Proof of Blood Alcohol Levels

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General Principles

As part of proving the offence of "Over 80" under s. 253(1)(b), the Crown must prove the accused's Blood Alcohol Content (BAC) at the time was over 0.08 milligrams of alcohol per millilitre of blood. This must have occurred while operating or in care and control of a motor vehicle.[1]

Traditionally, proving the blood alcohol level required expert evidence from the breath technician who took the sample. Section 258(1)(g) was added to remove the need for a breath technician to testify. Where a breath or blood sample was taken and complies with all the requirements of s. 258(1)(c), 258(1)(d.1), and 258(7), the results are, with some exception, deemed conclusive as to the BAC while in operating the vehicle removing the need for a breath technician to testify.

It is also necessary that the sample be taken pursuant to a breath demand under s. 254(3).

The provisions admitting the certificate without the breath technician must be interpreted strictly as it removes the right to cross-examine and put the burden upon the accused to prove the inaccuracy of the analysis.[2] However, the judge should still be "pragmatic" when it comes to omissions and typographical errors. Errors that do not prejudice the accused, having regard to the circumstances, are not necessarily sufficient.[3]

  1. see R v MacConnell, (1980), 54 CCC (2d) 188 (Ont. C.A.))
  2. R v Noble, 1977 CanLII 169 (SCC), [1978] 1 SCR 632
  3. R v Rebelo, 2003 CanLII 15215 (ON SC) at para 38

Presumption of Identity s. 258(1)(c)

See also: Presumption of Identity Under Section 258

Section 258(1)(c) creates a presumption that is known as the presumption of identity which is a short cut to establishing the driver's BAC at the time of the offence. If the Crown can satisfy the preconditions of this section, there is a presumption created that the accused’s blood alcohol level at the time of the offence was the same as at the time of testing.

Admission of Breath Test Results

The breath test results can be admitted into evidence either by way of 1) viva voce evidence of the qualified technician; or 2) tendering the Certificate of the qualified technician under s. 258(1)(g).

The crown is permitted to rely the results proven both ways.[1]

Section 258(1)(g) states that:

Proceedings under section 255
s. 258 (1)
...

(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) [Repealed before coming into force, 2008, c. 20, s. 3]
(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;
...
R.S., 1985, c. C-46, s. 258; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 61; 1992, c. 1, s. 60(F); 1994, c. 44, s. 14(E); 1997, c. 18, s. 10; 2008, c. 6, s. 24.


CCC

To rely upon s. 258(1)(g) requires:[2]

  1. the analysis of each samples has been made by means of an approved instrument
  2. the instrument was operated by the technician
  3. the technician ascertained it 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
  4. the results of the analyses are made out
  5. the time and place of each sample was made out
  6. each sample was received from the accused directly into an approved container or into an approved instrument operated by the technician
  1. R v Staples, 1997 CanLII 1312 (ON CA), [1997] OJ 4565 (CA)
  2. R v Lightfoot, [1981] 1 SCR 566, 1981 CanLII 47 (SCC)

Presumption of Accuracy

The presumption of accuracy is the presumption that the readings of the Certificate are an accurate representation of the accused's BAC unless there is "evidence to the contrary". Although, the presumption is not contained within s. 258, it arises out of operation of the application of s. 25(1) of the Interpretation Act to s. 258(1)(g).[1] Thus, the presumption only applies where the evidence of readings are admitted through the tendering of the Certificate of the qualified technician.[2]

The presumption means forgoing the need for the testimony of the breath technician to testify to validate the certificate.[3] The Crown may introduce the "certificate as prima facie proof of the facts contained therein, without the need to prove the signature or the official character of the person signing the certificate."[4]

Admission of a certificate under s. 258(1)(g) "is evidence of [the technician's] status as a qualified technician".[5]

"Approved Instrument"
The term "approved instrument" is defined in s. 254 as:

254 (1) In this section and sections 254.1 to 258.1,
...
approved instrument means an instrument of a kind that is designed to receive and make an analysis of a sample of the breath of a person in order to measure the concentration of alcohol in the blood of that person and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada; ...
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.


CCC

"Qualified Technician"
The term "qualified technician" is defined in s. 254 as:

254 (1) In this section and sections 254.1 to 258.1,
...
qualified technician means,

(a) in respect of breath samples, a person designated by the Attorney General as being qualified to operate an approved instrument, and
(b) in respect of blood samples, any person or person of a class of persons designated by the Attorney General as being qualified to take samples of blood for the purposes of this section and sections 256 and 258.

