d.1)
[51]
Section 258(1)(d.1) presents a significant hurdle for an accused,
but the presumption it provides for is not absolute, nor could it be without
threatening the presumption of innocence. It creates a legal fiction, but not
an absolute one. The presumption in s. 258(1)(d.1) can still be
rebutted by adducing “evidence tending to show that the concentration of
alcohol in the blood of the accused . . . did not exceed eighty milligrams” at
the time the offence was allegedly committed. In R. v. Dubois (1990),
62 C.C.C. (3d) 90 (Que. C.A.), at p. 92, Fish J.A. (as he then was) put the
matter this way:
. . . s.
258(1)(c) of the Code does not impose an “ultimate” or
“persuasive” burden of proof on the accused. The “evidence to the contrary” to
which it refers must tend to show — but it need not prove — that
the blood-alcohol level of the accused did not exceed the statutory limit at
the relevant time. The exculpatory evidence, in other words, must have probative
value, but it need not be so cogent as to persuade the court.
[Emphasis in original.]
I agree with
these observations.
[52]
The appellant MacDonald argues that the difference in wording between
“(any) evidence to the contrary”, as in s. 258(1) (c) of the Criminal
Code and as in s. 25 of the Interpretation Act , and “evidence
tending to show”, as in s. 258(1) (d.1), suggests a “looser inferential
relationship”, such that “evidence tending to show” is broader than “evidence
to the contrary”. I do not find this argument convincing. In my view, for the
reasons that follow, the difference in wording is not meaningful for the
purpose of determining what type of evidence will rebut these presumptions.
[53]
This Court confirmed in Boucher that evidence to the contrary is
evidence that is capable of raising a reasonable doubt as to the presumed fact,
and that this standard applies to s. 258(1) (c), (d.1) and (g).
Thus, in Deschamps J.’s opinion, the enactment of s. 258(1) (d.1) did not
change the type of evidence required to rebut the presumption of identity, but
reinforced that presumption (para. 22). This conclusion is supported by the
fact that the expression “tending to show” has been used by the courts for
decades in the context of evidence to the contrary (see, for example, R. v.
Proudlock, [1979] 1 S.C.R. 525). The reason for the difference in wording
is most likely related not to an intent to broaden the scope of evidence to the
contrary, but to a structural requirement, as Carthy J.A. suggested in R. v.
Heideman (2002), 168 C.C.C. (3d) 542 (Ont. C.A.), at para. 6:
There was a semantic requirement of the restructured sentence which is
now directed to the blood-alcohol level at the time of the offence rather than,
as previously, the reading at the time of testing. It is no longer a question
of being “contrary” to the test.
[54]
The standard for rebutting the presumptions in s. 258(1) (c), (d.1)
and (g) has always been evidence that could raise a reasonable doubt as
to the presumed fact: in the case of s. 258(1) (d.1), the presumed fact
is that the accused had a blood alcohol content of over 80 mg while driving.
However, this is only a starting point. The parties disagree about what kind
of evidence is capable of raising a reasonable doubt. In particular, they
differ on whether straddle evidence and expert evidence based on alcohol
elimination rates in the general population are capable of raising a reasonable
doubt that the accused had a blood alcohol content of over 80 mg. The courts,
too, have disagreed on this issue.
[55]
As we will see in the following paragraphs, the usual approach to
determining admissibility and weight applies to straddle evidence and to
evidence based on alcohol elimination rates in the general population. As a
result, such evidence is not inherently inadmissible for the purpose of
rebutting the presumptions in s. 258(1) . However, in the absence of evidence
tending to show that the blood alcohol level of the accused at the time
of the offence was below the legal limit, that evidence will rarely have
sufficient probative value to rebut the presumptions.
B. Relevance
and Foundation of Expert Evidence
[56]
The approach to determining whether expert evidence is admissible and
whether it can be given weight is well settled. This Court held in R. v.
Mohan, [1994] 2 S.C.R. 9, that to be admissible, expert evidence
must: (a) be necessary, in that it provides information outside the experience
of the trier of fact; (b) be relevant, both in terms of logical relevance and
in the sense that its prejudicial effects are outweighed by its probative
value; (c) be given by a properly qualified expert; and (d) not be subject to
any exclusionary rules.
[57]
The only one of the Mohan criteria that is at issue in the
present appeals is relevance. In R. v. K. (A.) (1999), 45 O.R. (3d) 641
(C.A.), Charron J.A., as she then was, stated that in conducting the relevance
inquiry for expert evidence, it is necessary to begin by asking two questions
(at para. 77):
(a) Does the proposed expert opinion evidence relate to a fact
in issue in the trial?
(b) Is it so related to a fact in issue that it
tends to prove it?
If the answer to
both these questions is “yes”, the judge must ask whether the probative value of
the evidence outweighs its prejudicial effect. If this question is also
answered in the affirmative, the expert evidence is considered relevant for the
purpose of determining whether it is admissible. Thus, the inquiry into the
relevance branch of the test for admissibility is not conducted differently for
expert evidence than for non-opinion evidence. Nevertheless, as noted in Mohan,
this inquiry is of particular significance where the admissibility of expert
evidence is in issue, because of the risk that such evidence will be accepted
uncritically and given more weight than it deserves.
