III. Because the breathalyzer operator was occupied with another driver, the appellant had to wait approximately one hour for her testing session. In the interim, the appellant went to the washroom at 1:33 a.m., returning at 1:36 a.m. At 1:42 a.m., the appellant had a glass of water. At 1:56 a.m. the appellant had a second glass of water, and entered the washroom a second time. At 2:14 a.m. she attended at the washroom a third time, returning at 2:17 a.m.
IV. The appellant provided breath samples at 2:17 a.m. and 2:37 a.m., both of which produced a reading of 180 mg of alcohol in 100 ml of blood. Shortly after the breath testing session, the appellant was in the process of being fingerprinted and photographed when she advised the police officer that she was an alcoholic and that she had consumed two miniature 50 ml plastic bottles of vodka while in the washroom, to calm herself. The appellant gave the two bottles to the officers. Constable Hardman testified that the bottles contained no residue, and did not smell of vodka.
V. At trial, the respondent Crown relied on the test results to prove that the concentration of alcohol in the appellant's blood at the time of the alleged offence exceeded 80 mg of alcohol in 100 ml of blood. The respondent did not call an expert to interpret those results and had to rely on the presumption contained in s. 258(1) (c) of the Criminal Code . On August 23, 1990, Judge Reilly of the Provincial Court of Ontario found that the presumption did not apply and acquitted the appellant.
VI. On July 15, 1991, Clarke J. of the Ontario Court (General Division) dismissed the respondent's appeal: (1991), 30 M.V.R. (2d) 13. On September 10, 1992, the Court of Appeal for Ontario allowed the respondent's appeal, set aside the acquittal, directed that the appellant be convicted of the offence under s. 253 (b) of the Criminal Code , and remitted the matter to the Ontario Court (General Division) for the imposition of the appropriate penalty: (1992), 10 O.R. (3d) 215, 76 C.C.C. (3d) 249, 39 M.V.R. (2d) 157, 16 C.R. (4th) 220, 58 O.A.C. 47. Arbour J.A. dissented.
II. Relevant Statutory Provisions
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 proclaimed]
(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;
...
(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 proclaimed]
(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; [Emphasis added.]
III. Decisions Below
A. Provincial Court (Criminal Division)
VII. Reilly Prov. Ct. J. delivered oral reasons. He stated that "when there is a statutory departure from the normal approach to strict proof within our system of justice, the section must be interpreted strictly". Furthermore, "it must be interpreted in a way consistent with the interest of those impacted by the effect of the statutory presumption". Reilly Prov. Ct. J. then stated that he preferred to believe that Parliament intended that "which it appears to have said, that all the evidence that is required to the contrary is that there be some evidence that the blood alcohol concentration was different from that revealed by the machine". Reilly Prov. Ct. J. concluded that:
I will say in all candor, that even had the matter remained as an application for nonsuit prior to electing whether or not to call evidence, I would have granted the application. I agree entirely that it is not the function of a judge on an application for directed verdict or nonsuit, to assess credibility or to weigh the evidence. I agree as well, that a court may, when the trial is completed, accept or reject all or any of the evidence, but there must be some basis for rejection. ... In my view, there is no basis upon which a trier of fact could have anything other than a reasonable doubt on this evidence. However suspicious a trier of fact might be, a reasonable trier of fact would have to believe that she may have (as she said she did) consumed that alcohol. The Court is not even able to assess her credibility as a witness on the stand.
In any event, weighing the evidence, I would have, at the very least, some reasonable doubt.
VIII. Reilly Prov. Ct. J. added that it might well be that the appellant was an alcoholic and that she consumed some vodka or something else from the bottles she kept on her person for emergencies. Therefore, "it may well be that the blood alcohol concentration revealed by the machine was different from that at the time of driving". Reilly J. concluded that it was not necessary for the defence to establish more than the section appeared to require, that being that "the blood alcohol concentration would have been within permissible limits, or lower than the 80 milligrams percent, only that it was different from the concentration revealed by the breathalyzer".
B. Ontario Court (General Division) (1991), 30 M.V.R. (2d) 13
IX. Clarke J. stated that the issue was whether there was "evidence to the contrary" within the meaning of s. 258(1) (c) of the Criminal Code such that the respondent could not rely on the breathalyzer tests as proof of the concentration of alcohol in the blood of the appellant at the time she had care and control of the motor vehicle. Clarke J. was of the view that "any evidence which raises a reasonable doubt in the mind of the trier of fact that the blood alcohol level at the time of the breathalyzer test was higher than that at the time of driving would be `evidence to the contrary' pursuant to s. 258(1)(c)" (p. 15). He stated (at p. 15) that:
... if evidence is accepted that the accused consumed alcohol after driving but before the breath tests, the trial Judge can take judicial notice that the blood alcohol level would be greater but cannot take judicial notice as to what extent it would be greater ... he would be left with a reasonable doubt as to what the blood alcohol level was at the time of the test.
To apply the presumption in s. 258(1)(c) when one entertains a reasonable doubt as to the blood alcohol level at the time of the test would found a conviction on evidence of which there is a reasonable doubt as to an essential element of the offence. That would be wrong in my view ... convictions cannot be founded on evidence to which there is a reasonable doubt if it is evidence upon an essential issue, as there then would be a violation of the presumption of innocence.
Clarke J. disagreed with the cases that indicated that "in order to be evidence to the contrary, the evidence must tend to show that despite the alcohol consumed after driving the blood alcohol level at the time of driving was within prescribed limits" (p. 15). Clarke J. stated that, if a trial judge could not take judicial notice of the extent to which alcohol consumed raised blood alcohol levels, "I cannot see how the above determination can be made". Clarke J. concluded (at pp. 15-16) that:
It seems to me that the whole issue is a matter for Parliament to clarify in an amendment to the Criminal Code of Canada .
In this matter the learned trial Judge found that the alcohol consumed by the [appellant], after driving, raised a reasonable doubt as to whether the blood alcohol level at the time of the test was the same as at the time of driving and therefore he had a reasonable doubt as to an essential element and he acquitted the [appellant].
With this result I agree, although I have stated the matter somewhat differently. The appeal is therefore dismissed.
C. Ontario Court of Appeal (1992), 10 O.R. (3d) 215
Majority
X. Galligan J.A. stated that the issue was whether "evidence to the contrary" sufficient to rebut the presumption was:
(a)evidence which would tend to show that the blood alcohol level at the time of the test was not the same as that at the time of the driving, or
(b)evidence which tends to show that the blood alcohol level at the time of the driving was not above the maximum permissible level of 80 mg of alcohol in 100 ml of blood.
XI. If evidence raises a reasonable doubt that the blood alcohol level was over 80 mg of alcohol in 100 ml of blood at the time of the driving, the accused should be acquitted. However, when courts discuss evidence which is legally capable of amounting to "evidence to the contrary", they do so in the restricted sense of whether it is legally capable of rebutting the presumption. Galligan J.A. then stated (at pp. 221-22) that:
If, in order for evidence to constitute "evidence to the contrary", it must tend to show that the blood alcohol level at the time of driving was not over 80 mg of alcohol in 100 ml of blood, it would be irrelevant whether the blood alcohol levels at the time of driving and at the time of testing were or were not the same. On the other hand, if, in order for evidence to constitute "evidence to the contrary", it need only tend to show that blood alcohol levels at the time of driving and at the time of testing were not the same it would be irrelevant whether the evidence tended to show that at the time of driving the blood alcohol level was either above or below the permissible limit. I think it is one thing to show that the blood alcohol level at the time of driving and at the time of testing were not the same. It is quite another thing, and perhaps a more difficult thing, to show that the blood alcohol level at the time of driving was within the permissible limit.
It is my opinion that this court must accept one or the other position.
XII. Galligan J.A. noted that two years after it decided R. v. Moreau, [1979] 1 S.C.R. 261, the Supreme Court of Canada was again called upon to decipher what kind of evidence was legally capable of amounting to "evidence to the contrary". He concluded that the decision of the Supreme Court of Canada in R. v. Crosthwait, [1980] 1 S.C.R. 1089, removed any ambiguities that had led to erroneous interpretations of R. v. Moreau. In order for evidence to amount legally to "evidence to the contrary" in s. 258(1)(c), the evidence must tend to show that at the time of the alleged offence the accused person's blood alcohol level did not exceed 80 mg of alcohol in 100 ml of blood, viz. that the blood alcohol level was within the lawful limit at the time of driving. Evidence only showing that the blood alcohol concentration at the time of the test was not the same as at the time of the offence would not be "evidence to the contrary" legally capable of rebutting the statutory presumption.
XIII. Galligan J.A. pointed out that this is the interpretation most often accepted by provincial appellate courts: R. v. White (1986), 41 M.V.R. 82 (Nfld. C.A.); R. v. Creed (1987), 7 M.V.R. (2d) 184 (P.E.I.S.C.A.D.); R. v. Kays (1987), 3 M.V.R. (2d) 209 (N.S.S.C.A.D.); R. v. Gallagher (1981), 64 C.C.C. (2d) 533 (N.B.C.A.); R. v. Dubois (1990), 62 C.C.C. (3d) 90 (Que. C.A.); Batley v. The Queen (1985), 32 M.V.R. 257 (Sask. C.A.). Concluding his review, Galligan J.A. stated (at p. 228):
...it is my view that there should be consistency in the interpretation of an important provision of the law which has as its object the reduction of the widespread death and destruction caused by drinking drivers. I have concluded that this court should follow what I view to be the overwhelming weight of appellate jurisprudence across the country.
XIV. Applying this interpretation to this appeal, the post-driving drinking evidence did not tend to show even the possibility that the accused's blood alcohol level at the time of driving was within the permissible limit. It was thus not legally "evidence to the contrary" within the meaning of s. 258(1)(c).
XV. Galligan J.A. also stated that his interpretation of "evidence to the contrary" was more in keeping with Parliamentary intention in legislating against drinking and driving which is a serious problem that endangers the lives and safety of innocent persons. The legislative scheme tests blood alcohol concentration through approved breathalyzers. To prove the test results and avoid unreasonably large public expenditures on expert witnesses, a statutory presumption based on strict requirements relating to the taking of samples was chosen. The presumption could only have been intended to prove either that:
(a)at the time of driving the accused person had a concentration of alcohol in his or her blood of more than 80 mg of alcohol in 100 ml of blood, or
(b)at the time of driving the accused person had a certain, specific concentration of alcohol in his or her blood.
