Not enough to argue that procedural defect in issue was likely to compromise reliability

Supreme court | Criminal Law | Offences against the person and reputation | Driving/care or control with excessive alcohol [over 80]

Period during which accused is being observed. Accused was arrested and brought to police station where breathalyzer was prepared by officer B. Accused was observed by officer C while he was talking to his lawyer over phone. Results of breathalyzer tests were over the legal limit and accused was charged with operating motor vehicle with blood alcohol level exceeding 80 mg of alcohol in 100 ml of blood. At trial, officer C was not called to testify and officer B, who was called as witness, was unable to state whether officer C had actually observed accused throughout whole procedure. Further, it was showed that officer C had observed accused through window. Trial judge held that procedure had not been followed properly and acquitted accused and Crown appealed. Superior Court judge set aside acquittal and ordered new trial and accused appealed. Majority of Court of Appeal set aside Superior Court judge’s judgment and restored the verdict of acquittal and Crown appealed. Appeal allowed. Where accused is charged with operating motor vehicle with blood alcohol level exceeding 80 mg of alcohol in 100 ml of blood, presumptions set out in s. 258(1)(c) of Criminal Code apply. To rebut those presumptions, accused must adduce evidence tending to show that malfunctioning or improper operation of approved instrument casts doubt on reliability of the results. In the instant case, evidence adduced by accused was purely speculative. It was not enough to argue that procedural defect in issue was likely to compromise reliability. Moreover, evidence showed that both test results were consistent. Therefore, verdict of acquittal should be set aside and new trial should be ordered.

R. c. Cyr-Langlois (2018), 2018 CarswellQue 10901, 2018 CarswellQue 10902, 2018 SCC 54, 2018 CSC 54, Wagner C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); reasons in full (2018), 2018 CarswellQue 8942, 2018 CarswellQue 8943, Wagner C.J.C., Abella J., Karakatsanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.).

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