Canadian Criminal Law/Offences/Impaired Driving and Over 80/Breath Sample Evidence
- 1 General Principles
- 2 Presumption of Identity s. 258(1)(c)
- 3 Admission of Breath Test Results
- 4 Certificate of Analysis
- 5 "Evidence to the Contrary"
- 6 Blood / Urine tests
- 7 See also
As part of the offence of "Over 80" under s. 253(1)(b), the crown must prove the accused's Blood Alcohol Content (BAC) is over 0.08 per millilitres. The crown must also establish that this occurred while operating a motor vehicle.
Where a breath or blood sample was taken and complies with all the requirements of s. 258(1)(c) and 258(1)(d.1), the results are, with some exception, deemed conclusive as to the BAC while in operating the vehicle.
Presumption of Identity s. 258(1)(c)
Section 258(1)(c) creates a presumption that is known as the presumption of identity which is a short cut to establishing the driver's BAC at the time of the offence. If the Crown can satisfy the preconditions of this section, there is a presumption created that the "accused’s blood alcohol level at the time of the offence was the same as at the time of testing." However, if the presumption is not available, the crown must prove the accused's blood alcohol level at the time of the offence. This usually requires expert testimony of a toxicologist.
A crown is always permitted to rely both on the presumption and also call evidence of the technician in the same trial.
Section 258(1)(c) states:
- (c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if
- (i) [Not in force]
- (ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,
- (iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and
- (iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,
- evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed; [emphasis added]
(d.1) if samples of the accused’s breath or a sample of the accused’s blood have been taken as described in paragraph (c) or (d) under the conditions described in that paragraph and the results of the analyses show a concentration of alcohol in blood exceeding 80 mg of alcohol in 100 mL of blood, evidence of the results of the analyses is proof that the concentration of alcohol in the accused’s blood at the time when the offence was alleged to have been committed exceeded 80 mg of alcohol in 100 mL of blood, in the absence of evidence tending to show that the accused’s consumption of alcohol was consistent with both
- (i) a concentration of alcohol in the accused’s blood that did not exceed 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed, and
- (ii) the concentration of alcohol in the accused’s blood as determined under paragraph (c) or (d), as the case may be, at the time when the sample or samples were taken;
The requirements are summarized as:
- a demand was made under s. 254(3)
- each sample was made as soon as practicable after the time of the offence
- the first sample was "no later than two hours after [the time of the offence]"
- each sample is taken no less than 15 minutes apart
- each sample was received directly into an approved container or approved instrument
- the container or instrument was operated by a qualified technician.
- analysis of each sample was made by means of the approved machine operated by a qualified technician.
Where the requirements are satisfied, then the BAC level is made out. Much of the case law revolves around whether these elements are made out. If they are deficient in any way, then the presumption cannot be relied upon and it would be necessary for the Crown to present expert evidence on the disbursement of alcohol in the blood system over time to make the inference that the alcohol level was over 80 at the time of the offence.
- see R. v. MacConnell reflex, (1980), 54 C.C.C. (2d) 188 (Ont. C.A.))
R. v. Charette, 2009 ONCA 310 at para 4
see R. v. St. Pierre, 1995 CanLII 135 (SCC),  1 S.C.R. 791
- R. v. Charette, 2009 ONCA 310 at para 4
- see R v Grosse, 1996 CanLII 6643, 107 CCC (3d) 97 (ONCA)
- R. v. Smith, 2012 ONSC 4492 (CanLII)
Sample Taken As Soon as Practicable
Under s. 258(1)(c)(ii), proceedings in respect of an offence under s. 253, 254(5), 255(2) to (3.2) in which samples of breath are taken pursuant to a 254(3) demand each sample must be "taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time".
This creates a right to be subject to the demand within a time limit or else the accused rights will be violated.
Where a delay is prima facie unreasonable the crown must prove beyond a reasonable doubt that the delay does not violate s. 258(1)(c)(iii) in order to rely on the presumption of identity.
If the delay is explained satisfactorily, the presumption of identity can still be relied upon.
Essentially, the court asks whether the police have taken the sample reasonably promptly? This standard does not mean “as soon as possible”. 
