Décision

1.                 This is an appeal by leave against a decision of the Superior Court that allowed an appeal against a finding of guilt by the Court of Québec on a count of impaired driving “80 or over.”
2.                 For the reasons of Healy, J.A., with which Marcotte and Gagné, JJ.A. agree, THE COURT:

3.                 DISMISSES the appeal.

I

Introduction

4.                 This is an appeal by leave[1] against a decision of the Superior Court[2] that allowed an appeal against a finding of guilt by the Court of Québec[3] on a count of impaired driving “80 or over.”[4] At issue is whether the prosecution must establish the target value of the alcohol standard by the certificate or testimony of an analyst as a necessary condition for the application of the presumption of accuracy in section 320.31(1)(a) of the Criminal Code.[5] The Superior Court concluded that this provision requires such proof.

II

Context

5.                 In this case the certificate of the qualified technician included the following assertion:

Qu’avant le prélèvement de chaque échantillon, j’ai effectué un test à blanc ayant donné un résultat d’au plus 10 milligrammes d’alcool par 100 ml de sang et un test d’étalonnage ayant permis d’observer un écart maximal de 10% par rapport à l’alcool type certifié par l’analyste. 

The prosecution sought to prove its case on the basis of the qualified technician’s certificate. It did not produce the certificate of an analyst. The qualified technician’s certificate included a report of the results in the samples taken from the accused and a statement that the results of calibration tests were within 10% of the alcohol standard certified by an analyst. It did not include a statement of the target value of the alcohol standard. No other evidence of the target value was adduced. The qualified technician’s certificate is itself hearsay[6] and contains the further hearsay assertion of the analyst’s certificate of the alcohol standard. In this sense the qualified technician’s certificate is double hearsay. The Superior Court concluded that the prosecution could not rely upon the qualified technician’s certificate to invoke the presumption of accuracy unless it proved beyond reasonable doubt, by the analyst’s certificate or testimony, the target value of the alcohol standard. In the absence of such evidence, it set aside the finding of guilt in the lower court.

6.                 Provincial courts of appeal are divided as to whether the qualified technician may state that the analyst has certified the liquid solution (alcohol standard).[7] The Alberta Court of Appeal decided in Goldson that to invoke the presumption of accuracy the prosecution cannot rely upon the certificate of the qualified technician to state that the alcohol standard was certified by the analyst because this would be inadmissible hearsay.[8] The Yukon Court of Appeal concluded differently in MacDonald.[9] Leave was granted for the Court to consider “whether the statement made by the qualified technician in his certificate that he used an alcohol standard that was certified by an analyst constitutes admissible and sufficient evidence that the alcohol standard had been certified by an analyst.” It held that the certificate of the qualified technician could state the content of the analyst’s certificate because it is admissible hearsay, even admissible double hearsay if it affirms the content of the analyst’s certificate. In MacDonald the certificate of the qualified technician included a statement that the result of the system calibration check was within “10% of the target value of an alcohol standard which was certified by an analyst.” The Court concluded that the certificate of the qualified technician was sufficient to engage the presumption of accuracy. It did not explicitly rule whether that certificate must include a statement of “the target value of the alcohol standard certified by the analyst.”
7.                 In Rousselle and Larocque[10] the New Brunswick Court of Appeal adopted the position in MacDonald. In the first case the qualified technician’s certificate made no mention of the target value of the alcohol standard. In the second the appellant, Larocque, argued that the certificate of the qualified technician must explicitly state the target value of the alcohol standard. The Court concluded that proof of the target value is not an essential element that must be proved before the presumption of accuracy will apply. In short, the New Brunswick Court of Appeal held that the qualified technician’s certificate is admissible hearsay that may include a hearsay report of the alcohol standard but that it need not specify the target value of the alcohol standard.

8.                 Divisions in the jurisprudence concerning reliance on the presumption of accuracy in section 320.31(1)(a) may be summarised in three points:

An analyst’s certificate is admissible hearsay and sufficient only if it includes a statement of the target value of the alcohol standard.[11]

An analyst’s certificate is admissible hearsay and sufficient if it includes a statement of the alcohol standard.[12]

A qualified technician’s certificate is admissible hearsay and sufficient if it states the alcohol standard that was certified by an analyst and it need not include a statement of the target value.[13]

No provincial or territorial court of appeal has yet decided that a qualified technician’s certificate is admissible and sufficient to establish the presumption of accuracy but only if it includes a statement of the target value of the alcohol standard certified by the analyst.

9.                 The division among these positions concerns the admissibility of hearsay in the certificate or testimony of a qualified technician or an analyst. Who may or must give evidence of what? This Court has not previously considered whether the prosecution can rely on the presumption of accuracy without proving the target value of the alcohol standard or whether the target value, if it is a necessary element, may be proved by the qualified technician’s certificate or must be proved by the certificate or testimony of an analyst.
10.            This appeal raises a question of law concerning the interpretation of section 320.31(1)(a) to which the standard of correctness applies on appellate review.[14] An exposition of the specific facts of this case is therefore unnecessary.

