Supreme Court


Breathalyzer

PRESUMPTION
New provisions created possibility trier of fact could have reasonable doubt but be bound to convict

Accused charged with over 80. Accused challenged new provisions in Criminal Code that restricted defence’s ability to contest reliability of breathalyzer results. Trial judge found that new provisions did not preclude defence from calling evidence of her alcohol consumption to rebut breathalyzer results. Trial judge rejected accused’s evidence and convicted her. Appeal allowed in part. Statutory presumption violates right to be presumed innocent if accused could be convicted even if trier of fact had reasonable doubt. New provisions created possibility that trier of fact could have reasonable doubt that instrument malfunctioned but be bound to convict. Section 258(1)(c) and (d.01) infringed s. 11(d) of Charter. Objective of impugned provisions to give breathalyzer test results weight consistent with scientific value was pressing and substantial. Provisions included three separate and cumulative new requirements accused must satisfy to rebut presumptions of accuracy and identity. First, accused must raise doubt that breathalyzer instrument functioning and operated properly. This requirement was justified pursuant to s. 1. Second requirement for evidence that determination that blood alcohol level exceeded legal limit resulted from malfunction or improper operation of instrument imposed excessive burden on accused and was not justified. Third requirement not justified as no rational connection between objective and requirement of adducing evidence that blood alcohol level of accused would not have exceeded legal limit at time when offence allegedly committed. Pursuant to s. 258(1)(d.1), presumption of identity of test results showing that blood alcohol level of accused exceeded legal limit with his or her actual blood alcohol level at time of alleged offence could be rebutted only if evidence adduced by accused showed his or her consumption of alcohol consistent not only with blood alcohol level under legal limit at time of offence, but also with test results. Accused would only be required to testify where defence alleged very unusual alcohol consumption pattern. Trial judge erred by permitting accused to rebut presumption of accuracy by presenting evidence to contrary defence but error did not affect conviction as he did not believe accused.

R. v. St-Onge Lamoureux (Nov. 2, 2012, S.C.C., McLachlin C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein and Cromwell JJ., File No. 33970) Decision at 95 W.C.B. (2d) 45 was reversed. 104 W.C.B. (2d) 825.

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