Proof of Blood Alcohol Levels (Until December 13, 2018)

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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.

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. 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.

A breath technician is not permitted to compel a suspect to stand on the scale to disclose their weight for the purposes of calculating blood alcohol level.

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

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.

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; 2018, c. 21, s. 7.

– CCC

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

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

Approved Container

Definitions

254 (1) In this section and sections 254.1 to 258.1,
"approved container" means

(a) in respect of breath samples, a container of a kind that is designed to receive a sample of the breath of a person for analysis and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada, and

(b) in respect of blood samples, a container of a kind that is designed to receive a sample of the blood of a person for analysis and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada; (contenant approuvé)

...
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

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The Order Approving Blood Sample Containers, SOR/2005-37 was enacted under the definition of "approved containers" found in s. 254(1), states:

Approved Containers

1 The following containers, being containers of a kind that is designed to receive a sample of blood of a person for analysis, are hereby approved as suitable, in respect of blood samples, for the purposes of section 258 of the Criminal Code:

(a) Vacutainer® XF947;

(b) BD Vacutainer™ 367001;

(c) Vacutainer® 367001;

(d) Tri-Tech Inc. TUG10;

(e) BD Vacutainer® REF 367001; and

(f) TRITECHFORENSICS TUG10.

SOR/2010-64, s. 1; SOR/2012-60, s. 1.

– OABSC

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). Thus, the presumption only applies where the evidence of readings are admitted through the tendering of the Certificate of the qualified technician.

The presumption means forgoing the need for the testimony of the breath technician to testify to validate the certificate. 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."

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

"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

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"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

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Rebuttal of Presumption

To rebut the presumption of accuracy the defence must raise a reasonable doubt that:

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".

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.

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)
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.

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

"analyst"
Section 254 defines "analyst", used in s. 258(d), (e), (f), and (i), as:

Definitions

254 (1) In this section and sections 254.1 to 258.1,
analyst means a person designated by the Attorney General as an analyst for the purposes of section 258; (analyste)
...

– CCC

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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

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

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."

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

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. Merely glancing at the documents is not enough to ensure it was an exact reproduction. However, word for word comparison is not necessary either. There is suggestion that service of a carbon copy can be considered a duplicate and so may not need review. Photocopies are generally sufficient. However, they must be legible to be valid.

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

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. However, a separate line of cases suggests that the accused must have personal possession for a sufficient period of time.

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, The absence of prejudice may not warrant invalidating the certificate.

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

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 done merely by inference. The evidence can come from someone other than the technician.

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

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

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.

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

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

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.

This type of evidence traditionally came in the following forms:

• 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.

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.

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

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.

It is not necessary for the accused to prove:

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. Now such evidence is specifically inadmissible where the presumption of identity is being relied upon.

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.

Bolus Drinking

Bolus drinking is the consumption of a significant amount of alcohol just prior driving. It is considered a relatively rare occurrence. The Crown must disprove the possibility of bolus drinking. This is usually done by common sense inferences. 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.

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.

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

"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.

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

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 breathalyzer readings. 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.

Blood / Urine tests

A blood sample can be obtained by a) a demand under s. 254(3)(a)(ii), 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).

258...

(d) if a sample of the accused’s blood has been taken under subsection 254(3) or section 256 or with the accused’s consent and if

(i) at the time the sample was taken, the person taking the sample took an additional sample of the blood of the accused and one of the samples was retained to permit an analysis of it to be made by or on behalf of the accused and, in the case where the accused makes a request within six months from the taking of the samples, one of the samples was ordered to be released under subsection (4),

(ii) both samples referred to in subparagraph (i) were taken as soon as practicable and in any event not later than two hours after the time when the offence was alleged to have been committed,

(iii) both samples referred to in subparagraph (i) were taken by a qualified medical practitioner or a qualified technician under the direction of a qualified medical practitioner,

(iv) both samples referred to in subparagraph (i) were received from the accused directly into, or placed directly into, approved containers that were subsequently sealed, and

(v) an analysis was made by an analyst of at least one of the samples,

evidence of the result of the analysis is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the samples were taken and at the time when the offence was alleged to have been committed was the concentration determined by the analysis or, if more than one sample was analyzed and 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 analysis was performed improperly, that the improper performance 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;

(d.01) for greater certainty, evidence tending to show that an approved instrument was malfunctioning or was operated improperly, or that an analysis of a sample of the accused’s blood was performed improperly, does not include evidence of

(i) the amount of alcohol that the accused consumed,

(ii) the rate at which the alcohol that the accused consumed would have been absorbed and eliminated by the accused’s body, or

(iii) a calculation based on that evidence of what the concentration of alcohol in the accused’s blood would have been at the time when the offence was alleged to have been committed;

(d.1) ...

– CCC

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

Procedure

The defence must raise an issue with the admissibility of the analysis results during trial for it to be rendered inadmissible. 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. 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.

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.

Admission of Certificates

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),...

(e) a certificate of an analyst stating that the analyst has made an analysis of a sample of the blood, urine, breath or other bodily substance of the accused and stating the result of that analysis 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;

(f) a certificate of an analyst stating that the analyst has made an analysis of a sample of an alcohol standard that is identified in the certificate and intended for use with an approved instrument and that the sample of the standard analyzed by the analyst was found to be suitable for use with an approved instrument, is evidence that the alcohol standard so identified is suitable for use with an approved instrument without proof of the signature or the official character of the person appearing to have signed the certificate;

(f.1) the document 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 the analysis of a sample of the accused’s breath is evidence of the facts alleged in the document without proof of the signature or official character of the person appearing to have signed it;

...

– CCC

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See Also

• Breath Sample Demand

External Link

• BAC DataMaster Basic Operator Guide