R. v. St‑Onge Lamoureux

R. v. St‑Onge Lamoureux
Collection
Supreme Court Judgments
Date
2012-11-02
Neutral citation
2012 SCC 57
Report
[2012] 3 SCR 187
Case number
33970
Judges
McLachlin, Beverley; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
Quebec
Subjects
Constitutional law
Notes
SCC Case Information: 33970
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. St‑Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187
Date: 20121102
Docket: 33970
Between:
Her Majesty The Queen and Attorney General of Quebec
Appellants
and
Anic St-Onge Lamoureux
Respondent
- and -
Attorney General of Canada, Attorney General of Ontario, Attorney General of Manitoba, Attorney General of British Columbia, Attorney General of Alberta, Barreau du Québec, Association québécoise des avocats et avocates de la défense, Criminal Lawyers’ Association of Ontario and Criminal Trial Lawyers’ Association
Interveners
Official English Translation: Reasons of Deschamps J.
Coram: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 101)
Reasons Dissenting in Part:
(paras. 102 to 180)
Deschamps J. (McLachlin C.J. and LeBel, Fish and Abella JJ. concurring)
Cromwell J. (Rothstein J. concurring)
R. v. St‑Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187
Her Majesty The Queen and
Attorney General of Quebec Appellants
v.
Anic St‑Onge Lamoureux Respondent
and
Attorney General of Canada, Attorney General of
Ontario, Attorney General of Manitoba, Attorney
General of British Columbia, Attorney General of Alberta,
Barreau du Québec, Association québécoise des avocats et
avocates de la défense, Criminal Lawyers’ Association
of Ontario and Criminal Trial Lawyers’ Association Interveners
Indexed as: R. v. St‑Onge Lamoureux
2012 SCC 57
File No.: 33970.
2011: October 13; 2012: November 2.
Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein and Cromwell JJ.
on appeal from the court of québec
Constitutional law — Charter of Rights — Presumption of innocence — Statutory amendments affecting evidence that can be adduced to rebut presumption of accuracy and presumptions of identity in context of prosecution for driving with blood alcohol level over legal limit — Exclusion of possibility that “Carter” defence would suffice on its own to cast doubt on breathalyzer test results — Whether new provisions of Criminal Code infringe right to be presumed innocent — If so, whether infringement justified — Criminal Code, R.S.C. 1985, c. C‑46, s. 258(1) (c), (d.01), (d.1) — Tackling Violent Crime Act, S.C. 2008, c. 6 — Canadian Charter of Rights and Freedoms, ss. 1 , 11 (d).
Constitutional law — Charter of Rights — Fundamental justice — Right to make full answer and defence — Statutory amendments affecting evidence that can be adduced to rebut presumption of accuracy and presumptions of identity in context of prosecution for driving with blood alcohol level over legal limit — Exclusion of possibility that “Carter” defence would suffice on its own to cast doubt on breathalyzer test results — Whether new provisions of Criminal Code infringe right to make full answer and defence — If so, whether infringement justified — Criminal Code, R.S.C. 1985, c. C‑46, s. 258(1) (c), (d.01), (d.1) — Tackling Violent Crime Act, S.C. 2008, c. 6 — Canadian Charter of Rights and Freedoms, ss. 1 , 7 .
Constitutional law — Charter of Rights — Self‑incrimination — Statutory amendments affecting evidence that can be adduced to rebut presumption of accuracy and presumptions of identity in context of prosecution for driving with blood alcohol level over legal limit — Exclusion of possibility that “Carter” defence would suffice on its own to cast doubt on breathalyzer test results — Whether new provisions of Criminal Code infringe protection against self‑incrimination — If so, whether infringement justified — Criminal Code, R.S.C. 1985, c. C‑46, s. 258(1) (c), (d.01), (d.1) — Tackling Violent Crime Act, S.C. 2008, c. 6 — Canadian Charter of Rights and Freedoms, ss. 1 , 11 (c).
L was charged with operating a vehicle with a blood alcohol level over the legal limit. At trial, she argued that the new provisions of the Criminal Code with respect to breathalyzer test results are unconstitutional. The trial judge found that the statutory amendments did not bar L from presenting a Carter defence to rebut the presumption of accuracy. In light of the evidence, he concluded that L’s testimony about her alcohol consumption was not sufficiently serious or probative to raise a reasonable doubt. Finding that the qualified technician’s explanations were sufficient and that the presumptions established in s. 258(1) (c) and (d.1) of the Criminal Code applied, he convicted L. The trial judge upheld in part the constitutionality of the new Criminal Code provisions.