It also does not require the Crown to explain every detail or every minute of delay. However, there should be an obligation "to demonstrate that – in all the circumstances – the breath samples were taken within a reasonably prompt time" This is necessary to afford meaningful appellate review of the Trial Judge’s decision.
Under s. 258(1)(c)(ii), the Crown must be prepared to demonstrate that in the circumstances were taken in a reasonable time, including by showing the way the police are organized and why the samples were prompt.
Where the peace officer reasonably believes that there is a risk to the security of the vehicle or its contents, a delay due to efforts to secure the vehicle will be a justifiable delay.
Delay due to the officer's regular duties, such as making notes, searching car, basic questioning, and adjusting handcuffs, is generally considered reasonable.
Delay due to controlling a difficult accused can be acceptable.
R. v. Vanderbruggen, 2006 CanLII 9039 at 12 to 16
See R. v. Phillips 1988 CanLII 198 (ON CA), (1988), 42 C.C.C. (3d) 150 (Ont. C.A.) at 156;
R. v. Ashby (1980), 57 C.C.C. (2d) 348 (Ont. C.A.) at 351;
R. v. Coverly, (1979), 50 C.C.C. (2d) 518 (Alta. C.A.) at 522
R. v. Letford 2000 CanLII 17024 (ON CA), (2000), 150 C.C.C. (3d) 225 (Ont. C.A.), at para. 17
See R. v. Payne (1990), 56 C.C.C. (3d) 548 (Ont. C.A.) at 552;
R. v. Carter, (1981), 59 C.C.C. (2d) 450 (Sask. C.A.) at 453;
R. v. Van Der Veen (1988), 44 C.C.C. (3d) 38 (Alta.C.A.) at 47;
R. v. Clarke,  O.J. No. 3065 (C.A.); and
R. v. Seed,  O.J. No. 4362, 1998 CanLII 5146 (ON CA) (C.A.) at 7 (In all the circumstances, did the police act "reasonably and expeditiously?")
- R. v. C.A.J., 2004 ABQB 838 at 27
- R v Carter,  SJ No 1337 (CA)
R v Altaseimer (1982) 1 CCC (3d) 7 (ONCA)
R v Payne, (1990), 56 C.C.C. (3d) 548 (Ont. C.A.) R v Squires 2002 CanLII 44982 (ON CA),  OJ No 2314
R. v. Letford 2000 CanLII 17024 (ON CA)
See R. v. Letford 2000 CanLII 17024 (ON CA), (2000), 150 C.C.C. (3d) 225 (Ont. C.A.), at para. 20
R. v. Cambrin 1982 CanLII 353 (BC CA), (1982), 1 C.C.C. (3d) 59 (B.C.C.A.) at 61-63
R. v. Vanderbruggen, 2006 CanLII 9039 at 16
- R. v. Vanderbruggen, 2006 CanLII 9039 at 16
- e.g. R. v. Rienguette, 2012 ONSC 4633 para. 19 to 24 - judge gave limited reasons for "forthwith"
R. v. Thomsen, 1988 CanLII 73 (SCC),  1 S.C.R. 640
R. v. Kachmarchyk, (1995), 165 A.R. 314 at 234
- R. v. Bernshaw, 1995 CanLII 150 (SCC),  1 S.C.R. 254
- R. v. Letford, 2000 CanLII 17024 (ON CA)
- R v Hafermehl  AJ No 981 (CA); R v Wetzel 2012 SKQB 24 at 29
- R v Papa  OJ 1497 - 14 min between arrest and demand ("We expect more of a police officer than simply to make an arrest")
- R v Iyoupe, (1972), 8 C.C.C. (2d) 198 - 15 min delay after arrest due to difficulty with accused
Sample within Two Hours
Where the sample was taken outside of the two hour limit, the Crown can only prove the BAC levels by making an inference from the measured BAC level.This requires a qualified expert on the absorption, distribution and elimination of ethanol alcohol by the human body.