[58]
Relevance is distinct from foundation. Even admissible expert evidence
cannot be given any weight without a proper factual foundation: as this Court stated
in R. v. Abbey, [1982] 2 S.C.R. 24, “the facts upon which the opinion is
based must be found to exist” (per Dickson J., at p. 46). In R. v.
Lavallee, [1990] 1 S.C.R. 852, the Court added that as long as there is
some admissible evidence to establish a foundation for it, the expert’s opinion
may be accepted. The purpose of the factual foundation requirement is to
ensure that expert evidence is reliable. In Boucher, for example, the
expert’s testimony as to the indicia of impairment that a man of the defendant’s
age, height and weight would be expected to exhibit after consuming the amount
the defendant claimed to have consumed was without foundation, because the
defendant’s evidence of consumption had been rejected by the trier of fact.
Absent credible evidence of consumption, the expert’s opinion was based on
facts that had been found not to exist and was therefore entitled to no weight.
[59]
Where expert evidence is adduced to rebut the presumption in s. 258(1) (d.1),
the courts have sometimes confused the principle of relevance with the
requirement that expert evidence have a factual foundation. I will now
consider how these principles apply to expert evidence of alcohol elimination
rates and to straddle evidence.
C. Expert
Evidence of Alcohol Elimination Rates and Blood Alcohol Content
(1) Evidence in Respect of the General
Population
[60]
There has been disagreement among the courts regarding the relevance of
and foundation for expert evidence of alcohol elimination rates in the general
population adduced to rebut the presumptions in s. 258(1) of the Criminal
Code . In MacDonald, the Alberta Court of Appeal held that such
evidence is irrelevant and therefore inadmissible. In Gibson, the
Nova Scotia Court of Appeal held that the evidence of elimination rates in the
general population was without foundation and therefore not entitled to any weight.
In contrast, the Quebec Court of Appeal, in R. v. D_ry, [2001] Q.J. No. 3205
(QL), and the Saskatchewan Court of Appeal, in R. v. Gibson (1992), 72
C.C.C. (3d) 28 _ as well as the
Nova Scotia Provincial Court and the Nova Scotia Supreme Court in Gibson
_ found that the expert evidence
was admissible and that it was capable of rebutting the presumption.
[61]
In both cases at bar, the respondent submits that the expert evidence of
alcohol elimination rates in the general population is without foundation and
can therefore be given no weight. I disagree. It is important to bear in mind
what the expert evidence consists of in these appeals. The experts testified
as to what the blood alcohol content of a person of each appellant’s age, sex,
height and weight would have been, assuming that he eliminated alcohol at a
rate within the range observed in members of the general population, and based
on the consumption pattern to which the appellant testified. The foundation for
the evidence includes: the range of possible elimination rates, of members of
the population as a whole; the fact that the appellant is a member of the
population of a particular height and weight; and the appellant’s evidence of
consumption. Thus, the expert evidence was not without foundation in the cases
at bar.
[62]
These appeals are therefore distinguishable from Boucher, where
there was no credible evidence of consumption on which to base the expert opinion
on blood alcohol content. It is clear from Boucher, Dubois and Proudlock
that if the evidence of consumption is not credible, the presumptions in
s. 258(1) cannot be rebutted. However, the evidence of consumption was
accepted in Gibson and was at least not explicitly rejected in MacDonald.
[63]
The issue relating to evidence of rates in the general population is
therefore not whether such evidence is reliable (which evidence without a
factual foundation may not be), but whether it is relevant for the purpose of
establishing the blood alcohol content of the accused. In light of the
principles discussed above for determining whether evidence is admissible,
expert evidence that the blood alcohol content of someone of the age, sex,
height and weight of the accused would fall in a particular range is relevant
for the purpose of rebutting the presumptions in s. 258(1) of the Criminal
Code .
[64]
The following example is illustrative: if an expert testifies that every
person of the sex, age, height and weight of the accused would, on consuming
the amount in question, have a blood alcohol content below the legal limit,
this is clearly relevant for the purpose of rebutting the presumption in s.
258(1) (d.1). That is, such evidence is logically relevant to the
defence’s claim that the blood alcohol content of the accused was not, in fact,
over 80 mg at the relevant time. Furthermore, the requirement for the
exclusion of defence evidence according to R. v. Seaboyer, [1991] 2
S.C.R. 577, at pp. 609-11 _
that the prejudicial effect of admitting the evidence, such as the consumption
of additional court resources, substantially outweighs its probative value _ will rarely be met in such a case.
If the expert testifies that most people would have been below the legal
limit or even that some people would have been below the limit, the evidence
does not become irrelevant but will, rather, be less probative. Thus, expert
evidence based on alcohol elimination rates in the general population is not
inherently irrelevant and is therefore not inherently inadmissible for the
purpose of rebutting the presumption in s. 258(1) (d.1).
[65]
This Court’s pronouncements in Boucher on evidence of rates in
the general population are not inconsistent with the relevance and
admissibility of such evidence, although that case has sometimes been
interpreted as standing for the proposition that evidence of “statistical averages”
is not admissible for the purpose of rebutting the presumptions in s. 258(1) .
The Court’s rejection of “average figures” in para. 31 of Boucher was
limited to a context in which evidence of consumption is disbelieved. In fact,
that paragraph suggests that if a judge did believe the evidence of
consumption adduced by the accused, the expert evidence would be relevant and
admissible.