Held (Rothstein and Cromwell JJ. dissenting in part): The appeal should be allowed in part. Sections 258(1) (c), 258(1) (d.01) and 258(1) (d.1) of the Criminal Code do not infringe s. 7 and s. 11 (c) of the Canadian Charter of Rights and Freedoms , but do infringe s. 11 (d). Sections 258(1) (d.01) and 258(1) (d.1), and s. 258(1) (c) after severance of the second and third requirements for rebutting the presumptions, are justified under s. 1 of the Charter .
Per McLachlin C.J. and LeBel, Deschamps, Fish and Abella JJ.: A statutory presumption violates the right to be presumed innocent if its effect is that an accused person can be convicted even though the trier of fact has a reasonable doubt. The expert evidence filed in this case reveals that the possibility of an instrument malfunctioning or being used improperly when breath samples are taken is not merely speculative, but is very real. The Alcohol Test Committee of the Canadian Society of Forensic Science has made a series of recommendations concerning the procedures to be followed by the professionals who operate the instruments and verify that they are properly maintained. These recommendations shed light on the circumstances that might explain how an instrument malfunctioned or was used improperly. However, Parliament did not adopt the Committee’s recommendations, and the prosecution referred to no alternative mechanisms that would enable a court to find that the instruments are generally maintained and operated properly or that the rate of failure attributable to improper maintenance or operation is insignificant. The trier of fact could therefore entertain a reasonable doubt about the validity of the test results, since he or she will not have shown why they can be relied on in the case of the accused who is on trial. But a judge who entertains such a doubt will nevertheless remain bound by the presumptions of accuracy and identity of s. 258(1) (c) of the Criminal Code and will be required to convict the accused unless the accused rebuts those presumptions in accordance with the requirements of that provision. In view of the mechanism for applying the statutory presumptions established in s. 258(1) (c), s. 258(1) (c) and (d.01) infringe s. 11 (d) of the Charter .
Whether a statutory presumption can be justified under s. 1 of the Charter depends on several factors, including the importance of the legislative objective, how difficult it would be for the prosecution to prove the substituted fact beyond a reasonable doubt, whether it is possible, and how easy it is, for the accused to rebut the presumption, and, as can be seen from this case, scientific advances. The objective of the amendments — to give breathalyzer test results a weight consistent with their scientific value — is pressing and substantial. Section 258(1) (c) of the Criminal Code contains three separate and cumulative new requirements that the accused must satisfy to rebut the presumptions of accuracy and identity. These requirements must be considered separately for the remainder of the justification analysis.
First, the accused must raise a doubt that the instrument was functioning and was operated properly. This requirement is rationally connected with Parliament’s objective. According to the scientific evidence on which Parliament relied, if the instrument functions properly and all the relevant procedures are followed, the results should be reliable. In addition, the measure violates the right to be presumed innocent as little as reasonably possible. The reliability of breathalyzer tests has been recognized by the scientific and legal communities. Moreover, the new provisions do not make it impossible to disprove the test results, but require that evidence tending to cast doubt on the reliability of the results relate directly to possible deficiencies in the maintenance of the instruments or in the test process. Finally, the effects of this limit on the right to be presumed innocent are proportional to Parliament’s objective. The objective of the first requirement of s. 258(1) (c), as clarified by s. 258(1) (d.01), is to confirm the scientific value and ensure the primacy of breathalyzer test results. This statutory amendment was a response to the serious disconnect that existed in the fact that the Carter defence had a high success rate despite the recognized scientific reliability of the results. Furthermore, the scheme adopted for breathalyzer tests includes certain guarantees that place limits on police action and protect the presumption of innocence.
Second, s. 258(1)(c) requires evidence tending to show that the malfunction or improper operation of the instrument resulted in a reading according to which the blood alcohol level of the accused exceeded .08. This requirement constitutes a serious infringement of the right to be presumed innocent that cannot be justified in a democratic society. The requirement that the accused raise a doubt that his or her blood alcohol level in fact exceeded .08 constitutes an excessive burden in the context of a statutory scheme under which the evidence must relate directly to the functioning or operation of the instrument.