XVI. Given that the offence is driving with a blood alcohol concentration of more than 80 mg of alcohol in 100 ml of blood, the presumption must have been intended to prove only that the driver had a concentration exceeding 80 mg of alcohol in 100 ml of blood at the time of the offence. Evidence "contrary" to the factual presumption that the driver's blood alcohol concentration was over 80 at the time of the offence would therefore have to be evidence which would tend to show that the driver's blood alcohol concentration was not over 80 mg of alcohol in 100 ml of blood. The presumption was a vitally important element of the legislative scheme and without it, it would be feasible to prosecute only a small number of the offences detected by breathalyzer testing. To interpret "evidence to the contrary" as including evidence which shows only that the concentrations at the time of driving and testing were not the same would permit rebuttal of the presumption by the presentation of evidence which really only shows the possibility of some uncertainty about that element of the scheme.
XVII. Thus, Galligan J.A. allowed the appeal, and entered a conviction.
Dissent
XVIII. Arbour J.A. began her dissent by noting that she was not satisfied that Galligan J.A.'s interpretation and that of other provincial appellate authority accorded with the wording of the Criminal Code provision and Parliamentary intention. Considering R. v. Crosthwait, supra, she noted that s. 258(1)(c) serves a function different from that of s. 258(1)(g). Section 258(1) (c) of the Criminal Code contains a presumption which permits an inference to be drawn that the blood alcohol level of the accused at the time of the alleged offence is the same as it was when the breathalyzer test was administered, provided that certain conditions are met, including the requirement that the breath test be done as soon as practicable, but no more than two hours after the accused was required to provide a breath sample (at pp. 234-35):
The presumption is thus a measure enacted to give effect to the provision which permits a delay of up to two hours before the breath test is performed. Without the benefit of the presumption, the Crown would be left with a reading two hours after the event which, arguably, would not necessarily reflect accurately the blood alcohol content of the accused at the time of the alleged offence. The presumption therefore assists the Crown in dispensing with the need to bridge the gap, by expert evidence, between the offence and the delayed taking of a breath sample.
This is not an insignificant benefit as blood alcohol levels do not remain constant over time and, in the absence of such a presumption, readings presumed accurate at one point in time could be of limited assistance in establishing the levels two hours before....
In my opinion, it is in that context that the expression "in the absence of evidence to the contrary" in s. 258(1)(c) must be understood. If the breath samples were taken in accordance with that section, it will be presumed, everything else being equal, that the reading at the time of the offence would have been the same as the reading at the time of the test. The accuracy of the readings at the time of the test, as stated in the certificate of the analyst, is presumed, by the operation of s. 24 [now s. 25] of the Interpretation Act , "in the absence of evidence to the contrary".
XIX. As recognized in R. v. Gibson (1992), 72 C.C.C. (3d) 28, case law establishes two distinct sets of circumstances in which it has been argued that there was "evidence to the contrary" within the meaning of s. 258(1)(c) and hence the presumption should not apply. First, where evidence is tendered to show that the reading was inaccurate at the time it was taken, for example cases where the evidence suggests inaccurate reading results, margin of error in the breathalyzer apparatus, or the quantity of alcohol consumed could not have produced the results recorded: see R. v. Moreau, supra, R. v. Crosthwait, supra, and R. v. Davis (1973), 14 C.C.C. (2d) 513 (B.C.C.A.). Second, where evidence is tendered to show that the blood alcohol level at the time of the offence was likely to have been different from what it was at the time of the test, for example cases where there is evidence that the accused consumed some alcohol after his or her arrest, or testifies as to his weight, quantity drunk, and expert evidence to suggest that the level at the time of driving would likely have been within the permissible limit. In the former group of cases, the Supreme Court has held that the presumption is only displaced by evidence capable of raising a doubt that the results were inaccurate to the point that the blood level of the accused at the relevant time would have been, on that evidence, below the prohibited level.
XX. Arbour J.A. stated (at p. 237):
Section 258 refers to both the presumption of accuracy and to what might be called the presumption of identity; it presumes that the reading at hour X is the same as the reading would have been at hour Y. This presumption can be displaced by evidence to the contrary; that is, any evidence which raises a reasonable doubt that the levels at the two different points in time were in fact identical. When the Crown loses the benefit of the presumption, for instance because of evidence indicating that the accused consumed alcohol between the two points in time, the Crown does not lose the benefit of the presumption that the certificate accurately represents the blood alcohol level at the time of the test. The Crown may still prove, with or without recourse to expert evidence, that the blood level of the accused at the time of the offence was over 80. One of the relevant pieces of evidence will be, of course, the reading taken by the breathalyzer, the accuracy of which is not disputed.
The certificate would still be admissible as proof of its content, as long as it complied with s. 258(1)(g), even if the Crown could not rely on the presumption contained in s. 258(1)(c). Arbour J.A. continued (at p. 238):
If a breathalyzer test, taken well within two hours of the arrest, shows a very high concentration of alcohol in the blood, and the accuracy of that reading is not in issue, evidence that the accused consumed a very small amount of alcohol after his arrest, although it may be sufficient to raise a doubt that the results would have been the same had the test been administered at the time of the arrest, may be insufficient to raise any doubt that his blood alcohol content was below 80 at the time of the alleged offence.
In the same way, I see no difficulty with the defence introducing evidence tending to show that the blood level of the accused at the time of the offence was higher than it was at the time of the breathalyzer test. In that case, the Crown would lose the benefit of the presumption that the levels were identical, but the accused would still have to be convicted on the strength of all the evidence which would inescapably point to his blood alcohol level having been above the permissible limit at the time of the offence.
XXI. According to Arbour J.A., when the presumption of identity is in question, an accused must introduce evidence capable of raising a reasonable doubt that his blood alcohol content at the time of the alleged offence was not the same as the content recorded by the breathalyzer. There is no reason to require that "the difference be of any particular magnitude" (p. 240). The presumption "permits the Crown to rely on a legal fiction in order to prove a fact essential to conviction". Furthermore, if that advantage were removed, by "evidence to the contrary", "it is still open to the Crown to prove that fact by other evidence". Arbour J.A. concluded (at p. 240) that:
To the extent that Crosthwait, supra, held that "evidence to the contrary" in s. 258(1)(c) means evidence tending to show that the accused's blood alcohol content at the time of the offence was below the permissible limit, it should not be applied in a case such as the present one.
On this basis, both the trial judge and the summary conviction appeal court were correct in their interpretation of s. 258(1)(c) and Arbour J.A. would have dismissed the appeal.
IV. Analysis
(i) Introduction
XXII. At the outset, I must state that I am in agreement with the dissenting judgment of Arbour J.A. of the Ontario Court of Appeal. Evidence to the contrary, as articulated in s. 258(1) (c) of the Criminal Code , means evidence sufficient to show that the temporal presumption, or as Arbour J.A. calls it the presumption of identity, should not operate to deem the blood alcohol level of the motorist at the time of breathalyzer testing to be the same as the blood alcohol level at the time of driving. The central issue of this appeal is the manner in which this presumption may be rebutted. Before discussing that issue directly, I think it important to review the operation of the presumptions that are employed in the Criminal Code in this area and to follow with a brief review of the jurisprudence which I believe has introduced some confusion into the area.
(ii) Presumptions of Accuracy and Identity
XXIII. The scheme established in the Criminal Code for proving the offence of "over 80" contains presumptions to assist the Crown in surmounting two important evidentiary hurdles. But for these presumptions, the Crown's task would be significantly more difficult. It is crucial, therefore, to keep in mind that presumptions are merely legal or evidentiary shortcuts designed to bridge difficult evidentiary gaps, and that they are rebuttable upon the leading of "evidence to the contrary". If such evidence to the contrary is led, the Crown can still proceed to try to prove its case without the benefit of these evidentiary shortcuts.
XXIV. To adopt the terminology of Arbour J.A., s. 258 refers to two presumptions, the presumption of accuracy (s. 258(1)(g)) and the presumption of identity (s. 258(1)(c)). The first presumption addresses the dilemma of how to prove in court what the accused's blood alcohol content was at the time of testing on the breathalyzer. Section 258(1)(g) of the Code provides:
(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 proclaimed]
(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;
XXV. In addition, s. 25 of the Interpretation Act , R.S.C., 1985, c. I-21 , reads:
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. [Emphasis added.]
XXVI. Clearly, the result of these two provisions is that a presumption that the reading received on the breathalyzer provides an accurate determination of the accused's blood alcohol level at the time of the testing is established. Hence, the certificate can be tendered in evidence to prove what this blood alcohol level was. However, if the accused leads or points to "evidence to the contrary" which tends to show that, in fact, his or her blood alcohol level, at the time of testing, was not that shown on the certificate, then the certificate is no longer proof of that fact. Therefore, for the Crown to be successful it must prove the accused's blood alcohol level some other way. Indeed, the Crown may still prove that the blood alcohol level of the accused at the time of the offence was over 80 mg of alcohol in 100 ml of blood. This "presumption of accuracy" relates to the accuracy of the readings at the time of the test, as stated in the certificate of analysis, and is presumed by the operation of s. 25 of the Interpretation Act , in the absence of "evidence to the contrary". This is not, however, the presumption at issue in this case.
XXVII. What is at issue in the instant case is the second presumption which is set out in s. 258(1)(c), which reads:
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; [Emphasis added.]
XXVIII. This presumption assists the Crown over the hurdle of having to prove, in every case, that the accused's blood alcohol level at the time of driving was the same as his or her blood alcohol level at the time of testing, which could be as much as two hours later. Section 258(1)(c) presumes that the breathalyzer reading at the time of testing is the same as the reading would have been at the time of driving. If all of the conditions of the section are met, then the presumption applies, unless there is some evidence to the contrary. This presumption is the so-called presumption of identity.
XXIX. I agree with the following remarks of Arbour J.A., found at p. 237, which distinguish between the two presumptions:
This presumption [of identity] can be displaced by evidence to the contrary; that is, any evidence which raises a reasonable doubt that the levels at the two different points in time were in fact identical. When the Crown loses the benefit of the presumption, for instance because of evidence indicating that the accused consumed alcohol between the two points in time, the Crown does not lose the benefit of the presumption that the certificate accurately represents the blood alcohol level at the time of the test. The Crown may still prove, with or without recourse to expert evidence, that the blood level of the accused at the time of the offence was over 80. One of the relevant pieces of evidence will be, of course, the reading taken by the breathalyzer, the accuracy of which is not disputed.
