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The Supreme Court of Canada recently decided that the mere improper operation of a breathalyzer was not sufficient to acquit a person accused of impaired driving.

The Facts

In 2012, the accused was stopped by two police officers while driving his vehicle. He was arrested and taken to the police station. After two breathalyzer tests, the accused was charged with operating a motor vehicle with a blood alcohol level exceeding 80 mg of alcohol in 100 ml of blood. However, the accused claimed that, at the police station, the qualified technician failed to observe him for a period of 15 or 20 minutes before administering each breathalyzer test, as required by procedure.

As a result, the accused argued that this was a breach of the duty to operate the breathalyzer properly and that it was sufficient to rebut the presumptions of accuracy and identity applicable to breathalyzer test results under s. 258(1)(c) of the Criminal Code. The accused stated that this breach should lead to his acquittal in the absence of additional evidence from the Crown.

The trial judge acquitted the accused, finding that, by not following the observation procedure, reasonable doubt had been raised about the reliability of the results. On appeal, the Superior Court set aside the judgment of acquittal and ordered a new trial. A majority of the Court of Appeal set aside the Superior Court’s judgment and restored the verdict of acquittal.

Issues

The appeal to the Supreme Court of Canada centred on the scope of the evidence that must be adduced to rebut the presumptions of accuracy and identity that are applicable to breathalyzer test results under the s. 258(1)(c) of the Criminal Code. 

The Decision

The court began by setting out the general rule regarding the presumptive accuracy of breathalyzer results:

“Where an accused is charged with operating a motor vehicle with a blood alcohol level exceeding 80 mg of alcohol in 100 ml of blood, once the Crown has established certain conditions, the burden shifts to the accused to raise a reasonable doubt about the reliability of the breathalyzer test results. If there is no evidence raising such a doubt, the results are presumed to be accurate, which is to say that the alcohol level in the breath sample is presumed to reflect the alcohol level in the accused’s blood at the time of testing, and that level is presumed to be identical to the alcohol level in the accused’s blood at the material time.”

In order to rebut the presumptions in s. 258(1)(c), an accused must adduce evidence tending to show that the malfunctioning or improper operation of the approved instrument casts doubt on the reliability of the results. The accused’s burden is discharged if the following conditions are met:

(i) the accused presents evidence relating directly to the malfunctioning or improper operation of the instrument, and

(ii) the accused establishes that this defect tends to cast doubt on the reliability of the results.

The court acknowledged that, in this case, the allegation was not that the breathalyzer malfunctioned, but rather that the improper operation of the instrument cast doubt on the reliability of the results. The court qualified such evidence as “purely theoretical” and stated:

“While it is not impossible that abstract evidence alone may sometimes meet the requirement of raising a reasonable doubt about the reliability of results, it is more likely that evidence that relates more concretely to the facts in issue will be required. This was the case here: without such evidence, the accused’s argument was in the realm of speculation and could not satisfy the reasonable doubt test […] As a result, I do not agree with the [accused]’s argument that it was enough in this case to show that the procedural defect in issue could, in theory, compromise reliability.”

The court said that it did not rule out the possibility that improper operation may be so serious or so closely connected with reliability that it would be sufficient to raise a reasonable doubt about the reliability of the results obtained. However, in this context, it found that the mere improper operation alleged did not in itself tend to show that the reliability of the results was in doubt; the minimum evidence required for this purpose was simply not presented.

The court declared that “beyond conjecture and speculation, the evidence showed nothing”. As a result, the court concluded that there was absolutely no evidence tending to show that the alleged defect cast doubt on the reliability of the results and the defect could not form the basis for a reasonable doubt. In addition, it stated that the acceptance of theoretical evidence based on speculation reflects a misinterpretation of the accused’s burden of proof, which is an error of law.

The court therefore restored the Superior Court’s decision setting aside the accused’s acquittal and ordering a new trial.

Get Advice

If you have been charged with a driving-related offence, including “over 80”, impaired driving, or refusal to provide a breath or blood sample, contact the team of criminal defence lawyers at Campbell Bader LLP in Mississauga. We have experience defending clients against all types of drunk driving and impaired driving due to drugs charges.  We have successfully defended clients against even the most serious charges and acquittal is always our goal. Contact us online or at 905-828-2247 to learn how we can help.