...
R.S., 1985, c. C-46, s. 254; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), ss. 14, 18(F), c. 32 (4th Supp.), s. 60; 1999, c. 32, s. 2(Preamble); 2008, c. 6, s. 19.


CCC

Rebuttal of Presumption
To rebut the presumption of accuracy the defence must raise a reasonable doubt that:[6]

  1. the approved instrument was functioning properly and operated properly;
  2. the malfunctioning or improper operation resulted in the determination that the concentration of alcohol in the defendant's blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, and
  3. the concentration of alcohol in the accused's blood would not have exceeded 80 milligrams of alcohol in 100 millilitres of blood.

With the amendments of s. 258 in July, 2008 in Bill C-2, the presumption is generally not applicable, as there is no longer any option to present "evidence to the contrary".

  1. Section 25(1) states:
    "Documentary evidence
    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.
    ...
    R.S., c. I-23, s. 24. see IA
  2. R v Kernighan, 2010 ONCA 465 (CanLII), [2010] OJ 2671
    R v Chow, 2010 ONCA 442 (CanLII), [2010] OJ 2527 (CA)
  3. R v Boucher, 2005 SCC 72 (CanLII), [2005] 3 SCR 499
  4. R v Charette, 2009 ONCA 310 (CanLII) at para 6
  5. R v Lange, 2016 SKCA 70 (CanLII) at para 17
  6. R v St. Onge Lamoureux, 2012 SCC 57 (CanLII)
    see also R v Jenabfar, 2012 ONCJ 26 (CanLII) at para 17

Oral Evidence of the Breath Technician

The officer cannot simply give evidence stating that the readings were in "milligrams percent" without specifying what substances are being measured.[1]

  1. R v Zeller, 2010 SKPC 99 (CanLII) - oral evidence failed state that the measurement was alcohol in blood.

Certificate of Analysis

The Certificate of Analysis is the document setting out the readings from the breath test. It can be admissible as evidence without calling the breath technician to give viva voce evidence where it can be established where:

  1. the sample was taken in compliance with the requirements of s. 258(1)(c) and 258(1)(d.1), 258(1)(g)[1]
  2. notice of intention to produce the Certificate of Analysis

In determining the admissibility of the certificate, the court may consider the contents of the certificate.[2]

In agreeing to admit the toxicologist report does not amount to a concession of the essential elements or facts against them. [3]

  1. R v Hruby (1980) 4 MVR 192, 1980 ABCA 20 (CA)
    R v Pickles (1973) 11 CCC (2d) 210 (ONCA)(*no link)
  2. R v Schlegel, 1985 CanLII 652 (BCCA) at para 19 and page 447
  3. R v Legris, 2008 CanLII 64386 (ON SC), at para 9

Notice

Section 258(7) provides a requirement for notice before a "shortcut" can be taken in proving blood‑alcohol content.

The provision requires two things. First, that the accused be given reasonable notice of intention to produce the Certificate of Analysis at trial, and second, that the accused be given a copy of the Certificate.

s. 258
...
Notice of intention to produce certificate
(7) No certificate shall be received in evidence pursuant to paragraph (1)(e), (f), (g), (h) or (i) unless the party intending to produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate.
R.S., 1985, c. C-46, s. 258; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 61; 1992, c. 1, s. 60(F); 1994, c. 44, s. 14(E); 1997, c. 18, s. 10; 2008, c. 6, s. 24.


CCC

It is mostly accepted that the certificate must be proven on a balance of probabilities.[1]

The Certificate given to the accused does not need to be signed as a duplicate. It is acceptable as long as it "is a true copy in all essential particulars and conveys to the defendant all of the required information."[2]

The term "copy" must mean "true copy" as an untrue copy would not even be a copy.[3]

The officer can be challenged on whether he served the accused with a true copy. The police officer must be able to confirm that he had verified that it was a true copy or else the Certificate would not be admissible.[4] Merely glancing at the documents is not enough to ensure it was an exact reproduction.[5] However, word for word comparison is not necessary either.[6] There is suggestion that service of a carbon copy can be considered a duplicate and so may not need review.[7] Photocopies are generally sufficient.[8] However, they must be legible to be valid.[9]