The opinion sought by the crown would be the BAC level while driving in light of :
- the accused gender, age, height and weight
- the time of driving
- the time and readings of tests
- whether any alcohol was consumed between driving and the tests, and what effect it would have on the readings
- any evidence on the accused's drinking around the time of the incident
- the timing of and amount of drinking needed to produce the readings without having BAC over 0.8 while driving
It is expected that an expert testifying will be relying on a number of assumptions, such as:
- A rate of elimination of between X and Y milligrams of alcohol in one hundred millilitres of blood per hour (varying depending on the age, gender, height and weight of the individual)
- A two hour plateau;
- No consumption of alcohol between the time of driving until after the last test; and
- No significant consumption of alcohol just prior to, or an instant before the moment the accused was established as in care and control.
The expert should be able to testify to the number of “standard drinks” needed to be consumed at specific times prior to operating the vehicle for the readings to be generated. However it may not be necessary to prove the actual case.
Where such expert evidence is needed to establish BAC at the time of driving, the evidence may include the possibility of the BAC being either just below or just above 0.8. This is known as straddle evidence.
This evidence is considered admissible and may still be sufficient to support a conviction. The courts may consider the evidence, along with other factors relating to impairment, to determine whether this evidence raises a reasonable doubt rebutting the presumption in s. 258(1)(d.1).
It is generally understood that the elimination rates is 20 mg of alcohol in 100 ml of blood per hour.
- e.g. R. v. Baxter, 2012 ONCJ 91 at 13
- e.g. R. v. Baxter, 2012 ONCJ 91 at 26
- R. v. Gibson, 2008 SCC 16
- See R. v. Paszczenko, [http://canlii.ca/t/2cpjc 2010 ONCA 615 at para. 42]
Interval Between Samples
The test involves the taking of three breath samples of no less than 15 minutes apart.
Where the gap between samples is greater than 20 minutes some explanation is required or else it may be not as soon as practicable in compliance with the requirements of s. 258(1)(c)(ii).
The police are required to monitor the accused for the 15 minutes leading up to the breath test in order to ensure that there is no burping, vomiting, or belching that would give artificially high readings.
A failure to wait 17 minutes after an "invalid sample" can invalidate the presumption.
Samples Directly into Instrument
Under s.258(1)(c)(iii), the Crown must prove beyond a reasonable doubt that sample was provided "directly into an approved instrument". This can be proven by inference as a matter of logic and common sense based on surrounding evidence.
- R v Burns  OJ No 1050 (ONSC)
- R v Triantos,  OJ No 803
Taken by Qualified Technician
Section 254(3)(1)(a) requires that the "qualified technician" have an opinion that the samples properly administered and were sufficient for "a proper analysis" of the alcohol concentration.
Analysis by Approved Instrument
Under s. 258 (1)(c)(iv), “an analysis of [a] sample was made by means of an approved instrument operated by a qualified technician” is a necessary element to establish “conclusive proof” of the BAC level at the time of operation.
It is not necessary to prove beyond a reasonable doubt that the device is working properly. 
The test has both a subjective and an objective component. The officer must have an honest belief which is demonstrated and the belief must be objectively reasonable.
A described device or instrument is not fatal so long as it is believed by the officer that it is an approved screening device.
Factors that go to whether the officer knew that the test was reliable include the familiarity of the effect and measure of the temperature at the time the test was taken.
Failure to operate the machine in compliance with the manual may raise doubt as to the reasonable belief that the machine results are accurate. However, it is not necessary that the operator strictly follow the operating manual where the officer's training experience and belief go beyond what is in the manual.
For details on the test procedure see: R v Moriaux, 2012 MBPC 20 at 19 - 39
The list of approved devices are found in SI/85-201 Approved Breath Analysis Instruments Order].
Inconsistencies in the evidence of naming the device a "Intoxilizer 8000C" and "Intoxilizer 8000", of which only one of them is approved, may have the effect of raising doubt on the element.
Where Presumption Does Not Apply
Where the presumption under s. 258(1)(c) does not apply, the crown needs to prove the BAC at the time of the offence by inference. This generally requires the calling of an expert witness who can testify as to the BAC level at the time of the offence given the reading and the timing of the reading of the breath sample.