The third requirement of s. 258(1)(c) cannot be justified under s. 1 of the Charter . There is no rational connection between the objective of the new legislative measures and the requirement of adducing evidence to raise a doubt that the blood alcohol level of the accused in fact exceeded .08. This requirement is in addition to the requirement of showing that the instrument malfunctioned or was operated improperly. If the accused has already identified a defect that could cast doubt on the reliability of the results, it is difficult to justify requiring the court to nevertheless accept that the results have probative value if the accused has produced no evidence regarding his or her blood alcohol level.
It was open to Parliament to exclude, in s. 258(1)(d.01), the production of evidence of the alcohol consumption of the accused that tends to show that the instrument was malfunctioning or was operated improperly, and to provide that such evidence is legally insufficient to cast doubt on the reliability of the test results. This exclusion does not infringe the rights protected by s. 7 , nor does it render the rebuttal of the presumptions established in s. 258(1)(c) illusory.
Section 258(1) (d.1) of the Criminal Code establishes a second presumption of identity according to which a blood alcohol level over .08 at the time of the analysis is presumed to be the same as the blood alcohol level of the accused at the time of the alleged offence. Since s. 258(1)(d.1) exempts the prosecution from having to establish the guilt of the accused beyond a reasonable doubt before the accused must respond, it infringes the right to be presumed innocent. To rebut this second presumption of identity, evidence to the contrary adduced by the accused must tend to show two facts: (1) the consumption of alcohol of the accused was consistent with a blood alcohol level that did not exceed .08 at the time when the offence was alleged to have been committed; and (2) the consumption of alcohol of the accused was consistent with the test results. The objective of these requirements is pressing and substantial. A rational connection can easily be established between each of these requirements and the requirement’s legislative objective. They also satisfy the minimal impairment test. Section 258(1) (d.1) strikes a fair balance between collective rights and individual rights, and is part of a broader legislative scheme designed to confirm the primacy of breathalyzer test results. It is a justified infringement of the right to be presumed innocent.
The presumption of identity established in s. 258(1)(d.1) is based on the usual behaviour of drivers, who do not generally drink a sufficient quantity of alcohol to alter the results either just before or just after being pulled over by the police. It is in fact the exceptional behaviour of the accused, not the statutory presumption in the prosecution’s favour under s. 258(1)(d.1), that makes it necessary for the accused to testify. The choice by the accused to testify in this regard flows from a decision that must be made whenever the Crown’s evidence is sufficient to support a conviction. Thus, the protection against self‑incrimination guaranteed by s. 11 (c) of the Charter is not infringed.
In this case, the trial judge erred in holding that L could rebut the presumption of accuracy of s. 258(1) (c) of the Criminal Code by presenting a Carter defence, but that error did not affect his conclusion, since, when all is said and done, he did not believe L. L’s conviction is therefore upheld.
Per Rothstein and Cromwell JJ. (dissenting in part): The appeal should be allowed and the constitutional questions should be answered in the negative.
Sections 258(1) (c), 258(1) (d.01) and 258(1) (d.1) of the Criminal Code are based on three quite straight‑forward ideas. These ideas are that if all of the statutory requirements for taking and analyzing breath samples are observed: (1) the breathalyzer results are reliable in the absence of some basis in the evidence to doubt them; (2) the estimated blood alcohol concentration (“BAC”) arrived at by consumption and elimination evidence (so‑called Carter evidence) is not sufficiently reliable to be used to challenge the accuracy of breathalyzer results; and (3) the BAC at the time of testing will not be higher than at the time of driving, unless the accused drank a large quantity of alcohol shortly before driving or consumed alcohol between driving and testing.
None of the challenged provisions limits the right under s. 11 (c) of the Charter not to be compelled to testify. Although all of the provisions are challenged under ss. 7 and 11 (d) of the Charter , the constitutionality of the provisions which address the burden of proof are best analyzed under s. 11 (d), while those which limit the relevance of, or exclude evidence in relation to, particular issues are best analyzed under s. 7 .
The fact that s. 258(1) (d.01) of the Criminal Code excludes Carter evidence to challenge the proper functioning or operation of the approved instrument does not violate s. 7 of the Charter . The parties contesting the provision have not shown that s. 258(1) (d.01) limits in any meaningful respect the right to make full answer and defence. In the face of the compelling evidence presented by the Crown about the generally misleading nature of Carter evidence in relation to the accuracy of the breathalyzer, those challenging the exclusion of this evidence had to advance some evidence suggesting that, despite its great potential to mislead, there remained some reason not to restrict the use of Carter type evidence. There is no such evidence in this record. Although hypothetical scenarios can form the basis of a Charter challenge, they must be reasonable. The other ground advanced in support of the s. 7 challenge — that s. 258(1) (d.01) makes a defence “illusory” — must also be rejected.
