L was charged with operating a vehicle with a blood alcohol level over the legal limit. At trial, she argued that the new provisions of the Criminal Code with respect to breathalyzer test results are unconstitutional. The trial judge found that the statutory amendments did not bar L from presenting a Carter defence to rebut the presumption of accuracy. In light of the evidence, he concluded that L’s testimony about her alcohol consumption was not sufficiently serious or probative to raise a reasonable doubt. Finding that the qualified technician’s explanations were sufficient and that the presumptions established in s. 258(1)(c) and s. 258(1)(d.1) of the Criminal Code applied, he convicted L. The trial judge upheld in part the constitutionality of the new Criminal Code provisions.
Held (Rothstein and Cromwell JJ. dissenting in part): The appeal should be allowed in part. Sections 258(1)(c), 258(1)(d.01) and 258(1)(d.1) of the Criminal Code do not infringe s. 7 and s. 11(c) of the Canadian Charter of Rights and Freedoms, but do infringe s. 11(d). Sections 258(1)(d.01) and 258(1)(d.1), and s. 258(1)(c) after severance of the second and third requirements for rebutting the presumptions, are justified under s. 1 of the Charter.
Per McLachlin C.J. and LeBel, Deschamps, Fish and Abella JJ.:
A statutory presumption violates the right to be presumed innocent if its effect is that an accused person can be convicted even though the trier of fact has a reasonable doubt.
The expert evidence filed in this case reveals that the possibility of an instrument malfunctioning or being used improperly when breath samples are taken is not merely speculative, but is very real. The Alcohol Test Committee of the Canadian Society of Forensic Science has made a series of recommendations concerning the procedures to be followed by the professionals who operate the instruments and verify that they are properly maintained. These recommendations shed light on the circumstances that might explain how an instrument malfunctioned or was used improperly. However, Parliament did not adopt the Committee’s recommendations, and the prosecution referred to no alternative mechanisms that would enable a court to find that the instruments are generally maintained and operated properly or that the rate of failure attributable to improper maintenance or operation is insignificant. The trier of fact could therefore entertain a reasonable doubt about the validity of the test results, since he or she will not have shown why they can be relied on in the case of the accused who is on trial.
But a judge who entertains such a doubt will nevertheless remain bound by the presumptions of accuracy and identity of s. 258(1)(c) of the Criminal Code and will be required to convict the accused unless the accused rebuts those presumptions in accordance with the requirements of that provision. In view of the mechanism for applying the statutory presumptions established in s. 258(1)(c), ss. 258(1)(c) and 258(1)(d.01) infringe s. 11(d) of the Charter.
Whether a statutory presumption can be justified under s. 1 of the Charter depends on several factors, including the importance of the legislative objective, how difficult it would be for the prosecution to prove the substituted fact beyond a reasonable doubt, whether it is possible, and how easy it is, for the accused to rebut the presumption, and, as can be seen from this case, scientific advances. The objective of the amendments — to give breathalyzer test results a weight consistent with their scientific value — is pressing and substantial. Section 258(1)(c) of the Criminal Code contains three separate and cumulative new requirements that the accused must satisfy to rebut the presumptions of accuracy and identity. These requirements must be considered separately for the remainder of the justification analysis.
the accused must raise a doubt that the instrument was functioning and was operated properly. This requirement is rationally connected with Parliament’s objective. According to the scientific evidence on which Parliament relied, if the instrument functions properly and all the relevant procedures are followed, the results should be reliable. In addition, the measure violates the right to be presumed innocent as little as reasonably possible. The reliability of breathalyzer tests has been recognized by the scientific and legal communities. Moreover, the new provisions do not make it impossible to disprove the test results, but require that evidence tending to cast doubt on the reliability of the results relate directly to possible deficiencies in the maintenance of the instruments or in the test process. Finally, the effects of this limit on the right to be presumed innocent are proportional to Parliament’s objective. The objective of the first requirement of s. 258(1)(c), as clarified by s. 258(1)(d.01), is to confirm the scientific value and ensure the primacy of breathalyzer test results. This statutory amendment was a response to the serious disconnect that existed in the fact that the Carter defence had a high success rate despite the recognized scientific reliability of the results. Furthermore, the scheme adopted for breathalyzer tests includes certain guarantees that place limits on police action and protect the presumption of innocence.
s. 258(1)(c) requires evidence tending to show that the malfunction or improper operation of the instrument resulted in a reading according to which the blood alcohol level of the accused exceeded .08. This requirement constitutes a serious infringement of the right to be presumed innocent that cannot be justified in a democratic society. The requirement that the accused raise a doubt that his or her blood alcohol level in fact exceeded .08 constitutes an excessive burden in the context of a statutory scheme under which the evidence must relate directly to the functioning or operation of the instrument.
requirement of s. 258(1)(c) cannot be justified under s. 1 of the Charter. There is no rational connection between the objective of the new legislative measures and the requirement of adducing evidence to raise a doubt that the blood alcohol level of the accused in fact exceeded .08. This requirement is in addition to the requirement of showing that the instrument malfunctioned or was operated improperly. If the accused has already identified a defect that could cast doubt on the reliability of the results, it is difficult to justify requiring the court to nevertheless accept that the results have probative value if the accused has produced no evidence regarding his or her blood alcohol level.
It was open to Parliament to exclude, in s. 258(1)(d.01), the production of evidence of the alcohol consumption of the accused that tends to show that the instrument was malfunctioning or was operated improperly, and to provide that such evidence is legally insufficient to cast doubt on the reliability of the test results. This exclusion does not infringe the rights protected by s. 7, nor does it render the rebuttal of the presumptions established in s. 258(1)(c) illusory.
Section 258(1)(d.1) of the Criminal Code establishes a second presumption of identity according to which a blood alcohol level over .08 at the time of the analysis is presumed to be the same as the blood alcohol level of the accused at the time of the alleged offence. Since s. 258(1)(d.1) exempts the prosecution from having to establish the guilt of the accused beyond a reasonable doubt before the accused must respond, it infringes the right to be presumed innocent. To rebut this second presumption of identity, evidence to the contrary adduced by the accused must tend to show two facts: (1) the consumption of alcohol of the accused was consistent with a blood alcohol level that did not exceed .08 at the time when the offence was alleged to have been committed; and (2) the consumption of alcohol of the accused was consistent with the test results. The objective of these requirements is pressing and substantial. A rational connection can easily be established between each of these requirements and the requirement’s legislative objective. They also satisfy the minimal impairment test. Section 258(1)(d.1) strikes a fair balance between collective rights and individual rights, and is part of a broader legislative scheme designed to confirm the primacy of breathalyzer test results. It is a justified infringement of the right to be presumed innocent.
The presumption of identity established in s. 258(1)(d.1) is based on the usual behaviour of drivers, who do not generally drink a sufficient quantity of alcohol to alter the results either just before or just after being pulled over by the police. It is in fact the exceptional behaviour of the accused, not the statutory presumption in the prosecution’s favour under s. 258(1)(d.1), that makes it necessary for the accused to testify. The choice by the accused to testify in this regard flows from a decision that must be made whenever the Crown’s evidence is sufficient to support a conviction. Thus, the protection against self-incrimination guaranteed by s. 11(c) of the Charter is not infringed.
In this case, the trial judge erred in holding that L could rebut the presumption of accuracy of s. 258(1)(c) of the Criminal Code by presenting a Carter defence, but that error did not affect his conclusion, since, when all is said and done, he did not believe L. L’s conviction is therefore upheld.