Admission of Breath or Blood Sample

This page was last substantively updated or reviewed June 2021. (Rev. # 95671)

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General Principles

Evidentiary Matters

Breath samples

320.31 (1) If samples of a person’s breath have been received into an approved instrument operated by a qualified technician, the results of the analyses of the samples are conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made if the results of the analyses are the same — or, if the results of the analyses are different, the lowest of the results is conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made — if

(a) before each sample was taken, the qualified technician conducted a system blank test the result of which is not more than 10 mg of alcohol in 100 mL of blood and a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst;

(b) there was an interval of at least 15 minutes between the times when the samples were taken; and

(c) the results of the analyses, rounded down to the nearest multiple of 10 mg, did not differ by more than 20 mg of alcohol in 100 mL of blood.

[omitted (2), (3), (4), (5), (6), (7), (9) and (10)]
2018, c. 21, s. 15.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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The requirements of s. 320.31(1)(a) must be proven through tendering the Certificate of Analysis or through viva voce testimony of the analyst.

320.31
[omitted (1)]

Blood samples — concentration when sample taken

(2) The result of an analysis made by an analyst of a sample of a person’s blood is proof of their blood alcohol concentration or their blood drug concentration, as the case may be, at the time when the sample was taken in the absence of evidence tending to show that the analysis was performed improperly.

Evidence not included

(3) Evidence of the following does not constitute evidence tending to show that an analysis of a sample of a person’s blood was performed improperly:

(a) the amount of alcohol or a drug that they consumed;

(b) the rate at which the alcohol or the drug would have been absorbed or eliminated by their body; or

(c) a calculation based on the evidence referred to in paragraphs (a) [proof by inference from breath or blood samples – evidence not included – consumption] and (b) [proof by inference from breath or blood samples – evidence not included – absorption rate] of what their blood alcohol concentration or blood drug concentration would have been at the time the sample was taken.

Presumption — blood alcohol concentration

(4) For the purpose of paragraphs 320.14(1)(b) [impaired operation – within 2 hrs BAC exceeding 80] and (d) [impaired operation – within 2 hrs BAC and drugs exceeding regulations], if the first of the samples of breath was taken, or the sample of blood was taken, more than two hours after the person ceased to operate the conveyance and the person’s blood alcohol concentration was equal to or exceeded 20 mg of alcohol in 100 mL of blood, the person’s blood alcohol concentration within those two hours is conclusively presumed to be the concentration established in accordance with subsection (1) [proof by inference from breath or blood samples] or (2) [proof by inference of blood samples – concentration when sample taken], as the case may be, plus an additional 5 mg of alcohol in 100 mL of blood for every interval of 30 minutes in excess of those two hours.

Admissibility of evaluating officer’s opinion

(5) An evaluating officer’s opinion relating to the impairment, by a type of drug that they identified, or by a combination of alcohol and that type of drug, of a person’s ability to operate a conveyance is admissible in evidence without qualifying the evaluating officer as an expert.

Presumption — drug

(6) If the analysis of a sample provided under subsection 320.28(4) [samples of bodily substances] demonstrates that the person has a drug in their body that is of a type that the evaluating officer has identified as impairing the person’s ability to operate a conveyance, that drug — or, if the person has also consumed alcohol, the combination of alcohol and that drug — is presumed, in the absence of evidence to the contrary, to be the drug, or the combination of alcohol and that drug, that was present in the person’s body at the time when the person operated the conveyance and, on proof of the person’s impairment, to have been the cause of that impairment.

Admissibility of result of analysis

(7) The result of an analysis of a sample of a person’s breath, blood, urine, sweat or other bodily substance that they were not required to provide under this Part [Pt. VIII – Offences Against the Person and Reputation (ss. 214 to 320.1)] may be admitted in evidence even if the person was not warned before they provided the sample that they were not required to do so or that the result of the analysis of the sample might be used in evidence.

Evidence of failure to provide sample

(8) Unless a person is required to provide a sample of a bodily substance under this Part [Pt. VIII – Offences Against the Person and Reputation (ss. 214 to 320.1)], evidence that they failed or refused to provide a sample for analysis or that a sample was not taken is not admissible and the failure, refusal or fact that a sample was not taken shall not be the subject of comment by any person in any proceedings under this Part [Pt. VIII – Offences Against the Person and Reputation (ss. 214 to 320.1)].

Admissibility of statement

(9) A statement made by a person to a peace officer, including a statement compelled under a provincial Act, is admissible in evidence for the purpose of justifying a demand made under section 320.27 [testing for presence of alcohol or drug] or 320.28 [sample and evalution of breath and/or blood].

Evidence of failure to comply with demand

(10) In any proceedings in respect of an offence under section 320.14 [impaired operation, including causing bodily harm or death], evidence that the accused, without reasonable excuse, failed or refused to comply with a demand made under section 320.27 [testing for presence of alcohol or drug] or 320.28 [sample and evalution of breath and/or blood] is admissible and the court may draw an inference adverse to the accused from that evidence.