Section 258(1) (c) of the Criminal Code restricts evidence in relation to the accuracy of the device to evidence that tends to show three things: (1) that the device malfunctioned or the analysis was performed improperly, (2) that the improper performance resulted in the determination that the accused’s BAC exceeded .08, and (3) that the accused’s BAC was in fact lower than .08 at the time of the offence. The first two of these elements do nothing more than to recognize the reality that breathalyzer readings, when obtained under the statutory requirements, should be taken as accurate absent some reason to think otherwise. Absent some evidence to suggest that the analysis is not accurate, a reasonable doubt based simply on the general notion that technology may be fallible or that there is a hypothetical possibility not founded on the evidence that the device malfunctioned or was not operated properly would not be a rational conclusion. Thus, requiring the inference of accuracy to be drawn absent evidence to the contrary does not limit the right to make full answer and defence. As for the third component, it does no more than set out in statutory form what this Court has consistently held is required as a matter of logic and relevance to rebut the presumption of accuracy.
A provision limits the right to be presumed innocent guaranteed by s. 11 (d) of the Charter if it either (a) relieves the Crown of having to present a case to meet before the accused is called on to answer or (b) creates the risk of conviction even if, without the provision, the trier of fact could have a reasonable doubt about the accused’s guilt. The presumption of accuracy in s. 258(1) (c) does not create a risk of conviction in the presence of a reasonable doubt about guilt. It therefore does not limit the right to be presumed innocent and there is no need to consider whether any limitation is justified under s. 1 of the Charter . In requiring some evidence tending to show improper functioning or operation, the provision simply enacts common sense in light of accepted scientific fact. Parliament is entitled to legislate this rather than require the evidence to be called in every “blowing over” prosecution. Furthermore, in order to constitute evidence to the contrary as a matter of logic and relevance, that evidence must tend to raise a doubt that the BAC in fact did not exceed .08. It follows that this third aspect of s. 258(1) (c) simply translates that requirement for materiality into the consideration of whether the device functioned or was operated improperly.
With respect to the presumptions of identity in s. 258(1) (c) and (d.1) of the Criminal Code , there is overwhelming evidence that a breathalyzer test administered in accordance with the statutory requirements and which reveals an over .08 result is a reliable indication that the accused had a BAC which was equal to or higher than that at the time of driving. There is no infringement of the right to be presumed innocent by deeming that the BAC at the time of testing is the same as at the time of driving. Parliament has simply legislated well‑established facts so that they do not have to be proved in every case. There is no risk of conviction on the basis of a reasonable doubt that has a basis in common sense and logic in the evidence or the absence of evidence. A doubt about the presumptions of identity based on “bolus or intervening drinking” would be speculative, absent evidence supporting the fact that one or the other of those scenarios had actually occurred. The fact of post‑driving drinking is peculiarly in the knowledge of the accused and it would be unduly onerous to require the prosecution to negate this rather unusual possibility in every case even when it had no foundation in the evidence. Also, the challenged provisions do not relieve the Crown of its obligation to present a case to meet before the accused is called on to answer. Where an over .08 breathalyzer test result is obtained in accordance with the statutory requirements, a trial judge cannot conclude that there is no evidence upon which he could reasonably convict an accused person.
Even assuming that ss. 258(1) (c), 258(1) (d.01) or 258(1) (d.1) of the Criminal Code limit the right to be presumed innocent as guaranteed by s. 11 (d) of the Charter , any limitation is reasonable and demonstrably justified in a free and democratic society.
Cases Cited
By Deschamps J.