XXX. It is very important to keep these two presumptions separate. They arise from two entirely different subsections, they help the Crown over two entirely different evidentiary hurdles, and consequently the evidence necessary to rebut them is different. Also, as I will describe below, courts frequently have had difficulty with the distinct nature of these presumptions and have confused them, a matter to which I shall now turn.
(iii) The Jurisprudence
XXXI. In R. v. Moreau, supra, the accused had tested 90 mg of alcohol in 100 ml of blood. He called an expert witness who testified that Borkenstein breathalyzers were subject to a possible margin of error of 10 mg. The issue was whether this was "evidence to the contrary" within s. 237(1)(c) (now s. 258(1)(c)). Beetz J. held that such evidence was not "evidence to the contrary" as it was general evidence aimed at denying the presumption. Specific evidence of the accused's condition would, however, have been admissible. At page 271 Beetz J. stated there had to be evidence
which tends to establish that the proportion of alcohol in the blood of the accused at the time when the offence was alleged to have been committed was not the same as that indicated by the result of the chemical analysis. There is no such evidence in the case at bar. Apart from the certificates, there is no evidence of any kind directed at showing what was the proportion of alcohol in the blood of the accused at the time when the offence was alleged to have been committed.
Beetz J. thus related the "evidence to the contrary" to the nature of the presumption.
XXXII. What has caused difficulty in appellate interpretation of Moreau, supra, is that Beetz J. additionally referred with approval to McFarlane J.A.'s dicta in R. v. Davis, supra, at p. 516, that:
...the concluding part of the subsection means that the result of the chemical analysis is proof of the proportion of alcohol to blood at the time of the offence in the absence of evidence that the proportion at that time did not exceed 80 to 100. Any evidence, therefore, tending to show that at the time of the offence the proportion was within the permitted limits is "evidence to the contrary" within the meaning of the subsection. [Emphasis added.]
XXXIII. The above passage created ambiguity and has been relied upon by provincial appellate authority. Nonetheless, it is important to note that the two passages may be reconciled to state that any evidence showing that the proportion is within legal limits does not preclude evidence showing that the proportion is higher at the time of the breathalyzer than at the time of the driving offence. Moreau is best categorized, as Bayda C.J.S. did in R. v. Gibson, supra, at p. 37, as a case involving evidence which generally concluded that all Borkenstein breathalyzers were inherently subject to a margin of error of 10 mg.
XXXIV. The second critical case is R. v. Crosthwait, supra. This Court established that there is nothing in s. 258(1) (c) of the Criminal Code establishing a presumption of accuracy. In this case, an accused was being tried for "over 80", and in defence he argued that the results of the breathalyzer were not reliable because the technician did not confirm that there was less than a one degree difference between the air temperature and the temperature of the solution, as the manufacturer's instruction manual said must be done before an accurate result could be obtained. Pigeon J., for a unanimous Court, pointed out the distinction between the presumption of identity, contained in s. 258(1)(c), and the presumption of accuracy in s. 258(1) (g) and s. 25 of the Interpretation Act . After quoting these sections, Pigeon J. said (at p. 1099) that "[i]t is clear from the wording of the Code that the rebuttable presumption arises from the mere statements in the certificate itself. The presumption may no doubt be rebutted by evidence that the instrument used was not functioning properly but the certificate cannot be rejected on that account".
XXXV. In that case, the accused was not attacking the presumption of identity, that is, he was not claiming that his blood alcohol level as recorded on the breathalyzer was not the same as his blood alcohol level at the time he was driving. Rather, he argued that the blood alcohol level recorded by the breathalyzer did not accurately reflect his actual blood alcohol level, because the technician did not compare the temperatures of the air and solution before proceeding. In other words, he was attacking the presumption of accuracy. Therefore, the evidence he led to try to rebut this presumption was not "evidence to the contrary" under s. 258(1)(c), but was "evidence to the contrary" under s. 25 of the Interpretation Act . Pigeon J. made this clear when he said (at p. 1100):
...while the certificate is evidence by itself, the facts of which it is evidence are "deemed to be established only in the absence of any evidence to the contrary". Thus, any evidence tending to invalidate the result of the tests may be adduced on behalf of the accused in order to dispute the charge against him. . . . Therefore, in my view, the situation here is that the certificate was evidence of the results of the analyses by virtue of the express provisions of the Criminal Code , however, the further question remained: Was there any evidence to the contrary sufficient at least to raise a reasonable doubt? [Emphasis added.]
XXXVI. It is important to note that the passage quoted by Pigeon J. here was from what is now s. 25 of the Interpretation Act , and not from (then) s. 237(1)(c) of the Code. It is clear that the question before Pigeon J. in Crosthwait, supra, was what evidence was necessary in order to rebut the presumption of accuracy, not the presumption of identity.
XXXVII. Pigeon J. then went on to hold that the evidence in the case before him was not "evidence to the contrary" within the meaning of s. 25 of the Interpretation Act , and so the presumption of accuracy was not rebutted. He concluded (at p. 1102) that:
In my view in order to conclude that there was no evidence before the Magistrate to rebut the certificate, it is enough to note that the only evidence was merely of a possibility of a temperature difference without any indication that this could have affected the results to a significant extent. [Emphasis added.]
XXXVIII. However, Pigeon J. also said (at p. 1101):
I am therefore of the opinion that the evidence of Dr. Newlands does not constitute evidence to the contrary under s. 237(1) (c) of the Criminal Code .
XXXIX. This last sentence must surely be considered something of a "slip of the pen", since the presumption with which Pigeon J. was concerned was not contained in s. 237(1)(c) of the Code, but was instead contained in s. 237(1)(f) (now s. 258(1)(g)) and s. 25 of the Interpretation Act . This is confirmed by his earlier analysis of these sections, and the fact that he quoted the Interpretation Act in the passage reproduced above when setting out the question to be answered.
XL. Consequently, the case was not at all concerned with establishing that the blood alcohol level recorded by the breathalyzer was different from the blood alcohol level at the time of driving. Rather, the case was concerned with how to prove that the blood alcohol level recorded by the breathalyzer was not an accurate recording of the blood alcohol level at the time of the test. Section 258(1)(c) does not deal with this question. It is dealt with by s. 258(1) (g) and s. 25 of the Interpretation Act .
XLI. I agree with Arbour J.A. that the decisions of this Court in R. v. Moreau and R. v. Crosthwait are distinguishable from the matter at hand as they address the presumption of accuracy, rather than the presumption of identity. The following passage from the dissenting reasons of Arbour J.A. (at p. 237) is instructive:
In those cases [Moreau, supra, and Crosthwait, supra], it was suggested by the defence that the blood alcohol level of the accused at the time of the offence was not what the breathalyzer recorded because those results were inaccurate. It is in that context that the Supreme Court held that the presumption was displaced only by evidence capable of raising a doubt that the results were inaccurate to the point that the blood level of the accused at the relevant time would have been, on that evidence, below the prohibited level.
XLII. Despite the fact that Crosthwait, supra, deals entirely with the presumption of accuracy, some lower courts have mistakenly used it to analyze the presumption of identity, without recognizing the distinct nature of these two presumptions as established by this Court. For example see R. v. Pryor (1994), 93 C.C.C. (3d) 108, R. v. Andrews (1983), 22 M.V.R. 213 (N.S.S.C.A.D.), and R. v. Hughes (1982), 70 C.C.C. (2d) 42 (Alta. C.A.), where the courts, with respect, confused the two presumptions and improperly relied on R. v. Moreau and R. v. Crosthwait to support their interpretation of evidence to the contrary in s. 258(1)(c).
XLIII. The majority of the Court of Appeal in the instant appeal similarly cite cases which discuss "evidence to the contrary" in s. 25 of the Interpretation Act for rebutting the presumption of accuracy. They, with respect, mistakenly apply these authorities to the presumption of identity, without recognizing either the distinction between the two types of presumptions or the reason why different evidence will be required to rebut each one. The short answer why evidence used for rebutting the presumption of accuracy will not rebut the presumption of identity is that they are two different presumptions, and therefore different evidence will be required for each. I now wish to discuss this point more fully.
(iv) Evidence to the Contrary
XLIV. The central question in this appeal is whether "evidence to the contrary" in s. 258(1)(c) means (a) evidence which shows that the accused's blood alcohol level at the time of the offence (driving) and the time of the testing has changed, or (b) evidence which shows that the accused's blood alcohol level at the time of driving was below .08. Like Arbour J.A., I am of the view that the correct answer is the former for several reasons.
XLV. In the first place, the plain wording of the section supports the conclusion that "evidence to the contrary" means simply that the blood alcohol level at the time of the test was different from the time of the offence. It does not support the conclusion that the evidence must show that the accused's blood alcohol level was below .08. I reproduce the section here with only the relevant portions:
(c) where samples of the breath of the accused have been taken . . . 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 . . . the lowest of the concentrations determined by the analyses;
XLVI. To paraphrase, the section states that the blood alcohol level at the time the accused was driving will be presumed to be the same as the blood alcohol level at the time of the breathalyzer test, unless the accused can lead evidence showing that they were not the same. 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. To rebut the presumption all that must be done is for the accused to show that his or her blood alcohol levels at the two points in time were different and, hence, to show that the temporal presumption should not apply. On this basis, I fail to see how the majority's position can be supported on the plain wording of the section.
XLVII. Moreover, the majority's concerns about the Crown's ability to prove the offence if this interpretation is given to the section are misplaced. One point raised by the majority is that the section should not require the Crown to prove an immaterial fact. The majority says that it does not matter exactly what the accused's blood alcohol level was, just that it was over .08. Therefore, the Crown should not be required to prove by how much it was over .08, just that it was, in fact, over this threshold.
XLVIII. The problem with this line of reasoning is that the majority is confusing the presumptions. Their point is a valid one with respect to the presumption of accuracy. When an accused seeks to rebut the presumption of accuracy, as contained in s. 258(1) (g) and s. 25 of the Interpretation Act , it does not matter that they are able to prove that their actual blood alcohol level should have been .150 instead of the .200 as recorded on the breathalyzer. This is immaterial as far as the commission of the offence is concerned. This is why it is well established that, in order to rebut this presumption, the accused must adduce or point to evidence which tends to show that his or her blood alcohol level was actually under .08.
