Two decisions on Friday settle uncertainties that followed 2018 amendments to the Criminal Code
In two separate 8-1 decisions on Friday, the Supreme Court of Canada clarified what conditions the Crown needs to meet to rely on breath test results in a drunk driving case, concluding that a broader range of acceptable conditions aligns with Parliament’s intent to simplify and streamline impaired-driving cases.
The decisions shed light on amendments that Parliament made to the Criminal Code in 2018, which changed the rules that prosecutors have to follow to prove blood alcohol concentration in impaired operation offences. The changes allow prosecutors to rely on a person’s breath alcohol test results as “conclusive proof” of their blood alcohol concentration.
However, prosecutors must first prove beyond a reasonable doubt that the test results are reliable. This includes demonstrating that the breath machine passed a “system calibration test” conducted by a technician, indicating that it works properly. To pass that test, the calibration result must be within 10 percent of the target value of an alcohol standard certified by an analyst who is not the same person as the technician.
The high court noted that the 2018 amendments have been “the subject of significant judicial debate,” with trial and appellate courts divided on what precisely the Crown has to prove for courts to presume that an accused’s breath alcohol test results are accurate.
Before the amendments, the Criminal Code allowed the technician who conducted the system calibration test to provide evidence as to whether an alcohol standard was suitable for use. This evidence could then be used to help prove the accuracy of breath alcohol test results.
In one of its decisions issued Friday, the Supreme Court found that Parliament intended to preserve this scope of permitted evidence, so that technicians – and not only analysts – can prove that the alcohol standard installed in a breath test machine is suitable for use.
In the second decision, the high court found that while the Crown must reveal the target value of an alcohol standard that has been certified by an analyst, the Crown does not need to prove that target value to secure the court’s presumption that an accused’s breath alcohol test results are accurate.
Justices Malcolm Rowe and Mary Moreau jointly authored the majority opinions in the decisions. Justice Suzanne Côté dissented in both.
R. v. Rousselle
The first case can be traced back to 2019, when an RCMP officer arrested a man whom the officer believed was driving under the influence of alcohol. At the police station, Tony Rousselle provided two breath alcohol samples that indicated his blood alcohol concentration was over the legal limit. He was charged with drunk driving.
At trial, the Crown relied on a technician’s certificate to prove that Rousselle’s breath test had been conducted properly. However, because the Crown failed to prove that an analyst had certified the alcohol standard used in the system calibration check of the breath machine, the judge found Rousselle not guilty.
A summary conviction appeal judge with the Court of King’s Bench of New Brunswick overturned the decision and convicted Rousselle. The Court of Appeal of New Brunswick affirmed the conviction. Rousselle appealed to the SCC, requesting that the court clarify whether the Crown was required to use evidence from the analyst instead of the technician.
The SCC sided with the Crown and dismissed the appeal. The 2018 amendments to the Criminal Code do not “preclude the Crown from proving that the alcohol standard used in the system calibration check is ‘certified by an analyst’ through the evidence of the qualified technician, either by certificate or viva voce testimony,” the majority said, adding that the Crown is not required to produce evidence from the analyst at all.
The majority found that despite “competing lines of authorities,” the Crown has historically been allowed to rely on the technician, rather than the analyst, to prove that the alcohol standard was suitable for use. While such evidence “is presumptively inadmissible hearsay, previous iterations of the evidentiary scheme up to the [2018 Criminal Code amendments] allowed for its use to prove the preconditions to the presumption of accuracy,” the majority said.
The majority added that “Parliament has sought to address the challenges posed by large numbers of drinking and driving offences by taking steps to ‘simplify and streamline the trial process.’
“This includes enacting and amending provisions of the evidentiary scheme over the years.”
In her dissent, Côté said she would have allowed the appeal and acquitted Rousselle. In her view, the 2018 amendments to the Criminal Code now require the Crown to produce evidence directly from an analyst, rather than a technician, that the analyst had certified the alcohol standard.
“In order for the Crown to prove that the alcohol standard has been certified by an analyst, and therefore to have the benefit of the presumption of accuracy, a certificate or viva voce evidence is required from the analyst,” the justice wrote. “A qualified technician cannot attest to what is not within his or her knowledge; this amounts to inadmissible hearsay.”
Referencing the majority’s admission that a technician’s statement in a certificate that the alcohol standard was certified by an analyst counts as double hearsay, Côté raised concerns that “the majority’s approach is likely to raise constitutional issues relating to the admission of double hearsay evidence.”
R. v. Larocque
The second case similarly involved a man who was pulled over and arrested by a peace officer. At the police station, Stéphane Larocque provided two breath samples and was charged with drunk driving.
At trial, the Crown produced three certificates: one from a technician and two from analysts. The technician both testified and said in his certificate that he performed a system calibration check on the breath machine used by Larocque, and the breath machine passed the test. The two analysts’ certificates said the alcohol standard used was suitable.
The trial judge found him guilty. A summary conviction appeal judge and the Court of Appeal of New Brunswick upheld his conviction. Larocque appealed to the SCC, arguing, like Rousselle, that only an analyst can demonstrate that they certified the alcohol standard used in a system calibration check.
Larocque also argued that the 2018 amendments to the Criminal Code require the Crown to prove the target value of an alcohol standard that has been certified by an analyst.
The high court majority rejected these arguments. The majority explained that the target value is the set number against which the accused can compare the result of a system calibration check. Having both numbers is required to understand whether the system calibration check results are within 10 percent of the target value.
The majority rejected the Court of Appeal’s ruling that the Crown must disclose the results of system calibration checks, but does not have to disclose any information about the target value of the alcohol standard that was used.
“In our view, the target value at the time of testing is inherently tied to the results of the system calibration check, and must be disclosed in addition to those results,” the majority said.
However, the majority disagreed with Larocque’s argument that the Crown must prove the target value at the time of testing to establish that an accused’s breath alcohol test results are accurate. Proving the target value would be “an additional technical requirement that is not in line with Parliament’s objective to simplify and streamline 80 and over prosecutions,” the majority said.
In Côté’s dissent, the justice argued that the target value should be both disclosed and proven to the accused.
Writing that “disclosure alone is insufficient and appropriate introduction into evidence is required,” the justice added, “To hold otherwise would be to condone convictions entered without giving full effect to the presumption of innocence and without an accused having had the opportunity to mount a full answer and defence.”
In a joint statement, counsel for Rousselle and Larocque stated that while they were disappointed with the results of Friday’s decisions, the high court has brought clarity to the Crown’s production and disclosure obligations.
“The split court tells us that this debate is not yet closed, and we look forward to seeing whether Parliament heeds the comments of the dissenting justice regarding the codification of a double hearsay exception,” said Emily Cochrane of the Burke Law Group, Marc Guignard of Guignard Gauvin, and sole practitioner Mireille Saulnier.
“As the constitutionality of the impaired driving scheme was not argued in either Rousselle or Larocque, we suspect that such an argument regarding these sections will come back before the Supreme Court in due course,” the lawyers added.
A spokesperson for the Public Prosecution Service of New Brunswick said they are reviewing the decision and declined to comment.