Considered: R. v. Crosthwait, [1980] 1 S.C.R. 1089; R. v. St. Pierre, [1995] 1 S.C.R. 791; referred to: R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499; R. v. Carter (1985), 19 C.C.C. (3d) 174; R. v. Gilbert (1994), 92 C.C.C. (3d) 266; R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3; R. v. Milne (1996), 107 C.C.C. (3d) 118; R. v. Coutts (1999), 45 O.R. (3d) 288; R. v. Huff, [2000] O.J. No. 3487 (QL); R. v. Powichrowski, 2009 ONCJ 490, 70 C.R. (6th) 376; R. v. Gibson, 2008 SCC 16, [2008] 1 S.C.R. 397; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Downey, [1992] 2 S.C.R. 10; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Whyte, [1988] 2 S.C.R. 3; Dubois v. The Queen, [1985] 2 S.C.R. 350; R. v. Hummel (1987), 36 C.C.C. (3d) 8; R. v. Phillips (1988), 42 C.C.C. (3d) 150; R. v. Drolet, 2010 QCCQ 7719, [2010] R.J.Q. 2610; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; R. v. Chaulk, [1990] 3 S.C.R. 1303; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; R. v. Duff, 2010 ABPC 319, 501 A.R. 122; R. v. Gillespie, 2010 BCPC 207 (CanLII); R. v. Muzuva (2010), 206 C.R.R. (2d) 18; R. v. Cayer, 2010 QCCQ 9352 (CanLII); R. v. Laforge, 2010 QCCQ 7718, [2010] R.J.Q. 2537; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Morgentaler, [1988] 1 S.C.R. 30; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Kasim, 2011 ABCA 336, 515 A.R. 254; R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443; R. v. Paszczenko, 2010 ONCA 615, 103 O.R. (3d) 424; R. v. Grosse (1996), 29 O.R. (3d) 785; R. v. Hall, 2007 ONCA 8, 83 O.R. (3d) 641; R. v. Bulman, 2007 ONCA 169, 221 O.A.C. 210.
By Cromwell J. (dissenting in part)
R. v. Carter (1985), 19 C.C.C. (3d) 174; R. v. Gibson, 2008 SCC 16, [2008] 1 S.C.R. 397; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Crosthwait, [1980] 1 S.C.R. 1089; R. v. St. Pierre, [1995] 1 S.C.R. 791; R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499; R. v. Lifchus, [1997] 3 S.C.R. 320; Dubois v. The Queen, [1985] 2 S.C.R. 350; R. v. Appleby, [1972] S.C.R. 303; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Whyte, [1988] 2 S.C.R. 3; R. v. Schwartz, [1988] 2 S.C.R. 443; R. v. Bulman, 2007 ONCA 169, 221 O.A.C. 210; R. v. Grosse (1996), 29 O.R. (3d) 785; R. v. Hall, 2007 ONCA 8, 83 O.R. (3d) 641; R. v. Paszczenko, 2010 ONCA 615, 103 O.R. (3d) 424.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 11 (c), (d).
Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 51 .
Criminal Code, R.S.C. 1985, c. C‑46, ss. 212(3) , 253(1) (b), 254(2) , (3) , 258(1) (c), (d.01), (d.1), (g), 276 .
Criminal Law Improvement Act, 1996, S.C. 1997, c. 18, s. 10(2).
Interpretation Act, R.S.C. 1985, c. I‑21, s. 25(1) .
Tackling Violent Crime Act, S.C. 2008, c. 6 .
Authors Cited
Canada. House of Commons. House of Commons Debates, vol. 141, 1st Sess., 39th Parl., January 30, 2007, pp. 6185, 6186.
Canada. Senate. Standing Senate Committee on Legal and Constitutional Affairs. Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, No. 9, 2nd Sess., 39th Parl., February 21, 2008, p. 37.
Canadian Society of Forensic Science. “Recommended Standards and Procedures of the Canadian Society of Forensic Science Alcohol Test Committee” (2009), 42 Can. Soc. Forensic Sci. J. 1.
Cross on Evidence, 7th ed. By the late Sir Rupert Cross and Colin Tapper. London: Butterworths, 1990.
Hodgson, Brian T. “The Validity of Evidential Breath Alcohol Testing” (2008), 41 Can. Soc. Forensic Sci. J. 83.
Martin, T. L., J. G. Wigmore and K. L. Woodall. “A Comparison of Blood Alcohol Concentrations Estimated From Drinking Histories of Drivers Charged with ‘Over 80’ and Their Intoxilyzer® 5000C Results” (2004), 37 Can. Soc. Forensic Sci. J. 187.
Robertson, Robyn, Ward Vanlaar and Herb Simpson. National Survey of Crown Prosecutors and Defence Counsel on Impaired Driving: Final Report. Ottawa: Traffic Injury Research Foundation, July 2008.
Sommers, Marilyn Sawyer, et al. “‘Nurse, I Only Had a Couple of Beers’: Validity of Self‑Reported Drinking Before Serious Vehicular Injury” (2002), 11 Am. J. Critical Care 106.