XLIX. However, the same logic does not apply to the presumption of identity, and cases dealing with the presumption of accuracy cannot be used in support of this point for the presumption of identity, as the majority of the Court of Appeal attempts to do. The presumption of accuracy establishes the blood alcohol level necessary for the offence. The presumption of identity in effect puts the accused in the car with that blood alcohol level at a prior point in time. Hence, the presumption of identity is a temporal presumption designed to simplify the evidentiary necessity of bridging the time gap between the time of the breathalyzer and the time of the offence. The presumption is simply a "short-cut" for the Crown, and if the accused is able to show that the short-cut should not apply in this case, and that his or her blood alcohol level was different at the time of driving from that at the time of the test, then it would be unreasonable to apply the presumption, and on the wording of the section, the presumption would be rebutted.
L. Moreover, it may not matter a great deal if the presumption is rebutted. The majority's concerns about an accused rebutting the presumption of identity by simply showing that his or her blood alcohol level at the time he or she was driving was different, in that it was higher, than at the time of the test are unfounded. If an accused proves that his or her blood alcohol level at the time of driving was actually higher than at the time of the test, then the presumption of identity would be rebutted because the evidence is that the blood alcohol level was different. The accused, however, could still be convicted because even without the presumption of identity, the elements of the offence could be made out. The same holds true where the accused leads evidence to the effect that his or her blood alcohol level at the time of driving was lower than at the time of the test, but still over .08.
LI. Therefore, the majority of the Ontario Court of Appeal need not be so concerned about the presumption of identity being rebutted here because if it is rebutted, the elements of the offence can be proved in other ways. It may be possible to bridge the time gap between the test and the driving by the use of expert evidence on absorption rates of alcohol to work "backwards" in order to establish what the accused's blood alcohol level would have been at the time of driving. Thus, for example, if an accused blew .250 on the breathalyzer, but had consumed 100 ml of vodka one hour before the test, it would be open for an expert in this area to work backwards to give an opinion on what the accused's blood alcohol level would have been at the time of driving. Such an opinion would be given in terms of a range, and if the expert said that the accused would have been between .170 and .200, for instance, then a conviction would in all likelihood follow because it must be remembered that the mere fact that the presumption of identity is rebutted does not render the certificate of analysis inadmissible. This is still admissible evidence under s. 258(1)(g) for the facts contained therein and it, along with the expert's testimony and any other relevant evidence, may be easily capable of supporting a conviction.
LII. The British Columbia Court of Appeal recognized this fact in R. v. Kizan (1981), 58 C.C.C. (2d) 444, where they reached a conclusion essentially the same as Arbour J.A.'s in the present case. This was another case in which the accused had a swallow of vodka between the time of driving and the time of the test. The question is whether this constituted "evidence to the contrary" within the meaning of s. 258(1)(c). McFarlane J.A., for a unanimous court, said (at p. 446):
As I put to counsel, and I say it again, if it be accepted that the respondent swallowed a good drink of vodka very shortly after the time of the alleged offence, if (and I repeat if) the taking of that drink could have any effect whatever on the proportion of alcohol to blood, it must surely be to increase the proportion of alcohol in the blood after the time of the alleged offence, and before the test.
Accordingly, on the circumstances of this particular case the evidence of the taking of that drink was, in my opinion, clearly evidence to the contrary, within the meaning of the subsection.
Now, whether I am right in my last assertion or not, it is evidence which might tend to show that the proportion of alcohol to blood at the time of the alleged offence was not that shown by the certificate. If that be so, it might be either more or less, and the question then would be for the trier of fact to decide whether the evidence did or did not, on the whole, satisfy him (a) that the Crown had proved the offence beyond a reasonable doubt or (b) that upon the whole of the evidence, including the certificates, the Crown had failed to prove the commission of the offence to that degree.
LIII. The British Columbia Court of Appeal correctly noted, as did Arbour J.A., that the mere fact that the presumption of identity is rebutted does not mean that the certificate of analysis is inadmissible. It is still open to the trial judge to convict if, on the basis of all the evidence before him or her, the trial judge is satisfied beyond a reasonable doubt that the accused was over .08 at the time of driving.
LIV. Moreover, even if a conviction on "over 80" is not possible, for whatever reason, a conviction on impaired driving may well be possible on the strength of the arresting officer's testimony. In the present case, it so happens that the accused was not charged with impaired driving, even though such a charge is routinely laid. In fact, the trial judge in this case inquired of Crown counsel why an impaired charge was not laid, and said that such a charge may well have been sustainable.
LV. I should emphasize at this point that it is important to recall the essential difference between a presumption and evidence. Section 258(1)(c) establishes a presumption that the blood alcohol level at the time of driving was the same as at the time of testing, but it does not provide evidence of this fact. It is simply a short-cut for the Crown. If the accused is able to rebut the presumption by showing that the blood alcohol level at the two times was different, then the Crown will have to call evidence to prove its case. The presumption simply establishes that the blood alcohol level at the two times was the same. The evidence called would go to establishing what the accused's blood alcohol level at the time of driving actually was.
LVI. There is another aspect of the approach of the majority of the Court of Appeal in this case that merits comment. Essentially, the adoption of the line of reasoning advanced by the majority would place the onus on the accused to establish his or her own innocence. Specifically, if an accused were required to rebut the s. 258(1)(c) presumption in the manner put forward by the majority, the accused would necessarily have to prove that his or her blood alcohol content was less than .08. If this position is accepted, and the materiality of the evidence of the accused depends upon reference to the legal limit, a grey area exists between the breathalyzer result and the legal limit, and the burden of clarifying this will be placed on the accused when, in fact, the burden should rest with the Crown to prove its case.
LVII. If the accused chooses not to call evidence, as is his or her right, and the Crown does not present additional evidence, the burden is in effect switched to the accused to establish that his or her blood alcohol level was below .08 at the time of the offence, despite the fact that the Crown has not proved its case. If the Crown cannot establish beyond a reasonable doubt that the accused's blood alcohol level exceeded .08 this should not be sufficient to ground a conviction. If the Crown in this appeal is correct, the accused must raise a doubt as to his guilt despite the fact that the Crown may have introduced no evidence. Put another way, an accused may be able to meet the test as elaborated by Arbour J.A., but he may still not be able to pass the test proposed by the Crown without basically bearing the burden of proving his innocence. This position arguably raises concerns under the Canadian Charter of Rights and Freedoms and, accordingly, it should not be accepted, especially when there is another interpretation that does not raise such concerns.
LVIII. Finally, if the Crown's position on the meaning of evidence to the contrary is correct, this view raises some problems when one considers the operation of s. 253 (a) of the Criminal Code . Section 253 establishes the offence of operating a vehicle while impaired by providing the following:
253. Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,
(a) while the person's ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or
(b) having consumed alcohol in such a quantity that the concentration in the person's blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.
Section 258 refers to s. 253 when it provides:
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), [Emphasis added.]
This language indicates that the presumptions in s. 258 operate with respect to both paras. (a) and (b) of s. 253. Therefore, if the majority opinion of the Court of Appeal were accepted, evidence to the contrary under s. 258 would only be evidence tending to show that the accused's blood alcohol level was below .08. The question then arises of how this approach would operate with respect to a charge under s. 253(a) dealing with impaired driving. This is further argument to conclude that evidence to the contrary does not relate to evidence showing a reading below the legal limit, but only to the temporal presumption as previously discussed.
LIX. There remains one difficulty with the above analysis or at least with the inherent nature of the presumption of identity which presents something of a conundrum. If any evidence of difference between the accused's blood alcohol level at the time of the testing and at the time of the driving could be considered "evidence to the contrary" within the meaning of s. 258(1)(c) so as to rebut the presumption, then the presumption could be rebutted in every case. The simple reason for this is that an intoxicated person's blood alcohol level is constantly changing as a result of absorption and elimination of alcohol into and out of the blood. A person charged with "over 80" could simply show that his blood alcohol level changed between driving and being stopped because some of the alcohol had been metabolized in the interim, and suddenly the presumption in s. 258(1)(c) would be gone. In such cases, a conviction would not be difficult to obtain, because in most cases the blood alcohol level will have gone down after driving, or, if it was going up as a result of absorption, in most cases it would not have risen rapidly if nothing else was consumed. But, with the presumption rebutted, the Crown would, in every case, have to call expert witnesses to establish these facts and provide a range of what the accused's blood alcohol level would have been. If this normal process of absorption and elimination were considered to be "evidence to the contrary", then the presumption would be useless, since it could always be rebutted.
LX. Arbour J.A. dealt with this by saying, at pp. 238-39, that:
Scientific evidence tending to show that in all cases the blood alcohol content two hours before the test is not likely to be the same as the level recorded by the machine would not constitute "evidence to the contrary" within the meaning of the section. This is because it would merely be tendered to show that the presumption is a fiction, that it is ill-conceived and that it should therefore not be applied. In the words of Beetz J. in Moreau, supra, at p. 271 S.C.R., p. 533 C.C.C., such evidence would be aimed not at "rebutting the presumption ... but at denying its very existence".
LXI. 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, 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.
V. Conclusion
LXII. In conclusion, I would not expect that many people would likely drink an alcoholic beverage as the accused did in this case. Indeed, such individuals may be risking charges for obstruction of justice, but it is not necessary for me to express any opinion on this matter.
LXIII. In the result, I would agree with Arbour J.A. in dissent in the Court of Appeal, and with the trial judge and the summary conviction appeal judge, and hold that the evidence that the accused drank the two small bottles of vodka is "evidence to the contrary" within the meaning of s. 258(1)(c). Therefore, the Crown cannot rely on the presumption that her blood alcohol level at the time of the testing was the same as her blood alcohol level at the time of the offence. Since there was no other evidence establishing her blood alcohol level at the time of the offence, she must be acquitted. Accordingly, I would allow the appeal, set aside the judgment of the Ontario Court of Appeal, and restore the acquittal.