[66]
At para. 34 of Boucher, the Court again rejected
“statistical averages” as irrelevant, relying in part on the Ontario Court of
Appeal’s decision in R. v. Latour (1997), 116 C.C.C. (3d) 279. However,
this rejection was limited to a context in which blood alcohol content is
established on the basis of indicia of impairment. Such indicia are
insufficient as evidence of blood alcohol content where, as in Boucher,
no evidence of tolerance is adduced. Evidence of elimination rates in the
general population, on the other hand, is relevant to _ although certainly not conclusive of _ the blood alcohol content of the
accused even in the absence of evidence of his or her elimination rate. Thus, Boucher
and Latour did not reject outright the use of evidence of rates in the
general population to rebut the s. 258(1) presumptions, but, rather, rejected
it in a context in which blood alcohol content is assessed on the basis of
indicia of impairment in the absence of evidence of alcohol tolerance, or in
which evidence of consumption is disbelieved.
[67]
Of course, admissibility is only the first hurdle; admissible evidence
may be given little or no weight. The probative value of evidence based on
rates in the general population will often be so low that it fails to raise a
reasonable doubt that the accused had a blood alcohol content exceeding 80 mg,
as indicated by an approved instrument for measuring blood alcohol content.
Not only do elimination rates vary between individuals, but each individual’s
rate will vary depending on such factors as the amount of food consumed, the
type of alcohol consumed and the pattern of consumption. Thus, evidence that
the blood alcohol content of an average person of the sex, age, height and
weight of the accused would have been at a certain level or within a certain
range will rarely be sufficiently probative to raise a reasonable doubt about
the presumed fact that the actual blood alcohol content of the accused at the
time of the offence exceeded the legal limit.
(2) Evidence of the Elimination Rate of the
Accused
[68]
Expert evidence of the elimination rate of the accused as established by
a test is potentially more probative of the blood alcohol content he or she had
while driving than evidence based on elimination rates in the general
population. However, because an individual’s elimination rate varies over time
based on a number of factors, as was confirmed by Mr. MacDonald’s own expert
(see para. 6 of the trial judgment), the probative value of evidence based on
the elimination rate of the accused will logically depend on the number of
variables controlled for in the elimination rate test. For example, an
elimination rate test that fails to take into account the type of alcohol
consumed, the pattern of consumption and any food consumed by the accused may
be no more helpful for the purpose of establishing his or her elimination rate
under different conditions than a simple average of elimination rates in the
general population. If it were possible to provide credible evidence of the
elimination rate of the accused at the time of the offence, though, that
evidence would be more likely to rebut the presumption in s. 258(1) (d.1)
than mere evidence of the elimination rate of the accused under testing
conditions.
D. Straddle
Evidence
[69]
Straddle evidence, as indicated above, is evidence of a range of blood
alcohol levels whose lowest value lies below the legal limit and whose highest
value lies above it. Like evidence of elimination rates in the general
population, straddle evidence has been treated inconsistently, but generally
with suspicion, by the courts. Since Heideman, in 2002, the
practice in Ontario has been not to admit it. Similarly, British Columbia’s
courts have generally rejected it (see R. v. Moen (2007), 48 C.R. (6th)
361, 2007 BCSC 376). However, at least two appellate courts have admitted
straddle evidence _ the
Saskatchewan Court of Appeal in Gibson and the Quebec Court of Appeal in
D_ry _ but their decisions have not always
been followed.
[70]
Even though in the majority of cases the courts have held that straddle
evidence cannot be used to rebut the statutory presumptions, some of the
leading cases on this point, such as Heideman, have been decided at
least in part on the basis that the straddle evidence was based on elimination
rates in the general population. The court in Heideman rejected both
straddle evidence (of a range of 47 to 95 mg) and evidence of an average
person’s blood alcohol content (71 mg) for the reason that the expert’s
evidence was based on population averages unrelated to the accused and was
therefore “not probative of this appellant’s blood level at the time of the
offence” (para. 14). In subsequent cases, such as R. v. Noros-Adams (2003),
190 Man. R. (2d) 161, 2003 MBCA 103, courts have cited Heideman for the
principle that “in order to rebut the presumption the evidence must satisfy a
court that the accused’s blood alcohol content could not have been above .08”
(para. 9). With respect, I do not believe that Heideman supports this
conclusion. Rather, the court in Heideman stated that the expert
evidence “must indicate that the level was below .08” (para. 13). This is not
the same as requiring the elimination of a scenario in which the blood alcohol
content of the accused was over 80 mg, to paraphrase the Alberta Court of
Queen’s Bench in MacDonald. The former is consistent with the concept
of straddle evidence, while the latter is not.
[71]
Although it appears to be true that in the canvassed cases, the straddle
evidence was based on a range of elimination rates in the general population,
this result is not logically inevitable, and it is important to distinguish the
straddle evidence issue from that of evidence of elimination rates in the
general population. I have already stated that evidence based on such rates is
neither inherently irrelevant nor generally inadmissible. The question
remains, however, whether the fact that the range of blood alcohol levels
adduced by the expert straddles the legal limit renders the evidence incapable
of rebutting the presumption in s. 258(1) (d.1).