Wigmore, J. G. “Man vs. Machine: Self‑Reported Alcohol Consumption of Drinking Drivers vs. Evidential Breath Alcohol Tests. Is the Restriction of Evidence to the Contrary Scientifically Valid?” (2009), 54 Crim. L.Q. 395.
APPEAL from a judgment of the Court of Québec (Judge Chapdelaine), 2010 QCCQ 8552, [2010] J.Q. no 10077 (QL), 2010 CarswellQue 10716, convicting the accused of driving with a blood alcohol level over the legal limit and upholding in part the constitutionality of ss. 258(1) (c), (d.01) and (d.1) of the Criminal Code . Appeal allowed in part, Rothstein and Cromwell JJ. dissenting in part.
Michel Déom, Jean‑Vincent Lacroix, Marie‑Ève Mayer and Patricia Blair, for the appellants.
Patrick Fréchette, for the respondent.
François Joyal and Ginette Gobeil, for the intervener the Attorney General of Canada.
James V. Palangio and Philip Perlmutter, for the intervener the Attorney General of Ontario.
Christian Vanderhooft and Nathaniel Carnegie, for the intervener the Attorney General of Manitoba.
Rodney Garson and Roger F. Cutler, for the intervener the Attorney General of British Columbia.
Jason R. Russell and Robert Palser, for the intervener the Attorney General of Alberta.
Marco LaBrie and Jean‑Philippe Marcoux, for the intervener Barreau du Québec.
Éric Downs and Julie Bolduc, for the intervener Association québécoise des avocats et avocates de la défense.
Patrick Ducharme and Paul Burstein, for the intervener the Criminal Lawyers’ Association of Ontario.
Shannon K. C. Prithipaul, for the intervener the Criminal Trial Lawyers’ Association.
English version of the judgment of McLachlin C.J. and LeBel, Deschamps, Fish and Abella JJ. delivered by
[1] Deschamps J. — This appeal concerns the constitutionality of certain provisions of the Criminal Code, R.S.C. 1985, c. C‑46 (“Cr. C.”), that deal with offences involving driving with a blood alcohol level over the legal limit. The questions raised in it relate to the right to be presumed innocent, the right to make full answer and defence and the protection against self‑incrimination (ss. 11 (d), 7 and 11 (c), respectively, of the Canadian Charter of Rights and Freedoms ).
[2] The impugned provisions include four new requirements that must be met by a person charged with driving with a blood alcohol level exceeding 80 mg of alcohol in 100 ml of blood (.08) in order to rebut the presumptions that apply in the prosecution’s favour in such a case. Three of these requirements relate to the presumption of accuracy and one of the presumptions of identity that attach to the results of the test to which a person must submit when required to do so by the police. To challenge the reliability of the results, the accused must raise a doubt: (1) that the breathalyzer instrument was functioning and was operated properly; (2) to the effect that the determination that the blood alcohol level of the accused exceeded the legal limit resulted from a malfunction or improper operation of the instrument; and (3) to the effect that the blood alcohol level of the accused would not in fact have exceeded the legal limit at the time when the offence was alleged to have been committed. Moreover, a new requirement must now be met in order to rebut the presumption of identity of the test results showing that the blood alcohol level of the accused exceeded the legal limit with his or her actual blood alcohol level at the time of the alleged offence. This presumption can be rebutted only if the evidence adduced by the accused shows that his or her consumption of alcohol was consistent not only with a blood alcohol level under the legal limit at the time of the offence, but also — and this is the new requirement — with the test results.
[3] For the reasons that follow, I find that Parliament was justified in requiring that any evidence adduced to cast doubt on the test results be directed at the functioning or operation of the instrument. However, where such evidence casts doubt on the reliability of the results, the imposition of additional conditions does not constitute a reasonable limit on the right to be presumed innocent. I would reject all the other constitutional arguments that have been raised.
[4] The impugned provisions are one aspect of the broader fight against drinking and driving, a problem that has preoccupied Parliament and the courts for several decades now. I will therefore begin by reviewing the historical background and the legislative history of these provisions before inquiring into their validity. I will conclude by considering the specific case of the respondent.
1. Historical Background
[5] In 1969, Parliament made it a criminal offence for a person to operate or have the care of a vehicle while his or her blood alcohol level exceeded .08, and made it mandatory under the Criminal Code to provide breath samples for analysis for the purpose of determining whether that offence had been committed. Among other things, the relevant provisions required a person stopped by the police to provide breath samples and created a mechanism by which those samples would be analyzed by designated technicians using approved devices. Parliament also introduced presumptions (of accuracy and identity) that would apply if certain conditions were met and would make it easier for the prosecution to prove that a person had operated or had the care of a vehicle while his or her blood alcohol level exceeded the legal limit.