//L'Heureux-Dubé J.//
The reasons of La Forest, L'Heureux-Dubé, Gonthier and McLachlin JJ. were delivered by
LXIV. L'Heureux-Dubé J. (dissenting) -- Can a person who voluntarily consumes alcohol (or claims to have consumed alcohol) after driving yet before providing a breathalyzer sample to police rely on evidence of this fact, per se, as "evidence to the contrary" to rebut the presumption in s. 258(1) (c) of the Criminal Code , R.S.C., 1985, c. C-46 ? I must respectfully disagree with my colleague's approach to this problem, as well as with his conclusion. I believe that there exists a third possible interpretation of "evidence to the contrary" in s. 258(1)(c) which it is open for this Court to accept: that "evidence to the contrary" of the presumption in s. 258(1)(c) is evidence which tends to show that there is a legally material difference between the accused's blood alcohol level at the time of testing and at the time of the offence.
LXV. In my opinion, the distinction between the "presumption of identity" and the "presumption of accuracy" is an exercise in hairsplitting which runs contrary to the essential purpose of this provision of the Criminal Code , to the past jurisprudence of this Court, and to important policy considerations. If evidence of the fact of post-driving drinking is, indeed, all that is needed to prevent the Crown from relying on the presumption in s. 258(1)(c), it will either oblige the Crown to rely in all such cases on less precise evidence of impairment or, alternatively, increase considerably the time and expense of proceeding on an "over 80" charge by making it necessary for the Crown to adduce expert toxicological evidence as part of its case against the accused. With respect, I believe that such a conclusion cannot possibly be consistent with the spirit of the law, given the clear mischief that s. 258 of the Code is intended to address.
I. Relevant statutory provisions
Criminal Code , R.S.C., 1985, c. C-46
253. Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,
(a) while the person's ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or
(b) having consumed alcohol in such a quantity that the concentration in the person's blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.
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; [Emphasis added.]
II. Facts and Judgments
LXVI. The facts of this case are compellingly straightforward. The appellant, Ms. St. Pierre, was stopped at approximately 1 a.m. by an officer who observed her driving erratically. The officer ascertained that she was intoxicated and asked that she provide a roadside breath sample. After three unsuccessful attempts, she provided a sample and registered a fail on the ALERT test. The officer issued a breathalyzer demand and took her to the police station. As the breathalyzer operator was occupied with another driver, the appellant had to wait approximately one hour for her testing session. She used the washroom three times prior to taking the test. Both breathalyzer readings, taken 20 minutes apart, yielded a result of 180 mg of alcohol per 100 ml of blood. Shortly after taking the second of the breathalyzer tests, as she was being fingerprinted, the appellant showed two empty 50 ml vodka bottles to the police officer and said that she had consumed them while in the washroom.
LXVII. At trial, the Crown sought to prove its case that the appellant was "over 80" by relying on the breathalyzer results and the evidence of the police officer. The evidence of the two 50 ml bottles was introduced at trial during the examination in chief of the officer. The officer testified that the bottles contained no residue, and did not smell of vodka. The Crown did not call an expert to bolster its case, arguing that if the accused wished to rely on the fact of post-driving drinking as "evidence to the contrary" of the presumption in s. 258(1)(c), she had to adduce some evidence that would tend to show that, were it not for the post-driving drinking, her blood alcohol level could have been below the prescribed legal limit. The accused did not testify. O'Reilly J. granted defence counsel's motion for a directed verdict following the close of the Crown's case and the appellant was acquitted. On the Crown's summary conviction appeal, the trial judge's verdict was upheld: (1991), 30 M.V.R. (2d) 13.
LXVIII. On a further appeal by the Crown to the Ontario Court of Appeal, (1992), 10 O.R. (3d) 215, Galligan J.A., writing for the majority, stated that the decision of this Court in R. v. Crosthwait, [1980] 1 S.C.R. 1089, was determinative of this issue in that "evidence to the contrary" must tend to show that the accused's blood alcohol concentration was within permissible limits at the time in question. Arbour J.A., in dissent, held that evidence demonstrating any difference between the accused's blood alcohol concentration at the time of the offence and the breathalyzer reading at the time of the sample was sufficient to constitute "evidence to the contrary" of the presumption in s. 258(1)(c). In her view, it was not necessary for the appellant to adduce any evidence suggesting that she could have been below the legal limit were it not for the alcohol she had allegedly consumed after driving. As such, even evidence demonstrating a difference of "no particular magnitude" would suffice to preclude the Crown from relying on that presumption.
III. Analysis
LXIX. My colleague advances several arguments in support of the conclusion that any credible evidence of post-driving drinking will rebut the presumption in s. 258(1)(c). He first adopts the distinction drawn by Arbour J.A. between the "presumption of accuracy" and the "presumption of identity". He next argues that this Court's previous decisions in R. v. Moreau, [1979] 1 S.C.R. 261, and R. v. Crosthwait, supra, are distinguishable from the case at bar. He then urges a "plain meaning" interpretation of s. 258(1)(c). He finishes by noting concerns that any interpretation other than his might fall afoul of the presumption of innocence, or operate unjustly where the accused has been charged with impaired driving under s. 253(a) rather than with being "over 80" contrary to s. 253(b). I shall address each of these arguments in turn, although not necessarily in the same order, and demonstrate why I believe the correct interpretation of s. 258(1)(c) to be that which I outline above.
1. Prior Jurisprudence: R. v. Moreau and R. v. Crosthwait
LXX. The phrase "evidence to the contrary" in s. 258(1)(c) was already twice the focus of this Court's attention. In my opinion, R. v. Moreau and R. v. Crosthwait squarely apply.
LXXI. In Moreau, an accused failed a breathalyzer test with a reading of 90 mg of alcohol per 100 ml of blood. He was, in other words, just 10 mg over the legal limit. He adduced expert evidence to the effect that all Borkenstein Breathalyzers (the machine which had recorded his result) were inaccurate within 10 mg of alcohol per 100 ml of blood, and argued that this evidence constituted "evidence to the contrary" of the presumption set out in what is now s. 258(1)(c). The Court rejected that argument on the basis that such evidence was aimed not at rebutting the presumption but at defeating the scheme established by Parliament. What is more significant for our purposes, however, is the majority's explanation of the meaning of the phrase "evidence to the contrary". Beetz J., at p. 271, defined that phrase by citing with approval the following passage from the judgment of McFarlane J.A. in R. v. Davis (1973), 14 C.C.C. (2d) 513 (B.C.C.A.), at p. 516:
While not expressed too clearly, I think the intention of Parliament becomes manifest when it is remembered that the fact to be proved is the proportion of alcohol to blood at the time of the offence. The result of the chemical analysis is one method of proving that fact: and the certificates are evidence, inter alia, of that result. It follows, in my opinion, that the concluding part of the subsection means that the result of the chemical analysis is proof of the proportion of alcohol to blood at the time of the offence in the absence of evidence that the proportion at that time did not exceed 80 to 100. Any evidence, therefore, tending to show that at the time of the offence the proportion was within the permitted limits is "evidence to the contrary" within the meaning of the subsection. [Emphasis added by Beetz J.]
Beetz J. then made the following observation, at p. 271:
In order to comply with the wording of the Code, "evidence to the contrary" has to be evidence which tends to establish that the proportion of alcohol in the blood of the accused at the time when the offence was alleged to have been committed was not the same as that indicated by the result of the chemical analysis.
The apparent inconsistency between these two passages has spawned a lively debate as to the true meaning of "evidence to the contrary" in s. 258(1)(c) of the Code. The second passage is relied upon by the appellant in support of her argument that "evidence to the contrary" need not be capable of showing that the accused was actually under the legal limit at the time of the offence.
LXXII. Reading these two passages in the factual and legal context in which they arose, however, demonstrates in my opinion that Beetz J.'s remarks do not support the appellant's argument. It must be recalled that the accused was only 10 mg over the prescribed legal limit. As such, the expert evidence of a 10 mg margin of error in breathalyzers could be seen as "tending to show that at the time of the offence the proportion was within the permitted limits" (p. 271). Put another way, a trier of fact faced with this evidence could have entertained a reasonable doubt that the accused's blood alcohol level at the time of the offence was within legal limits. Given that the accused's evidence appeared to satisfy this initial threshold, Beetz J. therefore had to make it clear that "evidence to the contrary" could not be general in nature, but must also relate to the blood alcohol level of the particular accused. He therefore elaborated at p. 271 on his previous definition of what constitutes "evidence to the contrary" by stating that such evidence also must be
...evidence which tends to establish that the proportion of alcohol in the blood of the accused at the time when the offence was alleged to have been committed was not the same as that indicated by the result of the chemical analysis. [Emphasis added.]
He went on to note that the evidence adduced did not relate to the accused, and therefore did not constitute "evidence to the contrary":
There is no such evidence in the case at bar. Apart from the certificates, there is no evidence of any kind directed at showing what was the proportion of alcohol in the blood of the accused at the time when the offence was alleged to have been committed. [Emphasis added.]
In other words, Beetz J. concluded that general challenges to the breathalyzer scheme did not tend to show that this particular accused's blood alcohol level was any different at the time of the alleged offence, and that such evidence could not, as a matter of law, constitute "evidence to the contrary" because it did not relate to the particular accused. There is no ambiguity. Moreau set down a clear, two-part standard. The confusion that followed stemmed from the fact that many did not read Beetz J.'s comments in their proper context -- i.e. in light of the fact that the expert evidence in that case pointed to a discrepancy which could otherwise have brought the accused's blood alcohol level down to within the legal limit.
LXXIII. If any doubts as to the meaning of the phrase "evidence to the contrary" in s. 258(1)(c) remained after Moreau, however, they were resolved once and for all in Crosthwait, decided some two years later. Crosthwait raised the question of whether expert evidence that the particular breathalyzer in question was not operated properly -- and therefore may have been inaccurate -- constituted "evidence to the contrary" of the presumption in s. 258(1)(c). Pigeon J., for the Court, rejected that argument in the following terms (at p. 1101):
Mere possibility of some inaccuracy will not assist the accused. What is necessary to furnish evidence to the contrary is some evidence which would tend to show an inaccuracy in the breathalyzer or in the manner of its operation on the occasion in question of such a degree and nature that it could affect the result of the analysis to the extent that it would leave a doubt as to the blood alcohol content of the accused person being over the allowable maximum. [Emphasis added.]
It appears that Pigeon J. essentially combined the two thresholds proposed by Beetz J. in Moreau into one: the alleged discrepancy must tend to show that the accused's blood alcohol level could have been below the legal limit at the time of the offence, and the evidence must relate to the particular accused's blood alcohol level, rather than to the scheme in general.