[72]
Let us consider a case in which an expert testifies that the blood
alcohol content of the accused at the relevant time would have been between 40
and 82 mg. This evidence is relevant _
both in terms of logical relevance and in the sense that its prejudicial effect
does not substantially outweigh its probative value _ for the purpose of rebutting a presumption that the
blood alcohol content of the accused was above 80 mg. It is not
conclusive, but it may be capable of raising a reasonable doubt. Other
straddle evidence may be less probative, but it will usually be sufficiently
relevant to pass the threshold for admissibility.
[73]
Thus, the usual principles must be applied to determine whether straddle
evidence is admissible. However, the weight given to such evidence by a trier
of fact will depend on the nature of the evidence itself. A wide “straddle
range”, such as those in the present appeals (40-105 mg for Mr. Gibson and
64-109 mg for Mr. MacDonald), cannot be considered evidence to the
contrary of the breathalyzer result, since it does not tend to prove that the
accused was at or under the legal limit. Similarly, a range that is
overwhelmingly above the legal limit may be of limited probative value. A
narrower range, or one whose values lie overwhelmingly below the legal limit,
will generally have greater probative value. In the end, the more that is
known about probabilities within the range, the more probative the evidence may
be.
[74]
Another factor going to weight is whether the breathalyzer result is
consistent with the straddle range. If it is, the Crown can argue that the
straddle evidence supports the breathalyzer result. Although such evidence
would be admissible, it is difficult to imagine that it could leave the trier
of fact with a reasonable doubt. If, on the other hand, the breathalyzer result
is inconsistent with the straddle range, this is simply another factor to be
considered by the trier of fact. It could support either the contention that
the breathalyzer reading was inaccurate, or the contention that the expert’s
testimony is poor evidence of the actual blood alcohol content of the accused
while he or she was driving. That being said, it should be recalled that in
cases where an accused may have continued to absorb alcohol between the time of
the alleged offence and that of the breathalyzer test, the breathalyzer reading
may be consistent with the straddle range even if it lies outside the range.
[75]
In sum, straddle evidence is by its very nature consistent with both
innocence and guilt. Accordingly, such evidence will rarely suffice on its own
to raise a reasonable doubt as to the accuracy of a breathalyzer result
admitted in accordance with the relevant provisions of the Criminal Code .
For the reasons given, however, it is not inadmissible on that ground.
Evidence that does not in itself tend to show that the blood alcohol ratio of
the accused was at or under the legal limit cannot be excluded for that
reason. Here as elsewhere, ultimate sufficiency and threshold admissibility
are conceptually distinct issues. Once straddle evidence is admitted, it will
be left to the trier of fact to determine whether that evidence, considered in
light of the evidence as a whole, raises a reasonable doubt as to the accuracy
of the breathalyzer result. And I hasten to add that the straddle evidence and
the other evidence relied on by the defence will warrant an acquittal only if
it tends to prove that the blood alcohol level of the accused at the relevant
time did not exceed 80 mg. In cases where the range of possible blood alcohol
levels is based on average elimination rates across the population as a whole,
straddle evidence will rarely be sufficient in itself to raise a reasonable
doubt about the presumed fact that the blood alcohol level of the accused
exceeded the legal limit. It nevertheless remains admissible for the reasons
given and may, bearing in mind the evidence as a whole, constitute evidence to
the contrary for the purpose of rebutting the presumption in s. 258(1) (d.1).
Whether a reasonable doubt exists must be assessed in light of all the
evidence, given that the Crown has adduced evidence, in the form of a
breathalyzer test result, of a blood alcohol content over the legal limit at
the time of the offence.
[76]
In my opinion, if we were to foreclose the possibility of straddle
evidence raising a reasonable doubt and rebutting the presumption in s. 258(1) (d.1),
as Justice Charron would do, we would, by emphasizing the fictional nature of
the presumption of identity, inappropriately restrict the ability of an accused
to defend him or herself. As I mentioned above, the wording of the provision
gives no indication of a legislative intent to render the fictional presumption
absolute or irrebutable in practice. It also leaves open the possibility of
discrepancies between test results obtained at the time of testing and the
blood alcohol content of the accused at the time of the offence. Although I
will not delve too far into constitutional issues that have not been raised in
this appeal, a mandatory presumption that requires the accused to raise a
reasonable doubt about a fact that has not been proved by the Crown may prima
facie be a limit on the presumption of innocence protected by s. 11 (d)
of the Canadian Charter of Rights and Freedoms that needs to be
justified under s. 1 . For example, in Phillips, the Ontario Court of
Appeal, held that the presumption of identity, the equivalent of today’s s.
258(1) (c), was prima facie unconstitutional. However, the
presumption was saved under s. 1 of the Charter , in part because
it was rebuttable by means of evidence to the contrary.
[77]
The approach of my colleague, Charron J., is also problematic as regards
the interpretation of the Criminal Code . She simply reads out of the Criminal
Code the legislative distinction between the alcohol level at the time of
the offence and the alcohol level at the time of testing. In so doing, she
denies the possibility that the blood alcohol level of the accused changed
between the time of the alleged offence and the time of testing. In practical
terms, this approach eliminates defences that Parliament decided, despite the
argument that they are liable to raise a degree of uncertainty in the law, to
leave open to the accused in the present version of the Criminal Code .
Straddle evidence is not and ought not to be declared inadmissible. The choice
whether to submit to testing after being charged belongs to the accused. He or
she retains the right to introduce such evidence despite its weaknesses.