[6] According to the presumption of accuracy, the certificate of the technician responsible for the analyses is presumed to provide an accurate determination of the person’s blood alcohol level at the time the breath samples were taken. According to the first presumption of identity, a person’s blood alcohol level as shown by the test is presumed to be the same as his or her blood alcohol level at the time of the alleged offence. Pursuant to a second presumption of identity added by Parliament in 1997 (Criminal Law Improvement Act, 1996, S.C. 1997, c. 18, s. 10(2)), a blood alcohol level that exceeds .08 at the time of the analyses is presumed to have also exceeded .08 at the time when the offence was alleged to have been committed (R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499, at para. 14).
[7] Before the impugned amendments were enacted, the relevant provisions stated that the presumptions could be rebutted by producing “evidence to the contrary”. The Ontario Court of Appeal considered the meaning of the expression “evidence to the contrary” in R. v. Carter (1985), 19 C.C.C. (3d) 174, and R. v. Gilbert (1994), 92 C.C.C. (3d) 266. It held that, under the provisions in force at the time, the testimony of the accused concerning his or her alcohol consumption, combined with an explanation by a toxicologist of the implications of that consumption, could be tendered as “evidence to the contrary” in order to raise a doubt about the results of the breathalyzer test. This defence is known as the “Carter defence” after one of the Ontario Court of Appeal cases mentioned above.
[8] In Gilbert, Osborne J.A., although acknowledging the validity of the defence, had expressed doubts about the chances of succeeding with it (at p. 280):
An accused who is charged with an offence, the essence of which is that he was driving with an impermissibly high blood‑alcohol concentration level must be able to lead evidence as to the quantity of alcohol that he consumed at relevant times. I do not think it is necessary that this kind of evidence be accompanied by an attack on the particular breathalyzer machine, or its operator. It may well be that without such an attack it may be difficult for an accused to have the tendered evidence accepted to the point of raising a reasonable doubt. That, however, does not make the evidence inadmissible generally, or, as I have said, inadmissible because it constitutes an indirect attack on the breathalyzer or its manner of operation.
Despite these reservations, the Carter defence proved to be effective, as can be seen from the subsequent cases on this issue.
[9] Moreover, it was held that the prosecution could not generally use roadside sobriety tests conducted by the police to incriminate a person who had operated or had the care of a vehicle: R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3, at para. 58; R. v. Milne (1996), 107 C.C.C. (3d) 118 (Ont. C.A.); R. v. Coutts (1999), 45 O.R. (3d) 288 (Ont. C.A.); R. v. Huff, [2000] O.J. No. 3487 (QL) (Ont. C.A.). Furthermore, the results of a breathalyzer test could not be used to assess the credibility of an accused who raised a Carter defence (Boucher, at paras. 43 and 64).
[10] Because of these rules, it was thought by some that the statutory presumptions attaching to breathalyzer test results did not operate as Parliament had intended. In R. v. Powichrowski, 2009 ONCJ 490, 70 C.R. (6th) 376, Judge Duncan described what he saw as an impasse faced by the prosecution in certain impaired driving cases under the former legislative scheme (at para. 23):
An indirect result of the development of the case law, particularly R. c. Boucher as interpreted and distinguished in R. v. Snider (2006), 31 M.V.R. (5th) 296 (Ont. C.J.) and subsequent decisions, was that in cases involving a Carter defence, prosecutors partly abandoned section 258 and attempted to prove their cases the long way around without aid of the statutory presumption of accuracy or, more precisely, the burden of its accompanying jurisprudence. Ironically then, the very legislation that was designed to facilitate proof of the prohibited condition in order to help combat the menace of drinking and driving had become an obstacle to be avoided by the prosecution.
[11] These difficulties were well known. In a 2006 report prepared for the Department of Justice, Brian T. Hodgson, a forensic toxicology consultant, stressed the importance of re‑establishing the primacy of the test results:
For the continuing use of the statutory legal limit enunciated in subsection 253(b) CCC, over 80, the law needs to reestablish the primacy of scientific evidential results. The defence of “evidence to the contrary” needs to be directed specifically to the factors that impact on the evidential breath alcohol results such as: deficiencies in the test process and/or the drinking patterns of the accused just prior to the time of offence (within 30 minutes) or drinking after the time of offence but before the time of testing. The Supreme Court’s acceptance of the subjective, non‑scientific statements of an accused person about his drinking history leading up to the time of offence without reference to the scientific evidential results is incompatible with the scientific basis of 253(b) CCC. [Emphasis added.]
