Driving offences are not uncommon, but they can come with serious consequences. Convictions under certain driving offences, such as impaired driving, can not only seriously impact your personal life and employment but can also result in penalties such as hefty fines, license suspension, or jail time. For these reasons, the evidence used to convict a person of an offence must be both accurate and obtained in accordance with the law. For example, when police obtain a breath sample of a suspected impaired driver, it is important that several legislative requirements and procedures are adhered to. A recent decision from the Ontario Superior Court of Justice has provided clarification on the legislative requirements pertaining to the presumption of accuracy in relation to breath sample analysis.

Suspected impaired driver arrested following hit-and-run

In the case of R v. Gault, the respondent was involved in a hit-and-run accident on Royal York Road in Toronto on June 2, 2020. The initial reporting call to the police suggested the driver may be impaired. When police arrived, an officer recognized the accused, who matched the driver’s description and stood close to a vehicle with fresh damage.

The police officer told the Court that the respondent had “glossy eyes” and was not steady on his feet. The respondent was arrested for impaired driving, and a breath sample was demanded. At the police station, two breath samples were analyzed and revealed that the respondent had a blood alcohol content of “80 or over” within two hours of ceasing to operate a conveyance, pursuant to section 320.14(1)(b) of the Criminal Code.

At trial, the respondent stated that he was drinking vodka at his friend’s house when he began to feel sick and intoxicated. He went on to testify that he wanted to go to the pub to eat chicken wings and was on his way there when the accident occurred.

Defence argues that Crown cannot rely on presumption of accuracy

The Crown called the arresting police officer their only witness at trial and did not call on the qualified technician or analyst regarding the breath samples. The Crown filed a certificate of a qualified technician to establish the respondent’s blood alcohol concentration and relied on the presumption of accuracy. However, a certificate of the analyst to prove the certification and target value of the alcohol standard used for system calibration checks was not provided.

The defence raised a preliminary legal issue following the close of the evidence, arguing that the Crown could not rely on the presumption of accuracy as the statutory prerequisites were not met. Section 320(1)(a) of the Criminal Code requires that before each breath sample is received, the qualified technician must perform a system air blank test and a system calibration check. The defence pointed to the approved instrument and pointed out that following the system calibration check, a deficient sample was obtained, and no further system calibration checks were completed before the respondent’s first breath sample was analyzed. Under the Criminal Code, a deficient sample is considered to be a sample for the purpose of requiring a new system calibration check.

The Crown claimed that the statutory prerequisites were met as there was no requirement in the legislation for an additional system calibration check following a deficient sample. However, the trial judge found that the Crown failed to establish that the respondent’s blood alcohol content was “80 or over,” and the respondent was acquitted.

Crown appeals acquittal of defendant

The Crown appealed the trial judge’s decision to the Ontario Superior Court on the basis that the judge erred in his interpretation of the statutory prerequisites of the presumption of accuracy and claimed that the deficient sample did not require another system calibration check.

The Court agreed with the Crown’s argument and found that the trial judge wrongly interpreted the statutory prerequisites for the presumption of accuracy under the Criminal Code. The Court explained that the presumption of accuracy is an evidentiary shortcut which the Crown can use to prove blood alcohol content. The presumption operates through section 320.31 of the Criminal Code, which deems that the blood alcohol content determined by testing meets all statutory requirements of the section and is “conclusive proof of the person’s blood alcohol level at the time of testing.” The Crown can establish such requirements through a certificate of a qualified technician, which was introduced at trial.

Court finds no legislative requirement for new system calibration check before each sample

The Crown also highlighted that if the legislation required a new air blank test and a new system calibration test after each inadequate attempt to provide a breath sample, a 15-minute interval would be required after every such attempt. This would contradict Parliament’s intention to simplify and streamline drinking and driving investigations and prosecutions if this were the case.

The Court held that a deficient breath sample resulting from an individual not blowing with enough force cannot be interpreted as a sample within the law. In this case, it was found that the respondent provided multiple inadequate breath samples due to not blowing with enough force. Further, it was noted that the deficient sample in question needed to be analyzed. The Court agreed with the Crown that there is no legislative requirement requiring a system calibration check to take place immediately before each breath sample.

Court allows Crown’s appeal and orders new trial

The Court held that the statutory requirement of a new system calibration check was not triggered, and the deficient breath sample was not an intervening event that could adversely affect the reliability of the breath sample results. The Court acknowledged that a new system calibration check between the deficient sample and the respondent’s first analyzed breath sample was unnecessary.

Accordingly, the Court found that the Crown did satisfy the statutory prerequisites relating to the presumption of accuracy and held that a conviction should have followed. The Court did not, however, overturn the acquittal and substitute a conviction because the respondent’s Charter applications had not yet been argued or adjudicated. Therefore, a new trial was ordered.

Contact the Criminal Defence Lawyers at Barrison Law in Oshawa for Skilled Representation in Impaired Driving Cases

Driving offences, such as impaired driving by drugs and/or alcohol, can detrimentally impact a person’s life. The trusted criminal defence lawyers at Barrison Law work with clients across the Durham Region who have been accused of various criminal charges, including impaired driving offences. Our lawyers take time to understand your situation and develop a strategic defence to protect your rights. To schedule a confidential consultation with one of our lawyers, call us at 905-404-1947 or contact us online.