E. Application
to the Facts
[78]
Mr. Gibson’s two breathalyzer readings indicated blood alcohol levels of
120 and 100 mg. According to the expert evidence adduced by the defence, based
on the range of elimination rates in the male population of Mr. Gibson’s age,
size and weight, and assuming Mr. Gibson’s evidence of consumption to be true,
his blood alcohol content while he was driving was between 40 and 105 mg. This
evidence is sufficiently relevant to be admissible and is not without
foundation, so it can be given weight by the trier of fact. However, given
that the expert’s straddle evidence is based on elimination rates in the
general population, consists of a wide range of values and includes values
significantly above the legal limit, it does not, as is required to rebut the
presumption in s. 258(1) (d.1), raise a reasonable doubt that Mr.
Gibson’s blood alcohol content actually exceeded 80 mg. Therefore, for
these reasons, I agree with the Court of Appeal that Mr. Gibson’s
acquittal should be quashed and he should be retried.
[79]
The expert evidence adduced by Mr. MacDonald included straddle evidence
based on elimination rates in the general population, and evidence based on
Mr. MacDonald’s own elimination rate according to tests conducted
subsequently to the offence. The straddle evidence indicated a range of 64 to
109 mg. Again, this evidence is admissible. However, it is clear from the
trial judge’s reasons that despite this evidence, he did not have a reasonable
doubt that Mr. MacDonald’s blood alcohol had been over the limit at the
relevant time. Although it is not clear whether this was because he rejected
the evidence of consumption or because the straddle evidence itself was not
sufficiently convincing, the trial judge was entitled to decide on either
basis. In my opinion, it would have been unreasonable for him to find that the
straddle evidence in this case was capable of raising a reasonable doubt.
[80]
The fact that Mr. MacDonald’s blood alcohol content according to the
police, who measured it at 140 mg, is inconsistent with the straddle range does
not necessarily imply that the breathalyzer reading was inaccurate. The trial
judge appears to have concluded, rather, that the range attested to by the
expert did not reflect Mr. MacDonald’s actual blood alcohol content while
he was driving. This may be because the trial judge did not believe the
evidence of consumption or because he simply did not accept the expert
evidence. Even if the straddle evidence did necessarily imply that the
breathalyzer reading was inaccurate, it is well established that this would not
be sufficient to rebut the presumptions in s. 258(1) in the absence of evidence
that the blood alcohol content of the accused did not exceed 80 mg at the
time of the alleged offence. It was open to the trial judge to conclude that
the straddle evidence did not raise a reasonable doubt on this issue.
[81]
The evidence of Mr. MacDonald’s own elimination rate, which supported a
blood alcohol content of 71 mg, was also rejected by the trial judge because
the test used to determine the elimination rate had not sufficiently
approximated the conditions at the time of the alleged offence, which limited
its relevance to the fact Mr. MacDonald was seeking to prove. Thus,
although based on Mr. MacDonald’s elimination rate, the evidence of a blood
alcohol content of 71 mg was not sufficient to raise a reasonable doubt that
Mr. MacDonald’s blood alcohol content had exceeded 80 mg. I see no reason to
interfere with that finding, which was upheld by the Court of Queen’s Bench and
by the Court of Appeal.
III. Disposition
[82]
In the result, both appeals are dismissed.
The reasons of Binnie and Deschamps JJ. were delivered by
[83]
Deschamps J. (dissenting)
— The Court is asked to determine what weight is to be given to “straddle
evidence”. In these reasons, I will discuss the appeals of both Mr. Gibson and
Mr. MacDonald. The trial judge in Mr. Gibson’s case summarized the three
approaches taken by the courts with respect to straddle evidence ((2004), 225
N.S.R. (2d) 16, 2004 NSPC 40). According to the first approach, as held in R.
v. Heideman (2002), 168 C.C.C. (3d) 542 (Ont. C.A.), expert evidence based
on average elimination rates will suffice only if the entire range of blood
alcohol levels does not exceed the legal limit; advocates of this view reject
straddle evidence on the basis that it cannot raise a reasonable doubt.
According to the second approach, the “prevailing direction” approach, as I
understand it, straddle evidence can constitute evidence to the contrary if an
elimination rate of 15 mg of alcohol per 100 ml of blood per hour, which is the
midpoint of the range of elimination rates in the general population, places
the accused at a level that does not exceed the legal limit. Finally,
according to the third approach, the “some evidence” approach, if any part of
the “straddle range” falls below the legal limit, the accused is entitled to an
acquittal.
[84]
I have read Charron J.’s reasons and I accept her description of the
legislative scheme and the presumptions. She adopts the Heideman
approach, which is the most stringent one. In my view, that approach does not
take into account the current state of scientific expertise and the current
wording of the Criminal Code . I have also read LeBel J.’s reasons. He
would adopt a fourth approach that, although based on the prevailing direction
approach, is narrower. With respect, I prefer a standard that gives greater
guidance concerning its application and is consistent with the reasonable doubt
rule. I adopt the prevailing direction approach. Evidence that tends to show
that the blood alcohol concentration of the accused at the time of interception
did not exceed the legal limit based on an elimination rate of 15 mg per hour,
or on the actual elimination rate of the accused according to test results,
will suffice to raise a reasonable doubt.
[85]
Experts have an important role to play in drinking and driving trials.
