Presumption of Identity Under Section 258 (Until December 13, 2018)

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2019. (Rev. # 96149)

General Principles

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 Blood-Alcohol Concretration (BAC) at the time of the offence.[1] 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."[2] However, if the presumption is not available, the crown must independently prove the accused's blood alcohol level at the time of the offence.[3] This usually requires expert testimony of a toxicologist.

A crown is always permitted to rely both on the presumption and also call evidence of the technician in the same trial.[4]

Section 258(1)(c) states:

Proceedings under section 255

258 (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),

[omitted (a) and (b)]
(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3) [taking samples of breath or blood within 3 hrs], if
(i) [Not in force]
(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,
(iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and
(iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,
evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things —* that the approved instrument was malfunctioning or was operated improperly, 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, and 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*; [emphasis added]
[omitted (d), (d.01), (d.1), (e), (f), (f.1), (g), (h), (i)]

[omitted (2), (3), (4), (5), (6) and (7)]
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.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 258(1)

258 (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),

[omitted (a) and (b), (c), (d), (d.01)]

(d.1) if samples of the accused’s breath or a sample of the accused’s blood have been taken as described in paragraph (c) or (d) under the conditions described in that paragraph and the results of the analyses show a concentration of alcohol in blood exceeding 80 mg of alcohol in 100 mL of blood, evidence of the results of the analyses is proof that the concentration of alcohol in the accused’s blood at the time when the offence was alleged to have been committed exceeded 80 mg of alcohol in 100 mL of blood, in the absence of evidence tending to show that the accused’s consumption of alcohol was consistent with both

(i) a concentration of alcohol in the accused’s blood that did not exceed 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed, and
(ii) the concentration of alcohol in the accused’s blood as determined under paragraph (c) or (d), as the case may be, at the time when the sample or samples were taken;
[omitted (e), (f), (f.1), (g), (h), (i)]

[omitted (2), (3), (4), (5), (6) and (7)]
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 (CanLII), (DOJ)

Note up: 258(1)

Requirements

The requirements under s. 258(1)(c) are summarized as:

  1. a demand was made under s. 254(3)
  2. each sample was made as soon as practicable after the time of the offence
  3. the first sample was "no later than two hours after [the time of the offence]"
  4. each sample is taken no less than 15 minutes apart
  5. each sample was received directly into an approved container or approved instrument
  6. the container or instrument was operated by a qualified technician.
  7. analysis of each sample was made by means of the approved machine operated by a qualified technician.

Where the requirements are satisfied, then the BAC level is made out. Much of the case law revolves around whether these elements are made out. If they are deficient in any way, then the presumption cannot be relied upon and it would be necessary for the Crown to present expert evidence on the disbursement of alcohol in the blood system over time to make the inference that the alcohol level was over 80 at the time of the offence.

Rebutting the Presumption

The presumption of identity can be rebutted by defence by establishing that:

  1. the BAC was consistent with a level below the legal BAC limit and
  2. consumption is consistent with the results.[5]
Effect of Charter Violations on the Presumption

Even where it is found that there was no reasonable and probable grounds to believe the suspects ability to drive was impaired, the presumption of identity still applies and a conviction will result so long as the certificate is not excluded under s. 24(2) of the Charter.[6]

(*) Constitutionality of s. 258

Section 258(1)(c)(d.01) and (d.1) of the Code are all constitutional. They violate s. 11(d) of the Charter but are justified under s. 1 of the Charter so long as the following phrases are struck:[7]

  • "all of the following three things -" (258(1)(c))
  • "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, and 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" (258(1)(c))
  1. ↑ R v Charette, 2009 ONCA 310 (CanLII), 243 CCC (3d) 480, per Moldaver JA, at para 4
    see R v St. Pierre, 1995 CanLII 135 (SCC), [1995] 1 SCR 791, per Iacobucci J
  2. ↑ Charette, supra, at para 4
  3. ↑ see R v Grosse, 1996 CanLII 6643, , 107 CCC (3d) 97, per curiam
  4. ↑ R v Smith, 2012 ONSC 4492 (CanLII), per Wein J
  5. ↑ R v St-Onge Lamoureux, 2012 SCC 57 (CanLII), [2012] 3 SCR 187, per Deschamps J
    nb: this formulation is the test as it relates to the presumption after the 2008 amendments.
  6. ↑ R v Anderson, 2013 QCCA 2160 (CanLII), 9 CR (7th) 203, per Belanger JA
    R v Rilling, 1975 CanLII 159 (SCC), [1976] 2 SCR 183, per Judson J
  7. ↑ St Onge Lamoureux

Sample Taken As Soon as Practicable

Under s. 258(1)(c)(ii), proceedings in respect of an offence under s. 253, 254(5), 255(2) to (3.2) in which samples of breath are taken pursuant to a 254(3) demand each sample must be "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".