(“The Validity of Evidential Breath Alcohol Testing” (2008), 41 Can. Soc. Forensic Sci. J. 83, at p. 94)
[12] On January 30, 2007, Rob Moore, the Parliamentary Secretary to the Minister of Justice, gave an overview of Bill C‑32’s restrictions on the type of “evidence to the contrary” that can be tendered to defend against a charge of impaired driving:
Probably the most important change in this bill is the proposal to ensure that only scientifically valid defences can be used where a person is accused of driving with a concentration of alcohol exceeding 80 milligrams in 100 millilitres of blood. This is known as driving over 80.
(House of Commons Debates, vol. 141, 1st Sess., 39th Parl., January 30, 2007, at p. 6185)
[13] Bill C‑32 died on the Order Paper, however. Then, on October 18, 2007, the government introduced Bill C‑2, entitled the Tackling Violent Crime Act . Bill C‑2 essentially reproduced Bill C‑32’s restrictions on evidence to the contrary that would be admissible at a trial involving a charge of driving with a blood alcohol level over the legal limit. The Tackling Violent Crime Act (S.C. 2008, c. 6 ) was assented to on February 28, 2008. Four of the requirements at issue in this appeal came into force on July 2, 2008, while the fifth dates back to 1997. All the provisions in question are reproduced in the Appendix.
2. Changes Resulting from the New Provisions
[14] Before beginning the constitutional analysis, I should explain how the scheme applicable to prosecutions for driving with a blood alcohol level over the legal limit has been restructured by the statutory amendments.
2.1 Presumptions
[15] Before 2008, it was settled law that s. 258 Cr. C. established two presumptions of identity and one presumption of accuracy. The amendments have not changed the nature of these presumptions. Section 258(1) (c) Cr. C. establishes a presumption of accuracy of the results of the analyses, and a presumption of identity according to which the results are presumed to correspond to the blood alcohol level of the accused at the time of the alleged offence. (In the past, this Court placed the presumption of accuracy in s. 258(1) (g) Cr. C. However, the 2008 amendments indicate clearly that Parliament intended them to apply to both the presumption of accuracy and the presumptions of identity, and that it was also incorporating the presumption of accuracy into s. 258(1) (c).) Section 258(1) (d.1) Cr. C. establishes a second presumption of identity according to which a blood alcohol level over .08 at the time of the analysis is presumed to be the same as the blood alcohol level of the accused at the time of the alleged offence.
2.2 Standard of Proof
[16] Nor has the standard of proof that must be met to rebut the presumptions been changed. In R. v. Crosthwait, [1980] 1 S.C.R. 1089, this Court stated that evidence to the contrary tendered by the accused in respect of the test results was sufficient if it raised a reasonable doubt. In R. v. Gibson, 2008 SCC 16, [2008] 1 S.C.R. 397, the Court held that the two expressions “evidence tending to show” and “evidence to the contrary” gave rise to the same standard: reasonable doubt (para. 17). The use of the word “conclusive” in s. 258(1) (c) Cr. C. does not mean that the presumptions are irrebuttable, as evidence to the contrary can still be presented to counter them.
2.3 Evidence
[17] The statutory amendments affect the evidence that can be adduced to rebut the presumption of accuracy and the first presumption of identity. The combined effect of the requirements set out in s. 258(1) (c) and s. 258(1) (d.01) Cr. C. is to preclude the Carter defence in its previous form. The accused can no longer simply present a Carter defence. Rather, he or she must (1) raise a doubt that the instrument was functioning or was operated properly, (2) show that the malfunction or improper operation of the instrument resulted in the determination that his or her blood alcohol level exceeded the legal limit, and (3) show that his or her blood alcohol level would not in fact have exceeded that limit at the time when the offence was alleged to have been committed. I cannot accept the interpretation according to which the third of these requirements from s. 258(1) (c) Cr. C. is not in fact a distinct requirement but follows from proof of the first two (Powichrowski, at para. 31). The wording of the English version of the provision makes it clear that this third requirement is indeed a separate one: the accused must produce evidence tending to show “three things”. Under the provisions as amended, mere evidence that a deficiency in the test