Courts rely on their expertise, because measuring the blood alcohol
concentration of an accused clearly falls outside a judge’s experience and
knowledge: R. v. Abbey, [1982] 2 S.C.R. 24, at p. 42. Expert testimony
has been accepted for decades on the basis that it can raise a doubt as to
whether the blood alcohol concentration of an accused was over the legal limit.
An expert will typically give an opinion on the blood alcohol concentration of
an accused by taking into consideration his or her sex, age, height and body
weight, and the drinking pattern on the day of the alleged offence. The
estimated blood alcohol concentration is, in most cases, based on average
elimination rates between 10 mg per hour, for slower eliminators, and 20 mg,
for faster eliminators. It is generally agreed that most people eliminate
alcohol within that range. This type of expert evidence is presented as a range
of blood alcohol levels which will either fall entirely below the legal limit
or “straddle” that limit. Experts can also conduct post-offence tests in which
they attempt to calculate the personal elimination rate of the accused, and
then use that rate to estimate a blood alcohol concentration. What is at issue
in these appeals is the probative value of straddle evidence and of elimination
rates obtained from post-offence testing.
[86]
In my view, the prevailing direction approach can be used to justify an
acquittal, because the evidence presented at trial need only raise a reasonable
doubt. “[A] reasonable doubt is a doubt based on reason and common sense which
must be logically based upon the evidence or lack of evidence”: R. v.
Lifchus, [1997] 3 S.C.R. 320, at para. 30 (emphasis added). The following
comment by Fish J.A., as he then was, is apposite to the present appeals: “The
‘evidence to the contrary’ to which it refers must tend to show — but it
need not prove — that the blood‑alcohol level of the accused did not
exceed the statutory limit at the relevant time. The exculpatory evidence, in
other words, must have probative value, but it need not be so cogent as to
persuade the court” (R. v. Dubois (1990), 62 C.C.C. (3d) 90 (Que. C.A.),
at p. 92 (emphasis added; emphasis in original deleted)). Therefore, when an
accused adduces straddle evidence, that evidence need not prove his or her
blood alcohol level at the time of interception. It is sufficient that the
evidence tends to show that the blood alcohol level of the accused did not
exceed the legal limit at the material time.
[87]
There is nothing arbitrary, imprecise or new about using an average
elimination rate of 15 mg per hour as a marker when evaluating the probative
value of straddle evidence. Dr. Jerry L. Malicky, Mr. MacDonald’s expert,
testified that most of the 5,000 people he has tested eliminated alcohol
in the range between 15 mg and 20 mg. Dr. Malicky further indicated that the
American Medical Association has adopted an average elimination rate of 18 mg
and that the RCMP Crime Laboratory has adopted a rate of 15 mg. Dr. Malicky’s
expert testimony provides scientific information falling outside a judge’s
experience and knowledge according to which members of the general population
tend to eliminate alcohol at a rate faster than 15 mg. Unless such evidence is
undermined during cross-examination by a circumstance specific to the case that
renders it inapplicable, or is contradicted by other expert evidence, a judge
can acquit an accused if the prevailing direction of the straddle range favours
a level that does not exceed the legal limit. A conclusion, based on an
elimination rate of 15 mg, that the blood alcohol concentration of an accused
did not exceed the legal limit would be based on credible and persuasive expert
evidence. This evidence would tend to show that it is more likely than not that
the blood alcohol level of the accused did not exceed that limit. The 15 mg
marker offers an easily applicable standard on the basis of which an accused
need only raise a reasonable doubt to the effect that his blood alcohol content
may not have exceeded the legal limit.
[88]
For this Court to accept Dr. Malicky’s position would amount only to
acknowledging the factual findings of trial judges across the country. R.
Solomon and E. Chamberlain note in “Calculating BACs for Dummies: The Real‑World
Significance of Canada’s 0.08% Criminal BAC Limit for Driving” (2004), 8 Can.
Crim. L.R. 219, at p. 232, that an elimination rate of 15 mg per hour
“seems to be widely accepted as ‘average’ in Canada”. These authors consider 15
mg to be a more conservative estimate than the figures used by the U.S.
National Highway Traffic Safety Administration (“NHTSA”) (p. 233). According to
the NHTSA, the average elimination rate for moderate drinkers is 17 mg, whereas
the average rate for heavy drinkers is 20 mg. The NHTSA also indicates that
less than 20 percent of the population would exhibit an elimination rate of 12
mg (p. 230). These figures correspond to those of Dr. Malicky and suggest that
most members of the general population tend to eliminate alcohol at a rate
faster than 15 mg.
[89]
Dr. Malicky’s testimony is also consistent with the expert evidence
endorsed by the Quebec and Saskatchewan courts of appeal. In R. v. Déry,
[2001] Q.J. No. 3205 (QL) (C.A.), the expert evidence adduced at trial showed
that the blood alcohol level of the accused would have been in a range
straddling the legal limit. However, the expert testified that, according to
his own and other scientific studies, an elimination rate of 15 mg per hour
applied to 95 percent of the population. The Quebec Court of Appeal accordingly
accepted that expert evidence based on an elimination rate of 15 mg could
constitute evidence to the contrary: Déry, at paras. 28-32; R. v.
Bellemare, [2001] Q.J. No. 3304 (QL) (C.A.), at paras. 15-20; R. v.