2018, c. 21, s. 15.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Certificate of Analysis

Certificates

320.32 (1) A certificate of an analyst, qualified medical practitioner or qualified technician made under this Part [Pt. VIII – Offences Against the Person and Reputation (ss. 214 to 320.1)] is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person who signed the certificate.

Notice of intention to produce certificate

(2) No certificate shall be received in evidence unless the party intending to produce it has, before the trial, given to the other party reasonable notice of their intention to produce it and a copy of the certificate.

Attendance and cross-examination

(3) A party against whom the certificate is produced may apply to the court for an order requiring the attendance of the person who signed the certificate for the purposes of cross-examination.

Form and content of application

(4) The application shall be made in writing and set out the likely relevance of the proposed cross-examination with respect to the facts alleged in the certificate. A copy of the application shall be given to the prosecutor at least 30 days before the day on which the application is to be heard.

Time of hearing

(5) The hearing of the application shall be held at least 30 days before the day on which the trial is to be held.

Certificate admissible in evidence

(6) In proceedings in respect of an offence under subsection 320.18(1) [operation while prohibited], the following certificates are evidence of the facts alleged in them without proof of the signature or official character of the person who signed them:

(a) a certificate setting out with reasonable particularity that the person named in it is prohibited from operating a motor vehicle in the province specified in the certificate, signed by the person who is responsible for the registration of motor vehicles in that province or any person authorized by the responsible person to sign it; and

(b) a certificate setting out with reasonable particularity that the person named in it is prohibited from operating a conveyance other than a motor vehicle, signed by the Minister of Transport or any person authorized by him or her to sign it.

Onus

(7) If it is proved that a prohibition under paragraph 320.18(1)(b) [operation while prohibited – under non-CC prohibition] has been imposed on a person and that notice of the prohibition has been mailed to them at their last known address, that person is, beginning on the tenth day after the day on which the notice is mailed, in the absence of evidence to the contrary, presumed to have received the notice and to have knowledge of the prohibition, of the date of its commencement and of its duration.

2018, c. 21, s. 15.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Omissions and Typos in Certificate

Courts should take a "pragmatic" approach to certificates with omissions and typos as long as the accused is not prejudiced. Where oral evidence identifies the typographical error, the court can accept it and correct it.

"copy of the certificate"

It is not necessary that the officer serving the copy on the accused has made a side-by-side comparison of the copy and original. A mechanically made copy, such as through carbon paper, is a prima facie proof that the copy was a true copy and no comparison is necessary.

Printouts

Printout from approved instrument

320.33 A document that is printed out from an approved instrument and signed by a qualified technician who certifies it to be the printout produced by the approved instrument when it made an analysis of a sample of a person’s breath is evidence of the facts alleged in the document without proof of the signature or official character of the person who signed it.

2018, c. 21, s. 15.

– CCC (CanLII), (DOJ)

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Sample Test Disclosure

Disclosure of information

320.34 (1) In proceedings in respect of an offence under section 320.14 [impaired operation], the prosecutor shall disclose to the accused, with respect to any samples of breath that the accused provided under section 320.28 [sample and evalution of breath and/or blood], information sufficient to determine whether the conditions set out in paragraphs 320.31(1)(a) to (c) [proof by inference from breath or blood samples – prerequisites] have been met, namely:

(a) the results of the system blank tests;

(b) the results of the system calibration checks;

(c) any error or exception messages produced by the approved instrument at the time the samples were taken;

(d) the results of the analysis of the accused’s breath samples; and

(e) a certificate of an analyst stating that the sample of an alcohol standard that is identified in the certificate is suitable for use with an approved instrument.

Application for further disclosure

(2) The accused may apply to the court for a hearing to determine whether further information should be disclosed.

Form and content of application

(3) The application shall be in writing and set out detailed particulars of the information that the accused seeks to have disclosed and the likely relevance of that information to determining whether the approved instrument was in proper working order. A copy of the application shall be given to the prosecutor at least 30 days before the day on which the application is to be heard.

Time of hearing

(4) The hearing of the application shall be held at least 30 days before the day on which the trial is to be held.

For greater certainty

(5) For greater certainty, nothing in this section limits the disclosure to which the accused may otherwise be entitled.

2018, c. 21, s. 15.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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Presumption of Operation

Presumption of operation

320.35 In proceedings in respect of an offence under section 320.14 [impaired operation, including causing bodily harm or death] or 320.15 [refusal to provide a sample], if it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a conveyance, the accused is presumed to have been operating the conveyance unless they establish that they did not occupy that seat or position for the purpose of setting the conveyance in motion.

2018, c. 21, s. 15.
[annotation(s) added]

– CCC (CanLII), (DOJ)

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