This creates a right to be subject to the demand within a time limit or else the accused rights will be violated.

A test done "as soon as practicable" requires that the test be made “within a reasonably prompt time under the circumstances”. [1] This comes down to whether the police acted reasonably.[2]

It does not mean that the test must be taken at the very earliest moment.[3]

Where a delay is prima facie unreasonable the crown must prove beyond a reasonable doubt that the delay does not violate s. 258(1)(c)(iii) in order to rely on the presumption of identity.[4]

If the delay is explained satisfactorily, the presumption of identity can still be relied upon.[5]

Essentially, the court asks whether the police have taken the sample reasonably promptly? This standard does not mean “as soon as possible”. [6]

It also does not require the Crown to explain every detail or every minute of delay.[7] However, there should be an obligation "to demonstrate that – in all the circumstances – the breath samples were taken within a reasonably prompt time"[8] This is necessary to afford meaningful appellate review of the Trial Judge’s decision.[9]

The delay should be in “as limited time as is reasonably possible”[10] which can be a very flexible range of time.[11]

Under s. 258(1)(c)(ii), the Crown must be prepared to demonstrate that in the circumstances were taken in a reasonable time, including by showing the way the police are organized and why the samples were prompt.[12]

Where the peace officer reasonably believes that there is a risk to the security of the vehicle or its contents, a delay due to efforts to secure the vehicle will be a justifiable delay.[13]

Delay due to the officer's regular duties, such as making notes, searching car, basic questioning, and adjusting handcuffs, is generally considered reasonable.[14]

Delay due to controlling a difficult accused can be acceptable.[15]

Waiting for a tow truck will not necessarily violate the practicable requirement.[16]

Whether samples were taken "as soon as practicable" is a question of fact.[17]