Nault, [2001] Q.J. No. 3201 (QL) (C.A.), at paras. 19-22; R. v. Thiffeault,
[2001] Q.J. No. 3198 (QL) (C.A.), at paras. 16-20. Similarly, in R. v.
Gibson (1992), 72 C.C.C. (3d) 28 (Sask. C.A.), expert evidence showed that
the range of the accused straddled the legal limit. However, the expert had
testified at trial that, although the range straddled the legal limit, the
blood alcohol content of the accused would, based on an average, have been 79
mg. The majority of the Saskatchewan Court of Appeal concluded that such
evidence could constitute evidence to the contrary.
[90]
According to critics, straddle evidence is unpersuasive because it does
not exonerate everyone, as it does so only for those who are not slow
eliminators. They add that straddle evidence establishes a range of possible
blood alcohol levels without indicating the actual level of the accused. These
are legitimate concerns. However, as can be seen from Dr. Malicky’s testimony,
there is a body of scientific evidence that shows that members of the general
population tend to eliminate alcohol at a rate faster than 15 mg per hour. It
would therefore be speculative to assume, without any evidence, that a given
accused is different from the majority of the general population and is a slow
eliminator. Unless the scientific information that supports using 15 mg as a
marker is contradicted by persuasive expert evidence, a judge should acquit if
the prevailing direction of the straddle range favours a level that does not
exceed the legal limit. The accused has no persuasive burden and accordingly
does not need to prove that his or her blood alcohol level actually did not
exceed the legal limit. This in turn means that the accused need not definitely
establish that he or she is not a slow eliminator of alcohol.
[91]
The prevailing direction approach affords the accused a defence that is
sufficiently complete without requiring post-offence testing. As a matter of
judicial policy, I agree with Charron J. that requiring accused persons to
submit to drinking tests should not be encouraged by the courts. If an accused chooses
to submit to post‑offence testing, care should be taken to strike an
appropriate balance between the need for the evidence and the concern for his
or her safety and health. Nevertheless, post-offence testing is not, per se,
irrelevant or lacking in probative value. I take issue with the view that since
the conditions prevailing at the time of the offence cannot be replicated,
there is nothing to be gained from post-offence testing. This view is
unsupported by evidence. Just as evidence of average elimination rates in the
general population is not discredited simply because such rates do not
replicate the situation of an accused, evidence of post-offence testing
designed to determine the elimination rate of an individual accused should not
be rejected for that reason alone. An elimination rate based on test results
may constitute evidence that tends to show that an accused eliminates alcohol
at a rate faster than 15 mg per hour. Although the weight given to post-offence
testing may depend on a number of variables, this should not be interpreted as
requiring replication of the conditions of absorption, which is an issue that
arises in Mr. MacDonald’s case.
[92]
I will now say a few words on the application of the principles to Mr.
Gibson’s case before turning to Mr. MacDonald’s appeal.
[93]
At Mr. Gibson’s trial, the expert for the defence testified that Mr.
Gibson’s blood alcohol content while he was driving would, based on average
elimination rates, have been between 40 and 105 mg. The trial judge was
satisfied that the prevailing direction of the range favoured a level that did
not exceed the legal limit, and he believed that this was sufficient evidence
for an acquittal. I agree. I would therefore allow the appeal, set aside the
decision of the Court of Appeal and restore the Nova Scotia Supreme Court’s
decision to affirm the trial judge’s judgment acquitting Mr. Gibson on the
charge of driving with a blood alcohol level exceeding the legal limit.
[94]
In Mr. MacDonald’s case, Dr. Malicky testified that Mr. MacDonald’s
blood alcohol concentration would, based on average elimination rates, have
been between 64 and 109 mg. However, Mr. MacDonald’s post‑offence test
established that his blood alcohol content should have been 71 mg based on a
personal elimination rate of 18.5 mg per hour.
[95]
The test conducted by Dr. Malicky involved absorbing, under fasting
conditions, enough alcohol over a period of five minutes to get the subject’s
blood alcohol content into a target range of around 50 or 60 mg (A.R., at p.
80). Then, using an approved instrument, he took 11 samples of the subject’s
breath and prepared a graph showing the relationship between blood alcohol and
time. He subsequently estimated the subject’s elimination rate (A.R., at p.
78). Dr. Malicky also testified that he never uses beer as a testing beverage
because it takes a significant amount of time for beer to be absorbed. He
instead uses vodka mixed with soft drinks, which allows for fairly rapid
absorption to occur. The use of vodka rather than beer insures that the subject
has absorbed all the alcohol (A.R., at p. 73).
[96]
As Solomon and Chamberlain point out, a blood alcohol concentration “is
simply the ratio of the weight of pure alcohol in a given volume of
blood” (p. 230 (emphasis added; emphasis in original deleted); see also p.
223). Consequently, using a liquid that contains 40 percent pure alcohol, like
most types of liquor, instead of one that contains 5 percent, like most types
of beer, or 12 percent, like many types of wine, will not affect the value of
the test. Only “pure alcohol” is relevant for the purpose of determining the
blood alcohol concentration. Moreover, post-offence testing under fasting
conditions is less favourable to the accused: “If an individual eats before or
while drinking, this would slow down the rate at which the alcohol is absorbed
into the blood and, thus, lower the individual’s peak [blood alcohol
concentration]” (Solomon and Chamberlain, at p. 230 (emphasis added); see also
p. 233 and A.R., at p. 73).