LXXIV. The majority of the Court of Appeal in the present case concluded, at p. 223, that this Court's judgments in Moreau and Crosthwait were dispositive of the appeal:
I think it must be taken as having been settled by the Supreme Court of Canada that, in order for evidence to amount legally to "evidence to the contrary" as that expression is used in s. 258(1)(c), the evidence must tend to show that at the time of the alleged offence the accused person's blood alcohol level did not exceed 80 mg of alcohol in 100 ml of blood.
On the other hand, Arbour J.A., in dissent, sought to distinguish these two cases from situations such as the present one involving post-driving drinking. Arbour J.A. identified a distinction between what she refers to as the "presumption of accuracy" and the "presumption of identity". It is to this question that I now turn.
2. The "Presumption of Accuracy" and the "Presumption of Identity"
LXXV. According to Arbour J.A., the "presumption of accuracy" refers to the presumption that the breathalyzer device correctly reflects the accused's actual blood alcohol level at the time of the test. The "presumption of identity", on the other hand, refers to the presumption that the accused's blood alcohol level at the time of the test is the same as that at the time of the offence. To the extent that Moreau and Crosthwait stand for the proposition that "evidence to the contrary" is only that which tends to show that the accused's blood alcohol level at the time of driving was below 80 mg per 100 ml of blood, it is argued that these two authorities do not govern a situation where it is not the accuracy of the particular breathalyzer results that is questioned (i.e. the presumption of accuracy) but rather the presumption that these results reflect the blood alcohol level at the time of driving (i.e. the presumption of identity).
LXXVI. It is argued that these two presumptions are not inconsistent because they flow from different provisions in the Code. The "presumption of accuracy" is said to flow from s. 258(1)(g), whereas the "presumption of identity" is said to flow from s. 258(1)(c). With all due respect, I believe this interpretation to be incorrect. In fact, to invoke an argument that my colleague, himself, relies upon in his reasons, I believe that it defies the "plain wording" of the two provisions. Section 258(1)(g) reads:
(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; [Emphasis added.]
LXXVII. Section 258(1)(g), taken together with s. 25(1) of the Interpretation Act , R.S.C., 1985, c. I-21 , is said to create a presumption that the reading registered on the breathalyzer is an accurate determination of the accused's blood alcohol level at the time of the testing. It is therefore concluded that the certificate is evidence proving the accused's actual blood alcohol level. My reading of s. 258(1)(g), however, is different. Section 258(1)(g) only deems "the facts alleged in the certificate" to represent, inter alia, the "results of the analyses so made" (s. 258(1)(g)(ii)) (emphasis added). For lack of a better term, I would refer to this presumption as the "presumption of the continuity of the evidence". This presumption is very different from the "presumption of accuracy", since the latter presumes that the results of the analysis are equal to the accused's actual blood alcohol level at the time of testing. There is no reference in s. 258(1)(g), however, to "actual blood alcohol level". Put another way, s. 258(1)(g) is nothing more than a documentary exception to the hearsay rule (see also Martin's Annual Criminal Code 1995, synopsis of s. 258). "Evidence to the contrary" of s. 258(1)(g) (pursuant to s. 25(1) of the Interpretation Act ) would only be evidence that tends to show that the information in the certificate is not reflective of the actual results indicated by the breathalyzer (i.e. the technician who administered the test reported the machine's result to the accused as being 120 mg, and yet the certificate shows the accused's blood alcohol level as being 220 mg). With respect, the plain wording of s. 258(1)(g) simply does not support my colleague's explanation of its evidentiary effects.
LXXVIII. Moreover, I believe that my interpretation of the evidentiary effect of s. 258(1)(c) is identical to that adopted by Pigeon J. for the Court in Crosthwait. Namely, Pigeon J. refused, at p. 1099, to find as an implicit condition of s. 237(1)(f) (now s. 258(1)(g)) a requirement that the breathalyzer instrument be shown to be working properly:
In the instant case, the certificate filed at the trial fully complies with the conditions stated in para. (f). It was, therefore, by itself, evidence of the results of the analyses. With respect, I cannot agree that there is another implicit condition namely, that the instrument used must be shown to have been functioning properly.... The presumption [that the breathalyzer result is accurate] may no doubt be rebutted by evidence that the instrument used was not functioning properly but the certificate cannot be rejected on that account. [Emphasis added.]
A requirement that the instrument be shown to be in working order is integral to the "presumption of accuracy". If that requirement is not implicit in s. 258(1)(g), then it follows that the "presumption of accuracy" cannot reside there either. Pigeon J. goes on at pp. 1100-1101 to conclude that where an accused is seeking to challenge the accuracy of the breathalyzer on the basis that the breathalyzer device was inaccurate, then this challenge must come within the rubric of "evidence to the contrary" in s. 258(1)(c) (then s. 237(1)(c)). I am therefore in respectful disagreement with my colleague's conclusion as to the significance of Crosthwait to the present appeal.
LXXIX. An examination of s. 258(1)(c), by contrast, reveals it to be the source of both of Arbour J.A.'s presumptions. Section 258(1)(c) reads:
(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; [Emphasis added.]
Section 258(1)(c) presumes breathalyzer results taken at a later point in time to equal actual blood alcohol levels at the time of the offence. "Evidence to the contrary" of the presumption is evidence which will tend to negate either (1) the presumption that the breathalyzer result is an acceptably accurate indicator of the accused's blood alcohol level at the time of the test; or (2) the presumption that the accused's blood alcohol level at the time of the test is acceptably representative of his blood alcohol level at the time of the offence. The failure of either of these links breaks the logical chain and removes from the Crown the comfort and convenience of relying on the presumption. Both of these logical links are contained within s. 258(1)(c).
LXXX. I therefore conclude, on the basis of my examination of both the plain wording of s. 258(1)(c) and (g) and this Court's ruling in Crosthwait, that both the "presumption of accuracy" and the "presumption of identity" actually flow from the same provision: s. 258(1)(c). Given that both presumptions actually relate to the same phrase in the same provision in the Code, I am most unconvinced that it is still tenable to conclude that "evidence to the contrary" can give rise to two completely different legal standards of proof in relation to the same charge.
3. The Plain Language of s. 258(1)(c)
LXXXI. The appellant argues that s. 258(1)(c) makes no mention of a requirement that the accused must show that he was not over .08 for the presumption not to apply, and that this Court should reject Galligan J.A.'s interpretation of "evidence to the contrary" in s. 258(1)(c) on the basis that it is not supported by the plain wording of that provision. It is further submitted that the plain meaning of s. 258(1)(c) requires only that an accused adduce evidence that there is a difference, of no particular magnitude, between the accused's blood alcohol level at the time of testing and at the time of the offence. At the same time, the authority of this Court's decisions in Moreau and Crosthwait is accepted for the proposition that challenges to the "presumption of accuracy" will only be "evidence to the contrary" if they are capable of demonstrating that the accused's blood level could have been below the legal limit.
LXXXII. I am unable to reconcile such inconsistency between the "presumption of accuracy" and the "presumption of identity", given that they both flow from the same phrase in the same provision. How can one conclude that the plain meaning of s. 258(1)(c) must prevail in the context of the "presumption of identity" and yet that it need not prevail with respect to the "presumption of accuracy"? On the "plain meaning" of s. 258(1)(c), evidence indicating that the particular breathalyzer test was inaccurate (i.e. rebutting the "presumption of accuracy") is just as "contrary" to the presumption set out in s. 258(1)(c) as evidence "of no particular magnitude" rebutting the "presumption of identity". On a consistent reading, evidence of either event should disentitle the Crown from relying on that presumption. Yet this Court in Crosthwait effectively rejected one possible interpretation of s. 258(1)(c) -- the "plain meaning" approach advocated by the appellant -- and adopted an interpretation that was more consistent with the spirit of the law, having regard to the mischief which the legislation was intended to address, as well as with the spirit and purpose of the presumption.
LXXXIII. I believe that the distinction between the "presumption of identity" and the "presumption of accuracy" is artificial and unnecessary, given that both spring from the identical phrase in the identical provision in the Code. This Court should either explicitly overrule Moreau and Crosthwait, and apply the same "plain language" standard across the board, or recognize that they are still good law and apply them to the case at hand. To accept one standard for the former presumption and another, higher standard for the latter presumption is needlessly confusing. I believe, moreover, that effect can be given to an equally viable "plain meaning" interpretation of s. 258(1)(c) that uses a single legal standard for all circumstances, and that is completely consistent with both Moreau and Crosthwait. I will elaborate below on why I prefer to define "evidence to the contrary" in s. 258(1)(c) as evidence which tends to show that there is a legally material difference between the accused's blood alcohol level at the time of testing and at the time of the offence. What is legally material will, in turn, depend on the charge in relation to which the Crown seeks to invoke the benefit of the presumption in s. 258(1)(c).
4. Requiring Legal Materiality to Avoid Clear Absurdities
LXXXIV. "Plain meaning" must not be used as an end in itself, particularly where it inevitably leads to absurd results which must be inconsistent with what Parliament would have intended. The thoughts of Justice Shamgar, President of the Supreme Court of Israel (as reproduced in Selected Judgments of the Supreme Court of Israel, vol. VIII (1992), at p. 263) strike me as particularly insightful:
... language does not govern the purpose, rather it serves it. The law is an instrument for realizing legal policy, and therefore interpretation needs to aim toward emancipating the wording from its semantic bonds, were these to distance it from the legislative purpose which the words are intended to realize.
"Under a purposive approach, the court defers to the legislature not by decoding its language but by ensuring that its plans are carried out": Driedger on the Construction of Statutes (3rd ed. 1994), at p. 35. The absurdity that flows from a "plain meaning" approach to s. 258(1)(c) is borne out in several possible contexts, all of which strongly suggest that a narrow interpretation of the wording of s. 258(1)(c) distances us from the legislative purpose and intent rather than bringing us closer.
LXXXV. There are four basic means by which an accused may seek to adduce "evidence to the contrary" within the meaning of s. 258(1)(c):
1.Evidence that the breathalyzer machine's results were in error and that a proper result would have been less than 80 mg of alcohol in 100 ml of blood;
2.the "Carter defence" -- i.e. the accused disputes the accuracy of the breathalyzer reading on the basis of what he or she had to drink prior to driving (usually combined with evidence of a forensic toxicologist);
3.the "last drink" defence -- i.e. the accused alleges that his or her pattern of alcohol consumption was such that the blood alcohol concentration was still rising at the time he or she was driving and that it had not yet exceeded 80 mg in 100 ml of blood;
4.the "drinking after driving" defence -- i.e. the accused alleges that he or she consumed alcohol after driving but before the samples were taken.