Admission of Breath Test Results
The breath test results can be admitted into evidence either by way of 1) viva voce evidence of the qualified technician; or 2) tendering the Certificate of the qualified technician under s. 258(1)(g).
The crown is permitted to rely the results proven both ways.
Section 258(1)(g) states that:
s. 258 (1)...
- (g) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), a certificate of a qualified technician stating
- (i) that the analysis of each of the samples has been made by means of an approved instrument operated by the technician and ascertained by the technician to be in proper working order by means of an alcohol standard, identified in the certificate, that is suitable for use with an approved instrument,
- (ii) the results of the analyses so made, and
- (iii) if the samples were taken by the technician,
- (A) [Repealed before coming into force, 2008, c. 20, s. 3]
- (B) the time when and place where each sample and any specimen described in clause (A) was taken, and
- (C) that each sample was received from the accused directly into an approved container or into an approved instrument operated by the technician,
is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate;
To rely upon s. 258(1)(g) requires:
- the analysis of each samples has been made by means of an approved instrument
- the instrument was operated by the technician
- the technician ascertained it to be in proper working order by means of an alcohol standard, identified in the certificate, that is suitable for use with an approved instrument
- the results of the analyses are made out
- the time and place of each sample was made out
- each sample was received from the accused directly into an approved container or into an approved instrument operated by the technician
- R v Staples  OJ 4565 (CA)
- R v Lightfoot,  1 SCR 566
Presumption of Accuracy
The presumption of accuracy is the presumption that the readings of the Certificate are an accurate representation of the accused's BAC unless there is "evidence to the contrary". Although, the presumption is not contained within s. 258, it arises out of operation of the application of s. 25 of the Interpretation Act to s. 258(1)(g). Thus, the presumption only applies where the evidence of readings are admitted through the tendering of the Certificate of the qualified technician.
The presumption means forgoing the need for the testimony of the breath technician to testify to validate the certificate. The Crown may introduce the "certificate as prima facie proof of the facts contained therein, without the need to prove the signature or the official character of the person signing the certificate."
The only way to defeat this presmuption once the evidence is established is by presenting evidence tending to show all of the following:
- That the approved instrument was malfunctioning or was operated improperly,
- That the malfunctioning or improper operation resulted in the determination that the concentration of alcohol in the defendant's blood exceeded 80 milligrams of alcohol in 100 millilitres of blood,
- That the concentration of alcohol in the accused's blood would not have exceeded 80 milligrams of alcohol in 100 millilitres of blood.
With the amendments of s. 258 in July, 2008 in Bill C-2, the presumption is generally not applicable, as there is no longer any option to present "evidence to the contrary".
Certificate of Analysis
The Certificate of Analysis is the document setting out the readings from the breath test. It can be admissible as evidence without calling the breath technician to give viva voce evidence where it can be established where:
- the sample was taken in compliance with the requirements of s. 258(1)(c) and 258(1)(d.1), 258(1)(g)
- notice of intention to produce the Certificate of Analysis
Section 258(7) provides a requirement for notice before a "shortcut" can be taken in proving blood‑alcohol content.
The provision requires two things. First, that the accused be given reasonable notice of intention to produce the Certificate of Analysis at trial, and second, that the accused be given a copy of the Certificate.
Notice of intention to produce certificate
(7) No certificate shall be received in evidence pursuant to paragraph (1)(e), (f), (g), (h) or (i) unless the party intending to produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate.
R.S., 1985, c. C-46, s. 258; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 32 (4th Supp.), s. 61; 1992, c. 1, s. 60(F); 1994, c. 44, s. 14(E); 1997, c. 18, s. 10; 2008, c. 6, s. 24.
It is mostly accepted that the certificate must be proven on a balance of probabilities.
The Certificate given to the accused does not need to be signed as a duplicate. It is acceptable as long as it "is a true copy in all essential particulars and conveys to the defendant all of the required information."
The term "copy" must mean "true copy" as an untrue copy would not even be a copy.
