R. v. St. Pierre

R. v. St. Pierre
Collection
Supreme Court Judgments
Date
1995-03-02
Report
[1995] 1 SCR 791
Case number
23518
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Ontario
Subjects
Criminal law
Notes
SCC Case Information: 23518
Decision Content
R. v. St. Pierre, [1995] 1 S.C.R. 791
Gail Roberta St. Pierre Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. St. Pierre
File No.: 23518.
1994: December 2; 1995: March 2.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for ontario
Criminal law ‑‑ Motor vehicles ‑‑ Driving while "over 80" ‑‑ Breathalyzer test ‑‑ Presumption of accuracy -- Presumption of identity ‑‑ Accused claiming to have consumed two miniature bottles of vodka while waiting to take breathalyzer test ‑‑ Whether presumption in s. 258(1) (c) of Criminal Code applies ‑‑ Meaning of "evidence to the contrary" ‑‑ Whether evidence must tend to show that accused's blood alcohol level was within permissible limit at time of alleged offence ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 258(1) (c).
The accused was charged with having the care or control of a motor vehicle while her blood alcohol level was over .08, contrary to s. 253 (b) of the Criminal Code . She was stopped because a police officer saw her driving erratically. After speaking to her, the officer concluded that she had been consuming alcohol. The accused failed a roadside screening test and was taken to the police station for breathalyzer tests. She had to wait about an hour for her testing session. She went to the washroom three times during that period. The accused then provided two breath samples, each of which produced a reading of 180 mg of alcohol in 100 ml of blood. Shortly after the tests, the accused showed the officer two empty 50 ml vodka bottles and told him she was an alcoholic and had consumed the contents of the bottles while in the washroom, to calm herself. The officer testified that the bottles contained no residue, and did not smell of vodka. The Crown relied on the test results to prove that the accused's blood alcohol level at the time of the alleged offence was over .08, relying on the presumption in s. 258(1)(c) of the Code, which applies "in the absence of evidence to the contrary". The trial judge found that the presumption did not apply, since there was evidence that the blood alcohol concentration at the time of driving was different from that revealed by the test, and acquitted the accused. The summary conviction appeal court upheld the acquittal. The Court of Appeal allowed the Crown's appeal and directed that the accused be convicted of the offence.
Held (La Forest, L'Heureux‑Dubé, Gonthier and McLachlin JJ. dissenting): The appeal should be allowed and the acquittal restored.
Per Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ.: The presumption of identity in s. 258(1)(c) of the Code 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. The presumption of accuracy in s. 258(1) (g), on the other hand, together with s. 25 of the Interpretation Act , establishes 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. These two presumptions must be kept separate: they arise from two entirely different provisions, they help the Crown over two entirely different evidentiary hurdles, and consequently the evidence necessary to rebut them is different. This Court's decisions in R. v. Moreau and R. v. Crosthwait are distinguishable from the present case as they address the presumption of accuracy rather than the presumption of identity.
"Evidence to the contrary" in s. 258(1) (c) means evidence which shows that the accused's blood alcohol level at the time of driving was different from his or her blood alcohol level at the time of testing. It need not show that the accused's blood alcohol level at the time of driving was below .08. The plain wording of the section supports this conclusion. The presumption of identity is a temporal presumption designed to simplify the evidentiary necessity of bridging the time gap between the breathalyzer test and the offence. It is simply a shortcut for the Crown, and if the accused is able to show that the shortcut 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. The elements of the offence can be proved in other ways, however. It may be possible to use expert evidence on alcohol absorption rates to work backwards in order to establish what the accused's blood alcohol level would have been at the time of driving. The mere fact that the presumption of identity is rebutted does not render the certificate of analysis inadmissible. It, along with the expert's testimony and any other relevant evidence, may be easily capable of supporting a conviction. Moreover, even if a conviction on "over 80" is not possible, a conviction for impaired driving may well be possible on the strength of the arresting officer's testimony.
Requiring the accused to show that his or her blood alcohol level at the time of driving was below .08 would place the onus on the accused to establish his or her own innocence. Since this position arguably raises concerns under the Canadian Charter of Rights and Freedoms , it should not be accepted, especially when there is another interpretation that does not raise such concerns. Finally, s. 258(1) refers to s. 253 in language that indicates that the presumptions operate with respect to impaired driving under s. 253 (a) as well as the "over 80" offence in s. 253 (b). 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.
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.
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.
Per La Forest, L'Heureux‑Dubé, Gonthier and McLachlin JJ. (dissenting): "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. Section 258(1)(c) is the source of both the presumption of accuracy and the presumption of identity. "Evidence to the contrary" 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.