  1. ↑ R v Vanderbruggen, 2006 CanLII 9039 (ON CA), per Rosenberg JA, at paras 12 to 16
    See R v Phillips, 1988 CanLII 198 (ON CA), 42 CCC (3d) 150, per Blair JA at 156;
    R v Ashby, 1980 CanLII 2920 (ON CA), 57 CCC (2d) 348, per Martin JA at 351
    R v Coverly, 1979 ABCA 269 (CanLII), 50 CCC (2d) 518, per Morrow JA at 522
  2. ↑ R v Letford, 2000 CanLII 17024 (ON CA), 150 CCC (3d) 225, per Goudge JA, at para 17 See R v Payne, 1990 CanLII 10931 (ON CA), 56 CCC (3d) 548, per Griffiths JA, at p. 552;
    R v Carter, 1981 CanLII 2063 (SK CA), 59 CCC (2d) 450 (Sask CA), per Culliton JA at 453;
    R v Van Der Veen, 1988 ABCA 277 (CanLII), 44 CCC (3d) 38, per Hetherington JA at 47;
    R v Clarke, [1991] OJ No 3065 (CA)(*no CanLII links)
    R v Seed, 1998 CanLII 5146 (ON CA), [1998] OJ No 4362, per curiam at 7 (In all the circumstances, did the police act "reasonably and expeditiously?")
  3. ↑ R v Mudry; R v Coverly, 1979 ABCA 269 (CanLII), 50 CCC (2d) 518, per Morrow JA
    R v Carter, 1980 CanLII 329 (BCCA), 55 CCC (2d) 405 (B.C. C.A.), per MacDonald JA
  4. ↑ R v CAJ, 2004 ABQB 838 (CanLII), 64 WCB (2d) 395, per Marceau J, at para 27
  5. ↑ R v Carter, 1981 CanLII 2063 (SK CA), [1981] SJ No 1337 (CA), per Culliton JA
  6. ↑ R v Altseimer, 1982 CanLII 2065 (ON CA), 1 CCC (3d) 7, per Zuber JA
    R v Payne, 1990 CanLII 10931 (ON CA), 56 CCC (3d) 548, per Griffiths JA
    R v Squires, 2002 CanLII 44982 (ON CA), [2002] OJ No 2314, per MacPherson JA
    Letford, supra
  7. ↑ See Letford, supra, at para 20
    R v Cambrin, 1982 CanLII 353 (BC CA), 1 CCC (3d) 59, per Craig JA at 61-63
    R v Vanderbruggen, 2006 CanLII 9039 (ON CA), 206 CCC (3d) 489, per Rosenberg JA, at para 16
  8. ↑ Vanderbruggen, ibid., at para 16
  9. ↑ e.g. R v Rienguette, 2012 ONSC 4633 (CanLII), per Gordon J, at paras 19 to 24 - judge gave limited reasons for "forthwith"
  10. ↑ R v Thomsen, 1988 CanLII 73 (SCC), [1988] 1 SCR 640, per Le Dain J
    R v Kachmarchyk, 1995 ABCA 155 (CanLII), 165 AR 314, per curiam at 234
  11. ↑ R v Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 SCR 254, per Sopinka J
  12. ↑ Letford, supra
  13. ↑ R v Hafermehl, 1993 ABCA 394 (CanLII), [1993] AJ No 981 (CA), per Fraser CJ
    R v Wetzel, 2012 SKQB 24 (CanLII), 391 Sask R 112, per Laing J, at para 29
  14. ↑ R v Papa [2006] OJ 1497(*no CanLII links) - 14 min between arrest and demand ("We expect more of a police officer than simply to make an arrest")
  15. ↑ R v Iyoupe, 1972 CanLII 1363 (NSCA), 8 CCC (2d) 198, per Cooper JA - 15 min delay after arrest due to difficulty with accused
  16. ↑ R v Wetzel, 2013 SKCA 143 (CanLII), 306 CCC (3d) 306, per Jackson JA
  17. ↑ See R v Lightfoot (1980) 4 MVR 238(*no CanLII links)
    R v Renda, 2005 CanLII 11969 (ON CA), [2005] O.J. No.1453 (CA), per curiam

Sample within Two Hours

Where the sample was taken outside of the two hour limit, the Crown can only prove the BAC levels by making an inference from the measured BAC level. This requires a qualified expert on the absorption, distribution and elimination of ethanol alcohol by the human body.

The opinion sought by the crown would be the BAC level while driving in light of :

  • the accused gender, age, height and weight
  • the time of driving
  • the time and readings of tests
  • whether any alcohol was consumed between driving and the tests, and what effect it would have on the readings
  • any evidence on the accused's drinking around the time of the incident
  • the timing of and amount of drinking needed to produce the readings without having BAC over 0.8 while driving

It is expected that an expert testifying will be relying on a number of assumptions, such as:[1]

  1. A rate of elimination of between X and Y milligrams of alcohol in one hundred millilitres of blood per hour (varying depending on the age, gender, height and weight of the individual)
  2. A two hour plateau;
  3. No consumption of alcohol between the time of driving until after the last test; and
  4. No significant consumption of alcohol just prior to, or an instant before the moment the accused was established as in care and control.

The expert should be able to testify to the number of “standard drinks” needed to be consumed at specific times prior to operating the vehicle for the readings to be generated. However, it may not be necessary to prove the actual case.[2]

Where such expert evidence is needed to establish BAC at the time of driving, the evidence may include the possibility of the BAC being either just below or just above 0.8. This is known as straddle evidence.

This evidence is considered admissible and may still be sufficient to support a conviction. The courts may consider the evidence, along with other factors relating to impairment, to determine whether this evidence raises a reasonable doubt rebutting the presumption in s. 258(1)(d.1).[3]

It is generally understood that the elimination rates is 20 mg of alcohol in 100 ml of blood per hour.[4]

  1. ↑ e.g. R v Baxter, 2012 ONCJ 91 (CanLII), per Schwarzl J, at para 13
  2. ↑ e.g. Baxter, supra, at para 26
  3. ↑ R v Gibson, 2008 SCC 16 (CanLII), [2008] 1 SCR 397, per Charron J
  4. ↑ See R v Paszczenko, 2010 ONCA 615 (CanLII), 103 OR (3d) 424, per Blair JA, at para 42

Interval Between Samples

The test involves the taking of three breath samples of no less than 15 minutes apart.