When serving notice is it necessary that the officer be satisfied that the accused understood the notice. This is particularly relevant where there are language difficulties recognized by the officer.[10]

Receipt of Notice
Service of a notice under s. 258(7) does not require the accused to have continued control in possession of the certificate after receiving notice.[11] However, a separate line of cases suggest that the accused must have personal possession for a sufficient period of time.[12]

  1. Balance of probabilities:
    R v Redford, 2012 ABPC 19 (CanLII) - comprehensive summary of the law aff'd 2014 ABCA 336
    R v Buffalo, 2010 ABQB 325 (CanLII), (2010), 480 A.R. 284 (Alta. Q.B.)
    R v Nelson, 2006 ABQB 297 (CanLII), [2006] A.J. No. 467 (Alta. Q.B.)
    R v Mokelky, 2008 ABPC 343 (CanLII)
    R v MacKinnon, 2003 CanLII 48350 (ON CA), [2003] O.J. No. 3896 at para 2
    c.f. beyond a reasonable doubt:
    R.v. Duplessis, 2006 ABQB 297 (CanLII), (2007), 49 MVR (5th) 252 (Alta. QB)
  2. R v Glass, 1973 CanLII 891 (SK CA), [1973] 5 W.W.R. 761, 12 CCC (2d) 450
  3. R v Barratt (1977), 35 CCC (2d) 174 (Ont. H.C.)(*no link) per Maloney J. at p. 175 concerning s. 237(5): ("...that the accused was served with a copy of the certificate of analysis within the meaning of s-s. (5) and, as I have said, that means a true copy")
  4. R v Vogel, 2010 SKPC 185 (CanLII)
  5. R v Stewart, 2012 SKPC 39 (CanLII) at para 47
  6. R v McEvoy, 2001 ABQB 851 (CanLII) at para 26
  7. R v Bergen 2009 ABPC 106 (CanLII)
  8. See R v Baird, 2005 SKPC 27 (CanLII), [2005] S.J. No. 225 (Sask. Prov. Ct.)
  9. See R v Leeson, [1985] BCJ No. 1630 (B.C. Co.Ct.)(*no link) - illegible photocopy held invalid
  10. R v Singh, 2012 ABPC 91 (CanLII) at para 36
  11. R v Redford, 2014 ABCA 336 (CanLII)
    R. v Dhillon [2007] O.J. No. 5256 (O.C.J.)
    R. v El Boury, 2016 ONSC 4900 (CanLII) - considers counter cases
  12. R v Braulin [1981] B.C.J. No. 1496 (B.C. Cty. Ct.) - the evidence indicated that he received a copy of the notice and then had it taken away shortly afterwards
    R v Garson [1982] S.J. No. 366 (Q.B.) - suggests accused is entitled to take the notice away for study
    R v Wong [2012] O.J. No. 4017 (O.C.J.) - simply showing the accused is not enough
    R v Liu [2014] O.J. No. 6486 (O.C.J.) - no evidence of personal possession resulted in certificate not being admitted
    R v Hurlbut [2015] O.J. No. 2459 (O.C.J.) - not admitted due to absence of personal possession
    R. v Singh [2016] O.J. No. 94 (O.C.J.)

Valid Certificate

A valid certificate should state the following on its face:

  • the time each sample was taken
  • the place each sample was taken
  • the results of the analysis of each sample
  • that each sample was taken from the accused
  • that each sample directly into the instrument
  • that each sample was taken by an approved instrument
  • the instrument was operated by a qualified technician
  • the instrument was calibrated using a suitable alcohol standard
  • the type of alcohol standard used

Errors in Certificate

Errors in the certificate are not necessarily fatal.

It is understood that the code provision are to be interpreted strictly,[1] The absence of prejudice may not warrant invalidating the certificate.[2]

Typographical errors in the certificate can be corrected in certain cases.[3] Where the certificate otherwise complies with s. 258(1)(g), then it is admissible and can be corrected by viva voce evidence.[4]

They can be corrected by presenting extrinsic credible evidence which provides a basis to establish that there was an error and what the correction would be. This will normally be through viva voce evidence. It should not be be done merely by inference.[5] The evidence can come from someone other than the technician.[6]

The scratching out of a number and insertion of a number is an error that needs to be clarified by viva voce evidence.[7]

An error in citing the Criminal Code provision regarding the designation of the certificate does not invalidate the certificate.[8]