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, and with the purpose of the legislation. The proposed "plain meaning" approach to s. 258(1)(c) leads to absurd results. In the case of a "drinking after driving" defence, it would suffice for an accused to adduce credible evidence of any amount of post‑driving drinking, no matter how little, in order to rebut the presumption. 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 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. Even more absurd is the application of this approach to the "last drink" defence: an accused would need only to 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). Moreover, 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, and such an incongruous result could surely not have been intended by Parliament.
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. 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. Parliament could not 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.
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. Further, 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.
While the reversal of burden created by s. 258(1)(c) may indeed constitute a breach of s. 11 (d) of the Charter , since this statutory presumption relieves the Crown of its duty to prove independently all the elements of the offence beyond a reasonable doubt, 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. Policy considerations support the interpretation that "evidence to the contrary" must go to a legally material issue. 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.
"Evidence to the contrary" in this case must be evidence capable of raising a reasonable doubt that the accused was under the legal limit at the time of the offence. Since no evidence was adduced to this effect, the Crown was entitled to rely on the presumption in s. 258(1)(c) and consequently proved all the elements of the offence.
Cases Cited
By Iacobucci J.
Distinguished: R. v. Moreau, [1979] 1 S.C.R. 261; R. v. Crosthwait, [1980] 1 S.C.R. 1089; disapproved: R. v. Pryor (1994), 93 C.C.C. (3d) 108; R. v. Andrews (1983), 22 M.V.R. 213; R. v. Hughes (1982), 70 C.C.C. (2d) 42; referred to: R. v. White (1986), 41 M.V.R. 82; R. v. Creed (1987), 7 M.V.R. (2d) 184; R. v. Kays (1987), 3 M.V.R. (2d) 209; R. v. Gallagher (1981), 64 C.C.C. (2d) 533; R. v. Dubois (1990), 62 C.C.C. (3d) 90; Batley v. The Queen (1985), 32 M.V.R. 257; R. v. Gibson (1992), 72 C.C.C. (3d) 28; R. v. Davis (1973), 14 C.C.C. (2d) 513; R. v. Kizan (1981), 58 C.C.C. (2d) 444.
By L'Heureux‑Dubé J. (dissenting)
R. v. Crosthwait, [1980] 1 S.C.R. 1089; R. v. Moreau, [1979] 1 S.C.R. 261; R. v. Davis (1973), 14 C.C.C. (2d) 513; Batley v. The Queen (1985), 32 M.V.R. 257; R. v. B. (G.), [1990] 2 S.C.R. 3; R. v. Penno, [1990] 2 S.C.R. 865; R. v. Heywood, [1994] 3 S.C.R. 761.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 11 (d).
Criminal Code, R.S.C., 1985, c. C‑46 [am. c. 27 (1st Supp.)], ss. 253 [rep. & sub. c. 32 (4th Supp.), s. 59 ], 258(1)(c), (g).
Interpretation Act, R.S.C., 1985, c. I‑21, s. 25(1) .
Authors Cited
Driedger, Elmer A. Driedger on the Construction of Statutes, 3rd ed. By Ruth Sullivan. Toronto: Butterworths, 1994.
Martin. John C. Martin's Annual Criminal Code 1995. Aurora, Ont.: Canada Law Book, 1994.
Porter, Shawn. "`Evidence to the Contrary' in Drinking and Driving Cases" (1994), 5 J.M.V.L. 277.
Selected Judgments of the Supreme Court of Israel, vol. VIII. Tel Aviv: Shmuel Press Ltd., 1992.
Statistics Canada. Canadian Centre for Justice Statistics. "Impaired Driving ‑‑ Canada, 1992" (1994), 14:5 Juristat 1.
APPEAL from a judgment of the Ontario Court of Appeal (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, allowing the Crown's appeal from a judgment of Clarke J. (1991), 30 M.V.R. (2d) 13, upholding Reilly Prov. Ct. J.'s acquittal of the appellant on a charge of having care or control of a motor vehicle with a blood alcohol level of over .08. Appeal allowed, La Forest, L'Heureux‑Dubé, Gonthier and McLachlin JJ. dissenting.
Graham Webb, for the appellant.
David Finley, for the respondent.
//Iacobucci J.//
The judgment of Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ. was delivered by
I. Iacobucci J. -- This appeal raises the issue of the meaning of "evidence to the contrary" found in s. 258(1) (c) of the Criminal Code, R.S.C., 1985, c. C-46 .
I. Factual Background
II. On March 29, 1989, the appellant was charged with having the care or control of a motor vehicle while the concentration of alcohol in her blood exceeded 80 mg of alcohol in 100 ml of blood contrary to s. 253 (b) of the Criminal Code . The appellant was stopped because a police officer saw her driving her motor vehicle in an erratic manner. After speaking to her, the officer concluded that she had been consuming alcohol. The appellant failed an ALERT roadside screening device test and was taken to the police station for two breathalyzer tests.
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 b