Where the gap between samples is greater than 20 minutes some explanation is required or else it may be not as soon as practicable in compliance with the requirements of s. 258(1)(c)(ii).[1]

The police are required to monitor the accused for the 15 minutes leading up to the breath test in order to ensure that there is no burping, vomiting, or belching that would give artificially high readings.[2]

A failure to wait 17 minutes after an "invalid sample" can invalidate the presumption.[3]

A delay in excess of 15 minutes is "prima facie unreasonable" and requires an explanation.[4]

  1. ↑ R v Kunsenhauser, 2006 ONCJ 382 (CanLII), [2006] OJ No 4092 (C.J.), per Brophy J
  2. ↑ see R v Guichon, 2010 BCPC 335 (CanLII), per Bayliff J where the point was argued to partial success
  3. ↑ R v Nadesapillai, [2006] OJ No 3124 (O.C.J.)(*no CanLII links)
    R v Asim, 2008 ONCJ 345 (CanLII), [2008] OJ No 3075 (O.C.J.), per Robertson J
    R v Kirby, [2009] OJ No 5796 (O.C.J.)(*no CanLII links)
  4. ↑ R v Dickinson, 2011 ABPC 12 (CanLII), per Semenuk J, at para 45

Samples Directly into Instrument

Under s.258(1)(c)(iii), the Crown must prove beyond a reasonable doubt that sample was provided "directly into an approved instrument."[1] This can be proven by inference as a matter of logic and common sense based on surrounding evidence.[2]

  1. ↑ R v Burns, [2001] OJ No 1050 (ONSC)(*no CanLII links)
  2. ↑ R v Triantos, [1994] OJ No 803(*no CanLII links)

Taken by Qualified Technician

Section 254(3)(1)(a) requires that the "qualified technician" have an opinion that the samples properly administered and were sufficient for "a proper analysis" of the alcohol concentration.

Failure to operate the machine in compliance with the manual may raise doubt as to the reasonable belief that the machine results are accurate.[1] However, it is not necessary that the operator strictly follow the operating manual where the officer's training experience and belief go beyond what is in the manual.[2]

Proof of "qualified technician" for purposes under s. 258(1)(c) can be done in one of four ways:[3]

  1. by relying on the special rule of evidence prescribed in the equivalent of s. 258(1)(g);
  2. by calling the Attorney General or his deputy, which, of course, is not practicable;
  3. by relying on s. 22(1) of the Canada Evidence Act, RSC 1985, c C-5, and filing a copy of the official Gazette or a copy of the appointment or certified copy of the appointment; or
  4. by relying on certain presumptions of law and rules of evidence developed by the common law including the maxim omnia praesumuntur rite esse acta.
"qualified technician"
Definition

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. (technicien qualifié)

[omitted (2), (2.1), (3), (3.1), (3.2), (3.3), (3.4), (3.5), (3.6), (4), (5) and (6)]

– CCC (CanLII), (DOJ)

"presumptions of law"

It is available to prove the person was a qualified technician by showing "that the man in question had acted in the requisite capacity."[4]

  1. ↑ R v Nadesapillai, [2006] OJ No 3124 (O.C.J.)(*no CanLII links)
  2. ↑ R v Smith, 2012 ONSC 4492 (CanLII), per Wein J, at para 24
  3. ↑ R v Lange, 2016 SKCA 70 (CanLII), per Whitmore JA
    R v Adams, 1986 CanLII 3266 (SK CA), 30 CCC (3d) 469, per Bayda CJ
  4. ↑ Adams, supra, at para 3 citing Cross on Evidence (4th ed. 1974), p. 112

Analysis by Approved Instrument

Under s. 258 (1)(c)(iv), “an analysis of [a] sample was made by means of an approved instrument operated by a qualified technician” is a necessary element to establish “conclusive proof” of the BAC level at the time of operation.

The test has both a subjective and an objective component. The officer must have an honest belief which is demonstrated and the belief must be objectively reasonable.