(See S. Porter, "`Evidence to the Contrary' in Drinking and Driving Cases" (1994), 5 J.M.V.L. 277, at pp. 278-79.) Questions going to the "presumption of identity" arise in the third and fourth instances. If this Court were to accept the appellant's suggested approach to the presumption in s. 258(1)(c), then it would suffice in the fourth instance for an accused to adduce credible evidence of any amount of post-driving drinking, no matter how little, in order to rebut the presumption. As such, if it is credibly asserted that a 200-pound man who has blown twice the legal limit on the breathalyzer test had consumed half a beer after driving but before taking the breathalyzer, a court would have to find that evidence of this consumption of alcohol is "evidence to the contrary" of the presumption contained in s. 258(1)(c), and would have to conclude that the Crown can no longer rely on that presumption. The same result would inure, for that matter, if an individual testified to having taken even a single swallow from a flask in his pocket. The Crown would then have to undertake the time and expense of calling an expert toxicologist to testify to the fact that the effect of the minimal quantity of alcohol consumed after driving would not have been significant enough, given the accused's sex, weight and size, to raise a possibility that the accused's blood alcohol would have been under the legal limit were it not for the additional alcohol. All of this extra time and expense would be precipitated by evidence which an accused need not even show is capable of being legally material to the outcome of the charge.
LXXXVI. Even more absurd, however, is the application of the appellant's suggested approach to the third type of defence mentioned above -- the "last drink" defence. As I understand the implications of that approach, an accused need only adduce evidence of having consumed one or several drinks in rapid succession immediately before embarking in his vehicle in order to rebut the presumption in s. 258(1)(c). No expert evidence would be necessary. This conclusion flows irrevocably from two premises: (1) the fact that judicial notice can be taken of the basic fact that alcohol consumption will, over time, raise blood alcohol level (see Batley v. The Queen (1985), 32 M.V.R. 257 (Sask. C.A.)) and (2) the fact that the "presumption of identity" would be rebutted by any credible evidence (other than evidence about the normal fluctuations involved in metabolizing alcohol) which tends to show that the breathalyzer result may be unrepresentative of the accused's blood alcohol level at the time of the offence.
LXXXVII. In fact, in such cases, it would be to the accused's benefit not to adduce expert evidence, since the Crown would inevitably cross-examine that expert and, should it turn out that in the expert's opinion, the amount of alcohol consumed was incapable of lowering the accused's blood alcohol level below the legal limit, then the Crown could use the expert's evidence to overcome the fact that it cannot rely on the presumption in s. 258(1)(c). If, on the other hand, an accused simply shows up with witnesses willing to support his story of recent alcohol consumption, then the Crown will face three alternatives: (1) it can try to find its own expert toxicologist who is available to testify on the spur of the moment; (2) it can ask for an adjournment in order to obtain this expert at a later date; or (3) it can withdraw the charges. Both the first and second alternatives are costly and time-consuming. The third alternative will be an all-too-easy escape route for Crowns whose dockets are already filled to overflowing with drinking and driving cases.
LXXXVIII. Moreover, as I have already mentioned, preserving the distinction between the "presumption of accuracy" and the "presumption of identity" would result in different standards as to what constituted "evidence to the contrary" stemming from the very same provision of the Code. If an accused were to allege that the particular breathalyzer test was improperly administered and therefore materially inaccurate, then he must provide evidence capable of raising a reasonable doubt that his blood level was below the legal limit at the time of the offence. If, on the other hand, he were to invoke the "last drink defence" or the "drinking after driving defence", then there would be no obligation on him to show that this evidence, if believed, was capable of raising a reasonable doubt that he was under the legal limit at the time of the offence. If he were to raise both defences, then the trial court would have to wrestle with two completely different evidentiary standards in relation to the same provision and the same charge. Such an implication strikes me as highly incongruous. Surely this is an untenable approach, which could not possibly have been intended by Parliament.
LXXXIX. I believe that we need not even look beyond the confines of the present appeal to find absurdities in the interpretation suggested by the appellant. At the close of the Crown's case, the trial judge remarked upon the fact that he was acquitting the appellant even though he was fully aware of the fact that the alcohol which the appellant claimed to have consumed would not have affected her blood alcohol concentration enough to raise a doubt that it was below the legal limit at the time of the offence:
Maybe I am misunderstanding something but the Crown has adduced evidence in this case that empty alcohol bottles were found on Mrs. St. Pierre's person and the Crown sought to introduce a statement made by her that she had consumed alcohol from those bottles after driving, and before giving the tests.
. . .
And in the absence of a forensic toxicologist, who could tell me that 100 millilitres of vodka, rum, or any standard alcohol would not reduce 180 milligrams percent to below 80 milligrams percent? I mean, we both know that as a matter of reality, but I do not know that judicially. [Emphasis added.]
Imposing a burden on the Crown to adduce expert toxicological evidence in circumstances where, practically speaking, there is not even an air of reality to the accused's defence seems clearly at odds with the mischief that Parliament meant to address by way of this presumption. More significantly, it seems clearly at odds with the way in which we generally treat evidentiary onuses on an accused to permit such an onus to be displaced by evidence that is actually legally immaterial to the outcome.
XC. Parliament enacted the presumption in s. 258(1)(c) in clear recognition of the difficulty and expense of requiring expert evidence in virtually every alcohol-related driving offence. In Canada in 1992 alone, police recorded 132,377 impaired driving incidents, of which 105,766 persons were charged with impaired driving related offences: "Impaired Driving -- Canada, 1992" (1994), 14:5 Juristat 1. The enormous burden on our court system posed by these offences must be appreciated. The presumption in s. 258(1)(c) is an important means by which Parliament has sought to address this problem. The presumption strikes a fair balance between collective and individual interests by permitting the efficient and effective enforcement of impaired driving laws in a way that does not in any material sense prejudice the right of individual accused to a full and fair trial. I therefore cannot accept that Parliament could have intended this presumption to be suspended in every case where the accused invokes either the "last drink" defence or the "post-driving drinking" defence, where there is not even an iota of proof to suggest that the discrepancy occasioned by the alcohol consumption would be of any legal relevance to conviction or acquittal on a charge of "over 80", and where the only effect in the vast majority of cases is to increase the time and expense of successful prosecution. To adopt the approach suggested by the appellant would be to disregard that clear intention.
XCI. If ever a case existed for rejecting a tightly tailored "plain meaning" approach in the face of consequences that are both absurd and contrary to the spirit and purpose of the law, it is raised in the present appeal. Of course, it is not for a court to second-guess the wisdom of the legislature since, subject to constitutional constraints, the legislature is entitled to legislate irrationally if it so chooses. Nonetheless, this Court should not adopt an interpretation of s. 258(1)(c) that would lead to absurd consequences when the mischief intended to be addressed is so poignantly clear (see Driedger, supra, at pp. 80-99). The wording of the provision, while not a model of clarity, can be reasonably and purposively interpreted when placed within its proper context. Parliament could not have intended to be more lenient toward individual drivers who, intentionally or not, act in such a way as to defeat the very purpose of the scheme intended by Parliament to regulate their potentially dangerous behaviour.
XCII. This Court has on previous occasions eschewed reliance on the "plain meaning" of provisions in the Criminal Code in instances where adopting that interpretation would frustrate Parliamentary intent in an absurd and obviously unintended manner. It would be breaking no new ground to adopt a similar position in the present case.
XCIII. In R. v. B. (G.), [1990] 2 S.C.R. 3, this Court was called upon to interpret the meaning of former s. 586 of the Code, which imposed a corroboration requirement on unsworn children's evidence. The plain meaning of that section appeared to require that the corroborative evidence must, itself, implicate the accused. Wilson J., speaking for the Court, rejected this interpretation, notwithstanding the fact that it flowed from the plain meaning of the provision. She turned to a purposive analysis of s. 586 and interpreted the provision "liberally" to mean that the only evidence required was evidence that tended to demonstrate the truth of the child's story (at pp. 28-29). In the face of a "plain meaning" reading that seemed to defy both common sense and the purpose and intent of the legislation, this Court adopted an interpretation that was consistent with the mischief Parliament sought to avoid and yet that did not render the accused's trial unfair.
XCIV. In R. v. Penno, [1990] 2 S.C.R. 865, this Court was asked to clarify whether former s. 234(1) of the Code, which made it an offence to assume care or control of a motor vehicle while impaired, could operate in an instance where the accused claimed to be so intoxicated that he recalled nothing of the events. Arguably, the ordinary meaning of "care and control" within its immediate context would dictate the conclusion that an individual cannot have care or control if they are too drunk to have such a capability. McLachlin J. rejected such an approach in the following terms (at pp. 899-900):
Impairment being an essential element of the crime, it is illogical and contradictory to suppose that Parliament intended that its express aim of making such impairment criminal should be defeated by an unexpressed implication of law that the same impairment may provide an effective defence.
...
Failure to recognize the inherent contradiction involved in the proposition that an essential element of an offence may also be a defence leads to absurdity. It leads, for example, to the conclusion that the more impaired a person is, the more likely he or she is to be acquitted of the offence of impaired driving. That a person should be too impaired to be convicted of impaired driving strikes most people as ridiculous. It represents, in short, a contradiction in terms.
I query whether it would not also strike most people as ridiculous that a person who claims to have consumed alcohol in the police station before submitting herself to a breathalyzer test should be able to rely on that evidence, without taking any steps to show its legal materiality, as a defence to a charge of driving "over 80", requiring the Crown to adduce the expert evidence of a forensic toxicologist or to proceed upon the less precise charge of impaired driving.
XCV. Most recently, in R. v. Heywood, [1994] 3 S.C.R. 761, Gonthier J., dissenting, declined to follow the ordinary meaning of the word "loiter", as it was used in s. 179(1) (b) of the Criminal Code . Rather, having regard to the legislative history, the context, and the purpose of the legislation -- which was to protect children against the material risk of recidivism in those convicted of sexual assaults -- he concluded that "loiter" must include some element of malevolent or ulterior purpose. His reading of this term permitted him to find that s. 179(1)(b) did not violate the Canadian Charter of Rights and Freedoms .