The officer can be challenged on whether he served the accused with a true copy. The police officer must be able to confirm that he had verified that it was a true copy or else the Certificate would not be admissible. Merely glancing at the documents is not enough to ensure it was an exact reproduction. However, word for word comparison is not necessary either. There is suggestion that service of a carbon copy can be considered a duplicate and so may not need review. Photocopies are generally sufficient. However, they must be legible to be valid.
When serving notice is it necessary that the officer be satisfied that the accused understood the notice. This is particularly relevant where there are language difficulties recognized by the officer.
In determining the admissibility of the certificate, the court may consider the contents of the certificate.
R v Hruby (1980) 4 MVR 192, 1980 ABCA 20 (CA)
R v Pickles (1973) 11 CCC (2d) 210 (ONCA)
Balance of probabilities:
- R. v. Redford, 2012 ABPC 19 - comprehensive summary of the law
- R. v. Buffalo (2010), 480 A.R. 284 (Alta. Q.B.)
- R. v. Nelson  A.J. No. 467 (Alta. Q.B.)
- R v Mokelky, 2008 ABPC 343
- R. v. MacKinnon,  O.J. No. 3896 at para 2
- R.v. Duplessis 2006 ABQB 297, (2007), 49 MVR (5th) 252 (Alta. QB)
- R v Glass  5 W.W.R. 761, 12 C.C.C. (2d) 450
- R v Barratt (1977), 35 C.C.C. (2d) 174 (Ont. H.C.) per Maloney J. at p. 175 concerning s. 237(5): ("...that the accused was served with a copy of the certificate of analysis within the meaning of s-s. (5) and, as I have said, that means a true copy")
- R v Vogel 2010 SKPC 185
- R v Stewart, 2012 SKPC 39 at 47
- R. v. McEvoy 2001 ABQB 851 at 26
- R. v. Bergen 2009 ABPC 106
- See R. v. Baird,  S.J. No. 225 (Sask. Prov. Ct.)
- See R. v. Leeson,  B.C.J. No. 1630 (B.C. Co.Ct.) - illegible photocopy held invalid
- R v Singh, 2012 ABPC 91 at 36
- R v Schlegel, 1985 CanLII 652 (BCCA) at para 19 and page 447
Errors in Certificate
Errors in the certificate are not necessarily fatal.
Typographical errors in the certificate can be corrected. They can be corrected by presenting extrinsic credible evidence which provides a basis to establish that there was an error and what the correction would be. This will normally be through viva voce evidence. It should not be be done merely by inference. The evidence can come from someone other than the technician.
The scratching out of a number and insertion of a number is an error that needs to be clarified by viva voce evidence.
An error in citing the criminal code provision regarding the designation of the certificate does not invalidate the certificate.
An errror in checking off the right box identifying the qualification of the technician can be fatal without some additional evidence on their qualification somewhere on the certificate.
"Evidence to the Contrary"
"Carter" evidence sometimes described as the "Carter defence", refers to defence evidence that is admitted for the purpose of presenting "evidence to the contrary", rebutting presumption of accuracy and presumption of identity.
Before the July 2, 2008 amendments to s. 258(1)(c), the “Carter defence” was available for any offence of over 80. This allowed an accused to present evidence of consumption as well as expert evidence inferring the likely blood alcohol level. Now such evidence is specifically inadmissible where the presumption of identity is being relied upon.
Instead the accused may only present evidence showing that the approved instrument “was malfunctioning, or was operating improperly” and resulted in BAC over 80 when it otherwise would not have.
- R v Carter  OJ No 1390 (ONCA)
Bolus drinking is the significant consumption of alcohol just prior driving. It is considered a relatively rare occurrence. The Crown must disprove the possibility of bolus drinking. This is usually done by common sense inferences. Thus, absence any evidence on the record to the contrary, the Crown may simply rely upon the common sense inference that people do not normally ingest a large amount of alcohol immediately prior or during the operation of a motor vehicle.
See R. v. Calabretta, 2008 ONCJ 27 for a detailed consideration on Bolus drinking
Blood / Urine tests
The blood sample test results can be proven by oral evidence through the normal rules of evidence or by documentary evidence of a certificate of a qualified medical practitioner or qualified technician. The certificate must comply with s. 258(1)(h).
- "(ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood;"