An error in checking off the right box identifying the qualification of the technician can be fatal without some additional evidence on their qualification somewhere on the certificate.[9]

A failure to sign the certificate may render it inadmissible.[10] There suggestion that a printed name will suffice but a typed name will not.[11]

  1. R v Noble, [1978] 1 SCR 632, 1977 CanLII 169 (SCC) per Ritchie J
  2. R v Rebelo, 2003 CanLII 15215 (ON SC) at para 38 per Durno J
  3. R v Ryden, 1993 ABCA 356 (CanLII), (1994) 86 CCC (3d) 57
  4. R v Shadoff [1993] O.J. No. 534 (Ont. Gen. Div.)(*no link)
  5. R v Reutov, 2000 ABPC 112 (CanLII) at para 26
  6. R v Reutov
  7. R v Gabayne, 2012 ABPC 206 (CanLII)
  8. R v Ticknor (1990) MJ No 717(*no link)
  9. R v Fedun, 1993 CanLII 8969 (SK QB), [1993] S.J. No. 502 (Sask. Q.B.)
  10. R v Hopkins, 2009 NSSC 53 (CanLII) per Duncan J
  11. See Hopkins, ibid. at paras 26 to 30

"Evidence to the Contrary" (Pre-2008 Amendments to s. 258)

See also: Presumptions#Evidence to the Contrary

Evidence to the contrary is evidence that "tends to show" that the accused's blood alcohol level at the time of driving was below the legal limit of 80 milligrams percent.[1]

This type of evidence traditionally came in the following forms:[2]

  • evidence relating to the manner in which the machine was operated;
  • evidence the accused consumed alcohol after the offence and before the readings were obtained;
  • evidence of the time the last drink was consumed coupled with expert evidence that the last drink would not have been in the blood at the time of the driving (the "last drink defence");
  • evidence of the amount consumed, when it was consumed and a toxicologist who can determine the blood-alcohol level while driving;
  • use the same evidence regarding consumption to establish the machine as inaccurate.

Evidence of the accused's build and physical characteristics along with expert evidence of that person's rate of elimination on a date other than the offence date which shows a BAC level below 80 may be ETTC.[3]

It is improper to reject ETTC simply by comparing it to the certificate readings. There must be a consideration of the credibility of the ETTC to reject it.[4]

The defence does not have to lead evidence to establish ETTC. It can be inferred from all the evidence.[5]


  1. R v Clarke, 2003 ABPC 26 (CanLII), at para 17
    see s. 258(1)(d.1)
    R v Moreau, [1979] 1 SCR 261, 1978 CanLII 162 (SCC) per Beetz, J., at page 533
    R v Crothwaite, 1980 CanLII 182 (SCC), (1980) 52 CCC (2d) 129 per Pigeon, J. at page 139
  2. R v Jedig, [2000] O.J. No. 1120 (S.C.J.)(*no link)
  3. R v Taylor, 1978 ALTASCAD 344 (CanLII), (1978) 8 Alta. L.R. (2d) 31
    R v Dubois, 1990 CanLII 2776 (QC CA), (1990) 62 CCC (3d) 90
    Moreau
    R v Gibson, 1992 CanLII 2750 (SK CA), (1992) 72 CCC (3d) 28
    R v Heisler (1995) M.V.R. (3d) 305(*no link)
    R v Fedderson, (2001) A.J. No. 399(*no link)
  4. R v Payne, 1986 ABCA 133 (CanLII), (1986) 72 A.R. 396 per McClung, J.A. at page 398
    R v Emery, (2000) 252 A.R. 61(*no link) per Fraser, P.C.J. at page 71
  5. R v Kucher, 1979 ALTASCAD 174 (CanLII), (1979) 48 CCC (2d) 115

Carter Evidence

"Carter" evidence sometimes described as the "Carter defence", refers to defence evidence that is admitted for the purpose of presenting "evidence to the contrary", rebutting presumption of accuracy and presumption of identity.

The presumption can be rebutted by proof that the approved instrument analyzing the driver’s breath was malfunctioning or was operated improperly.[1]

It is not necessary for the accused to prove:[2]

  1. that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood; or
  2. that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed.

Before the July 2, 2008 amendments to s. 258(1)(c), the “Carter defence” was available for any offence of over 80. This allowed an accused to present evidence of consumption as well as expert evidence inferring the likely blood alcohol level.[3] Now such evidence is specifically inadmissible where the presumption of identity is being relied upon.[4]

Instead the accused may only present evidence showing that the approved instrument “was malfunctioning, or was operating improperly” and resulted in BAC over 80 when it otherwise would not have.