Factors that go to whether the officer knew that the test was reliable include the familiarity of the effect and measure of the temperature at the time the test was taken.[1]

The procedure for approving a device is set by the Attorney General of Canada. The Canadian Society of Forensic Sciences' Alcohol Test Committee vets the device for approval. The standards of the committee are published in the Recommended Standards and Procedures of the Canadian Society of Forensic Alcohol Test Committee, Can. Soc. Forensic Sci. J. Vol 46. No 1 (2013) pp. 1-3 [2]

For details on the test procedure see: R v Moriaux, 2012 MBPC 20 (CanLII), 278 Man R (2d) 43, per Harapiak J, at paras 19 to 39

Approved Breath Analysis Instruments

The list of approved devices are found in SI/85-201 Approved Breath Analysis Instruments Order:

Approved Instruments

2 The following instruments, each being 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, are hereby approved as suitable for the purposes of section 258 of the Criminal Code:

(a) to (c) [Repealed, SOR/2012-237, s. 1]
(d) to (g) [Repealed, SOR/2013-107, s. 1]
(h) Intoxilyzer ® 5000 C;
(i) [Repealed, SOR/2012-237, s. 1]
(j) [Repealed, SOR/2013-107, s. 1]
(k) BAC Datamaster C;
(l) Alco-Sensor IV-RBT IV;
(m) [Repealed, SOR/2013-107, s. 1]
(n) Alco-Sensor IV/RBT IV-K;
(o) Alcotest 7110 MKIII Dual C;
(p) Intoxilyzer® 8000 C;
(q) DataMaster DMT-C; and
(r) Intox EC/IR II.

SI/92-105, s. 2; SI/92-167, s. 1; SI/93-61, s. 1; SI/93-175, s. 1; SOR/94-422, s. 1; SOR/94-572, s. 1; SOR/95-312, s. 1; SOR/2000-200, s. 1; SOR/2002-99, s. 1; SOR/2007-197, s. 1; SOR/2008-106, s. 1; SOR/2009-205, s. 1; SOR/2012-237, s. 1; SOR/2013-107, s. 1.

– ABAIO

Functioning Device

It is not necessary to prove beyond a reasonable doubt that the device is working properly. [3]

Description of the Device

The officer is not required to testify to the exact model of the device. And failure to do so does not undermine the testimony. The important part is that they believe the device was an "approved" one.[4]

A described device or instrument is not fatal so long as it is believed by the officer that it is an approved screening device.[5]

Inconsistencies in the evidence of naming the device a "Intoxilizer 8000C" and "Intoxilizer 8000", of which only one of them is approved, may have the effect of raising doubt on the element.[6]

  1. ↑ R v Gill, 2011 BCPC 355 (CanLII), per Howard J, at paras 17 to 19
  2. ↑ R v Sutton, 2013 ABPC 308 (CanLII), 576 AR 14, per Henderson J , at para 15
  3. ↑ R v D'Alfonso, 2012 BCSC 1051 (CanLII), per N Brown J
  4. ↑ R v Gundy, 2008 ONCA 284 (CanLII), 231 CCC (3d) 26, per Rosenberg JA, at para 50
  5. ↑ Gundy, ibid.
  6. ↑ R v Almeida, 2012 ONCJ 360 (CanLII), per Duncan J, at paras 11 to 13

Where Presumption Does Not Apply

Where the presumption under s. 258(1)(c) does not apply, the crown needs to prove the BAC at the time of the offence by inference. This generally requires the calling of an expert witness who can testify as to the BAC level at the time of the offence given the reading and the timing of the reading of the breath sample.

A toxicologist report will commonly rely upon the four assumptions[1]

  1. no "bolus drinking" (rapid drinking of large amount of alcohol shortly before incident);
  2. no consumption of alcohol between the incident and the breath test;
  3. an "elimination rate" of 10 to 20 milligrams of alcohol in 100 millilitres of blood per hour; and
  4. a 2 hour "plateau" after drinking where the rate of elimination does not change.

Assumption of the elimination rate and plateau do not need case specific evidence to rely upon. This can be taken as judicial notice. However, the assumption against bolus drinking and post-incident drinking require evidence.[2]

  1. ↑ R v Paszczenko, 2010 ONCA 615 (CanLII), [2010] OJ No 3974, per Blair JA
  2. ↑ Paszczenko, ibid.
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