XCVI. I would note, as well, that references in s. 258(1)(c) to actual blood alcohol levels, although legally irrelevant for the purposes of conviction on an "over 80" charge, can nonetheless have meaningful sentencing implications with respect to such prosecutions. If there were no legislative presumption that properly administered breathalyzer results were retroactively accurate to the time of the offence, or if s. 258(1)(c) only presumed the breathalyzer result to be sufficiently accurate to determine that the accused was over the legal limit, then it would follow that the Crown could not point to extremely high levels of intoxication as an aggravating factor in sentencing unless it first adduced expert evidence to prove the accuracy of the breathalyzer result as a measure of the accused's alcohol level at the time of the offence. Requiring such expert evidence, however, would be both time-consuming and costly, and would once again frustrate the very mischief that Parliament sought to avoid by way of the presumption in the first place. I think that this is a pertinent consideration, however, which may partly explain why Parliament chose to formulate this presumption in terms of actual blood alcohol levels rather than in terms of whether the accused was presumably over or under the legally prescribed limit. A preferable approach, in my view, would be to acknowledge that although a discrepancy may not be legally material to conviction, it may nonetheless be a legitimate consideration at the sentencing stage.
XCVII. As such, in respect of a charge of "over 80" under s. 253(b) of the Code, I approve the reasoning of Galligan J.A., speaking for the majority of the Ontario Court of Appeal, at p. 230:
The offence created by s. 253(b) is driving with a blood alcohol concentration of more than 80 mg of alcohol in 100 ml of blood. A conviction will result if the concentration is over 80 and an acquittal if it is not. There is no obligation to establish the precise amount above 80 in order to prove the offence. So long as the concentration is over 80, the offence is established and it is legally immaterial, for purposes of conviction by how much the offence exceeds 80. Thus, so long as it is over 80, the exact concentration is legally immaterial. I must then ask, did Parliament intend to provide a presumption to prove the offence or to prove the exact amount by which the driver was over 80? The answer seems to me to be obvious. Parliament would not have intended to provide a mechanism to prove something which is legally immaterial. [Emphasis added.]
He then concludes at p. 231:
It is my opinion that to permit "evidence to the contrary" to be interpreted to include evidence which shows only that the concentrations at the time of driving and testing were not the same would permit the rebuttal of the presumption by the presentation of evidence which really only shows the possibility of some uncertainty about that element of the scheme.
On the other hand, evidence which tends to show that an accused, at the time of the offence, did not have a concentration of alcohol in his or her blood exceeding 80 mg of alcohol in 100 ml of blood ... constitutes evidence to the contrary because it tends to rebut the presumption and does not produce the absurd result produced by the other interpretation. It does not render an important part of the scheme ineffective.
As I have already mentioned, however, I wish to qualify his remarks in one very important respect. It must be recalled that Galligan J.A. was addressing the presumption in s. 258(1)(c) in the context of a proceeding in which the accused was only charged with being "over 80", contrary to s. 253(b). The same can be said of both Moreau and Crosthwait. As such, none of the above judgments addressed the interaction between the presumption in s. 258(1)(c) and the offence of impaired driving under s. 253(a). Although this question does not arise on the facts of the present case and was not raised by either of the parties, it is a concern mentioned by my colleague, and I will therefore address it briefly.
5. Application of s. 258(1)(c) to a Charge of Impaired Driving
XCVIII. My colleague observes that actual blood alcohol levels, while not relevant to an "over 80" charge, may be of considerable importance where the Crown elects to proceed against the accused on an "impaired driving" charge pursuant to s. 253(a) of the Code. Indeed, breathalyzer results are frequently used as an element of proof of actual impairment, and a breathalyzer reading of 180 mg is no doubt greater support for a finding of actual impairment than would be a reading of 100 mg. I therefore agree with Justice Iacobucci that it could operate unfairly to the accused to hold that the presumption in s. 258(1)(c) will not be rebutted unless the accused adduces evidence tending to show that he could be under the legal limit.
XCIX. The same concerns, however, do not flow from my proposed interpretation of "evidence to the contrary" in s. 258(1)(c). Where the Crown seeks to rely on a breathalyzer result for the purposes of supporting an impairment charge under s. 253(a), then any evidence tending to raise a doubt as to impairment is legally material (other than, of course, fluctuations relating to the normal process of metabolizing of alcohol in blood). In such cases, materiality may very well depend upon factors such as the accused's actual blood alcohol level, the degree of discrepancy alleged, and the nature and extent of the other evidence as to impairment. In some cases, the exact breathalyzer reading may be highly relevant to an essential element of the offence and even small differences will be legally material. The same cannot be said in relation to an "over 80" charge.
C. There is no need to give s. 258(1)(c) different meanings depending on whether it applies in conjunction with s. 253(a) or (b). Rather, we need only recognize that a provision with one meaning may have different applications to the two different charges to which it relates. This proposition is hardly controversial or new. I hasten to add that it is certainly less novel than giving a single phrase in a single provision two different interpretations in respect of the same charge, which is the apparent result of the distinction between the presumptions of accuracy and identity.
CI. To summarize, then, I would only emphasize again that the presumption in s. 258(1)(c) must be interpreted in the context of the charge in relation to which it is being invoked. Moreover, as I have already mentioned, although actual blood alcohol levels may be legally immaterial to conviction, they may be relevant in the context of sentencing. As such, evidence which shows that the blood alcohol level of the convicted driver was lower than the test result may be a factor to consider in sentencing. I do not believe it to be either contrary to Charter values or in any way unjust to the accused to require that "evidence to the contrary" be legally material in respect of the offence with which the accused is charged. The onus on the accused is purely evidentiary in nature, and flows from an interpretation of the provision which avoids patent absurdity.
6. Section 258(1)(c) and the Presumption of Innocence
CII. I would also like to address briefly my colleague's concern that the presumption in s. 258(1)(c) not be interpreted so as to require the accused to prove his innocence, or so as to impose a burden upon the accused to raise a reasonable doubt as to his guilt before the Crown has put forward its entire case. If "evidence to the contrary" in s. 258(1)(c) is interpreted in the manner that I suggest, then all that is necessary for an accused to rebut this presumption will be for that individual to point to credible evidence which tends to show that there is a legally material difference between the accused's blood alcohol level at the time of the offence and the result indicated by the breathalyzer reading.
CIII. 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. He needs to show, in other words, that the discrepancy is legally material. The onus on the accused is strictly evidentiary in nature, and arises as a practical consequence of the Crown justifiably relying on the presumption in s. 258(1)(c) until the accused adduces some evidence to show that this reliance is unjustified to a legally material degree.
CIV. In the context of an impaired driving charge, by contrast, it will only be necessary for an accused to point to credible evidence of an overestimation of blood alcohol level that is sufficiently large that it tends to raise a doubt as to impairment. As I said earlier, the magnitude of the discrepancy required to rebut the presumption is a determination to be made in light of the totality of the facts in each case. Once again, however, the important point for our purposes is that the accused need not demonstrate that the discrepancy is large enough to disprove impairment, but need only point to evidence that is capable of raising a doubt as to impairment.
CV. I agree that the reversal of burden created by s. 258(1)(c) may indeed constitute a breach of s. 11( d ) of the Charter , as suggested by my colleague, since this statutory presumption relieves the Crown of its duty to prove independently all of the elements of the offence beyond a reasonable doubt. However, I note without deciding that such an infringement would very likely survive Charter scrutiny under s. 1 as a reasonable and demonstrably justifiable limit on the right, given the overwhelming importance of effective enforcement measures to curb the dangers of drunk driving.
7. Policy Considerations
CVI. Ultimately, this case boils down to a question of whether we impose the burden on the Crown or on the accused to adduce expert toxicological evidence in instances in which a driver voluntarily consumes (or claims to have consumed) alcohol either shortly before or after driving but before supplying a breathalyzer sample. I cannot agree that there is any need for two different evidentiary burdens to flow from the identical provision, in respect to the identical charge. Moreover, it seems anomalous to afford the benefit of the lesser evidentiary burden to drivers who have either wilfully consumed alcohol after being involved in an offence or who have gulped down material quantities of alcohol and then tried to drive home before the alcohol took effect. In most cases, moreover, there is good reason to suspect that post-driving drinking (or just the claim thereof) is an act of mischief intended to thwart police investigators. All such cases, at the very least, involve a significant degree of irresponsibility and a cavalier disregard for the safety of others and the integrity of the judicial system. This Court should not encourage or, at the very least, lend legitimacy, to such behaviour. Surely, if an accused wishes to question the representativeness of the breathalyzer result on the basis that the reading could be overestimating his blood alcohol level at the time of the offence, and the reason for that discrepancy is his own wilful conduct, then it would seem only just and consistent with the mischief that Parliament sought to address by way of this presumption that he assume the burden of adducing some evidence which tends to show that this discrepancy is legally relevant to the outcome of the charge. He is, in effect, the artisan of his own jeopardy, and should not profit from conduct which may very well verge on obstruction of justice.
CVII. On a final note, I cannot help but remark upon a possible practical implication of the interpretation urged by the appellant. Given the possibility that a sophisticated or mischievous accused could either drink, or merely claim to have drunk, alcohol after having been taken to the station for a breathalyzer test, as is the case here, police may well begin to search individuals more systematically for alcohol containers in an effort to thwart such activity. Giving the appellant the benefit of the doubt in the present case notwithstanding the legal irrelevancy of her objection to the outcome of the charge may therefore precipitate a legitimate investigative procedure that is even more invasive of the rights of the individual than the adverse presumption to which the appellant objects in the first place.
IV. Application to the Facts
CVIII. In a charge of driving "over 80", as was the case in the present appeal, "evidence to the contrary" must go to a legally material issue. As such, in this case, it must be evidence capable of raising a reasonable doubt that the accused was under the legal limit at the time of the offence. The appellant did not testify. Nor was evidence adduced to this effect. The Crown was therefore entitled to rely on the presumption in s. 258(1)(c), and consequently proved all of the elements of the offence. Since I can see no other defence which the accused could possibly have advanced, I would agree with Galligan J.A. that there is no need for a new trial, and that a conviction should be substituted for the acquittal.
CIX. Accordingly, I would dismiss the appeal and dispose of the case in the manner proposed by the Court of Appeal.
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