  1. R v So, 2013 ABCA 433 (CanLII) at para 7
    R v St-Onge Lamoureux, 2012 SCC 57 (CanLII)
  2. R v So at para 8
    St-Onge Lamoureux
  3. R v Carter, 1985 CanLII 168 (ON CA), [1985] OJ No 1390 (ONCA)
  4. s.258(1)(d.01)


Bolus Drinking

Bolus drinking is the consumption of a significant amount of alcohol just prior driving.[1] It is considered a relatively rare occurrence.[2] The Crown must disprove the possibility of bolus drinking.[3] This is usually done by common sense inferences.[4] Thus, absence any evidence on the record to the contrary, the Crown may simply rely upon the common sense inference that people do not normally ingest a large amount of alcohol immediately prior or during the operation of a motor vehicle.[5]

This in effect places a "practical evidentiary burden" on the accused, but does not place an onus or persuasive burden on the accused to prove that there was bolus drinking.[6]

See R v Calabretta, 2008 ONCJ 27 (CanLII) for a detailed consideration on Bolus drinking

  1. R v Flight, 2014 ABCA 185 (CanLII) at para 76
    R v Grosse, 1996 CanLII 6643 (ON CA), (1996), 29 OR (3d) 785, 91 OAC 40 at para 4
  2. R v Paszczenko, [2010] O.J. No. 3974 (C.A.), 2010 ONCA 615 (CanLII) at para 27
  3. Grosse at para 10
    Flight at para 77
  4. Paszczenko at para 29
    R v St-Onge Lamoureux, 2012 SCC 57 (CanLII) at para 95
    Grosse at para 15 - distinguishes from judicial notice
  5. R v Paszczenko
    R v Lima, [2010] O.J. No. 3974 (C.A.)(*no link) at para 27-31
  6. Flight at para 80

"Evidence Tending to Show" Malfunction or Improper Use of Instrument

The "evidence tending to show" the malfunctioning or improper use of the device does not need to come from an expert.[1]

It is only necessary that the defence "adduce evidence to raise a reasonable doubt as to the proper operation of the instrument".[2] This does not require that the defence "show the improper operation 'resulted in'... the reported concentration" of blood alcohol.[3]

Acid Reflux
Evidence of Gastroesophogal reflux disease (GERD) can has been found to constitute evidence to the contrary or otherwise raising a doubt as to the breathalizer readings.[4] To be considered the accused must present evidence that there was alcohol in the accused stomach and that acid reflux resulted in some of the alcohol being brought into his mouth.[5]

  1. R v So, 2013 ABCA 433 (CanLII) at para 16 and 2014 ABCA 451 (CanLII)
  2. R v So at para 44
  3. So at para 44
  4. e.g. R v Petrin, 2013 NWTCA 1 (CanLII) - unsuccessful
    R v Lynch (2011), 14 M.V.R. (6th) 146 (NL Prov. Ct.)(*no link) - successful
    R v Coffey, 2013 ONCJ 178 (CanLII)
  5. Petrin at para 49

Blood / Urine tests

A blood sample can be obtained by a) a demand under s. 254(3)(a)(ii),[1] b) by consent, or c) by a blood sample warrant under s. 256.

The blood sample test results can be proven by oral evidence through the normal rules of evidence or by documentary evidence of a certificate of a qualified medical practitioner or qualified technician. The certificate must comply with s. 258(1)(h).

For more details, see Seizure of Bodily Samples and Consent Search.

  1. "(ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood;"

Procedure

The defence must raise an issue with the admissibility of the analysis results during trial for it to be rendered inadmissible.[1] The issue should be raised no later than the point in Crown's case where the certificate is introduced or the oral evidence of the results are presented.[2] If the defence fails to challenge the admissibility of the analysis results, the Crown does not need to prove the officer's grounds to make the 254(3) demand.[3]

A challenge to the analysis results by way of a Charter challenge under s. 8 places the burden on the Crown to prove the grounds to make the 254(3) demand on a balance of probabilities.[4]

  1. R v Gundy, 2008 ONCA 284 (CanLII) at paras 19 to 24
  2. Gundy at para 50
  3. Gundy at para 50
  4. Gundy at para 50

See Also

External Link