[97]
Because Dr. Malicky was concerned with the elimination rate and not the
absorption rate, he did not attempt to reproduce Mr. MacDonald’s drinking
pattern on the day of the alleged offence (A.R., at p. 81). Although he
acknowledged that elimination rates can vary from occasion to occasion (A.R.,
at p. 70) and that the post‑offence test may not represent Mr.
MacDonald’s rate of elimination at the material time (A.R., at p. 81), nothing
in his testimony suggests that factors such as fasting or type of alcohol will
lead to a higher elimination rate. The record is silent on how these variables
affect elimination rates. I find it highly troubling and offensive for a court
to impeach an expert’s credibility by dismissing post‑offence testing,
without an indication that the testing conditions were inadequate, on the basis
that it does not adequately replicate the conditions at the time of
interception. Testing conditions are in the domain of experts, not of the
courts. Courts need evidence in order to question the weight of expert
testimony. Moreover, Dr. Malicky’s testimony in other cases where the Crown
questioned testing conditions demonstrates how perilous it is for courts to
speculate that the result of a post-offence test is biassed in favour of an
accused: R. v. Milne (2006), 43 M.V.R. (5th) 167, 2006 ABPC 331, and R.
v. Hughes, [2007] A.J. No. 740 (QL), 2007 ABPC 180.
[98]
It is open to the Crown to undermine the weight of evidence of
post-offence testing by either cross-examining the expert or adducing
contradictory expert evidence. The Crown failed to do so at Mr. MacDonald’s
trial. I am unable to conclude, based on the expert evidence presented in
court, that Dr. Malicky’s post-offence testing is unpersuasive. Although Mr.
MacDonald’s elimination rate according to Dr. Malicky’s test may not be the
same as his rate on the day of the offence, nothing in the record suggests that
any variation between the actual and tested elimination rates would be material
or would cast doubt on the usefulness of the expert evidence.
[99]
Nevertheless, Dr. Malicky’s post-offence tests can constitute evidence
to the contrary only if Mr. MacDonald’s consumption scenario is found to be
credible. The trial judge made no express findings on whether he accepted Mr.
MacDonald’s testimony about his consumption. He rejected Dr. Malicky’s evidence
on the basis that the midpoint of the straddle range was above the legal limit
and that the food and the type of alcohol consumed had not been taken into
account in the post-offence tests. Since he had dismissed Dr. Malicky’s expert
testimony, the trial judge found Mr. MacDonald guilty without making any
findings concerning his credibility. This Court cannot enter an acquittal, as a
finding on Mr. MacDonald’s credibility would have had to be made first. I would
therefore allow the appeal, set aside the Court of Appeal’s decision and order
a new trial on the charge of driving with a blood alcohol level exceeding the
legal limit.
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 in any proceedings under
subsection 255(2) or (3),
. . .
(c) where
samples of the breath of the accused have been taken pursuant to a demand made
under subsection 254(3), if
(i) [Not
in force]
(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, in the absence of evidence to the
contrary, proof that the concentration of alcohol in the blood of the accused
at the time when the offence was alleged to have been committed was, where the
results of the analyses are the same, the concentration determined by the analyses
and, where the results of the analyses are different, the lowest of the
concentrations determined by the analyses;
(d.1) where
samples of the breath of the accused or a sample of the blood of the accused
have been taken as described in paragraph (c) or (d) under the
conditions described therein and the results of the analyses show a
concentration of alcohol in blood exceeding eighty milligrams of alcohol in one
hundred millilitres of blood, evidence of the result of the analyses is, in the
absence of evidence tending to show that the concentration of alcohol in the
blood of the accused at the time when the offence was alleged to have been
committed did not exceed eighty milligrams of alcohol in one hundred
millilitres of blood, proof that the concentration of alcohol in the blood of
the accused at the time when the offence was alleged to have been committed
exceeded eighty milligrams of alcohol in one hundred millilitres of blood;
(g) where
samples of the breath of the accused have been taken pursuant to a demand made
under subsection 254(3), a certificate of a qualified technician stating
(i) that
the analysis of each of the samples has been made by means of an approved
instrument operated by the technician and ascertained by the technician to be
in proper working order by means of an alcohol standard, identified in the
certificate, that is suitable for use with an approved instrument,
(ii) the results of the analyses so made, and
(iii) if the samples were taken by the technician,
(A) [Not in
force]
(B) the time
when and place where each sample and any specimen described in clause (A) was
taken, and
(C) that each
sample was received from the accused directly into an approved container or
into an approved instrument operated by the technician,
is evidence of the facts alleged in the certificate without proof of the
signature or the official character of the person appearing to have signed the
certificate;
Appeals dismissed, Binnie
and Deschamps JJ.
dissenting.
Solicitors for the appellant Robert Albert Gibson: Arnold,
Pizzo, McKiggan, Halifax; Pressé & Mason, Bedford, N.S.; Garson, Pink,
Halifax.
Solicitors for the appellant Martin Foster
MacDonald: Alan D. Gold Professional Corporation, Toronto.
Solicitor for the respondent Her Majesty the Queen
(31546): Public Prosecution Service of Nova Scotia, Halifax.
Solicitor for the respondent Her Majesty the Queen
(31613): Attorney General of Alberta, Calgary.
Solicitor for the intervener the Attorney General of
Ontario: Attorney General of Ontario, Toronto.