11.            The certificates of the qualified technician or an analyst are admissible hearsay:

320.32 (1) A certificate of an analyst, qualified medical practitioner or qualified technician made under this Part is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person who signed the certificate.[15]

Neither the qualified technician nor the analyst must testify, although they can testify, and the evidence of either or both can be presented by certificate. To ensure the reliability of the certificate, the party against whom it is tendered may apply to the court for an order requiring the attendance of the person who signed the certificate for purposes of cross-examination. The evidence of either the qualified technician or the analyst, or both, is hearsay and if the qualified technician’s certificate reports a statement certified by the analyst it is double hearsay by the inclusion of a statement from the analyst’s certificate. The specific question is whether the “the target value of the alcohol standard” must be put in evidence and, if so, whether the certificate of the qualified technician or only the certificate of an analyst will suffice for this purpose. It is not disputed that the conditions for application of the presumption of accuracy in section 320.31(1)(a) will be met if the prosecution proves the target value of an alcohol standard by the certificate or testimony of an analyst. It is also not disputed that the presumption of accuracy will apply if the analyst states the target value. At issue is whether the presumption of accuracy can apply if the qualified technician states the target value of the alcohol standard or only if the analyst states this information.

12.            A statutory presumption cannot apply unless the conditions for its application are satisfied.[16] In the present case the Superior Court concluded that the presumption of accuracy cannot apply without the evidence of an analyst, whether by certificate or testimony. The Superior Court also concluded that the target value of the alcohol standard is an essential element that must be included in the analyst’s evidence in order for the presumption of accuracy to apply. Accordingly, the Superior Court concluded that the qualified technician’s certificate could not by itself establish the target value of the alcohol standard. This conclusion follows the law previously stated by the Superior Court in Brisson,[17] which was also followed by the same court in Bakalis.[18]

III

The presumption of accuracy

13.            The provision is this:

14.            The legislative scheme provided in section 320.31(1)(a) comprises four variables: a “system blank test,” the liquid solution (alcohol standard) used in the test with a specified concentration of alcohol, the target value of that standard which is a figure within 10% of the specified alcohol concentration, and the actual results of the tests administered in the instant case. Before taking a sample from the accused, the qualified technician must perform a system blank test (also called an “air blank test”), which draws in ambient air and tests it for alcohol content, and a system calibration test, which uses a liquid solution (alcohol standard) with a known alcohol concentration (target value).[19] A sample is then taken from the accused. This procedure is performed for each of the two samples taken from the accused to ensure the accuracy of the approved instrument. The samples taken from the accused are presumed accurate only if (1) the results of the “system blank test,” which checks the ambient air for substances like ethanol that might interfere with the instrument’s readings, are no more than 10 milligrams of alcohol in 100 millilitres of blood; and (2) the results of a “system calibration check” are within 10% of the target value for the liquid solution (alcohol standard) certified by an analyst. Only when these conditions are met can the presumption of accuracy apply.
15.            The blood alcohol concentration (BAC) is an essential element that the prosecution must prove in a charge of impaired driving “80 or over.”[20] If the ordinary principles of evidence applied, this burden would require the prosecution to adduce admissible evidence of that fact and to prove it beyond reasonable doubt. But Parliament has alleviated that burden. It has provided that the prosecution may tender the certificate of a qualified technician to prove the BAC. If a certificate is tendered in conformity with the requirements of the Code, the “conclusive proof” of the BAC that it provides under section 320.31(1) is known as the presumption of accuracy. This legislative scheme operates to dispense with the need to call either an analyst or the qualified technician to testify about the equipment for testing or the administration of the tests in the instant case. The presumption of accuracy means that an admissible certificate makes conclusive proof of the facts asserted in it and can leave no reasonable doubt of an essential element of guilt in the definition of the offence. The defence has an opportunity to challenge this presumption by requiring the attendance of the analyst or qualified technician for cross-examination.[21] This statutory arrangement is frequently identified in the jurisprudence as a “shortcut” to expedite and simplify proof of the BAC.[22] There are two shortcuts. The qualified technician’s certificate is admissible hearsay.[23] That shortcut is supplemented by a second shortcut, which is that the qualified technician’s certificate may affirm the statement of an analyst and thus dispense with the need to produce the certificate or testimony of the analyst.[24] In sum, the Code appears to permit the prosecution to prove an essential element of the offence by a presumption consisting of a hearsay certificate that conveys double hearsay originating in the certificate of the analyst.
16.            What, then, are the hearsay elements that the qualified technician’s certificate must contain for the presumption of accuracy to apply? If there is no evidence directly from an analyst, by certificate or testimony, there are only two possible answers according to the text of section 320.31(1)(a). One is that that the qualified technician’s certificate must include an assertion that an analyst certified the alcohol standard used. The other is that the certificate must also include the “target value of the alcohol standard certified by an analyst.” There is obviously an ambiguity in the syntactical construction of section 320.31(1)(a). It could be interpreted to mean (i) that the analyst need only certify the alcohol standard for the presumption of accuracy to operate or (ii) that the analyst must also certify the target value of the alcohol standard. This is an ambiguity that relates to the elements that must be established before the presumption of accuracy can apply. As previously noted, there is a further ambiguity that relates to the manner in which these elements may be established.
17.            Before examining these issues further, it should be noted that the necessary elements for application of the presumption of accuracy and the evidentiary means to establish them are distinguishable from the prosecution’s obligations of disclosure that are enumerated in section 320.34(1). Among the items to be disclosed is “a certificate of an analyst stating that the sample of an alcohol standard that is identified in the certificate is suitable for use in an approved instrument.” Section 320.34(1) does not define either the elements that are necessary for the presumption of accuracy to apply or the evidentiary means for its application. It provides only a list of items that the prosecution must disclose to the defence in the preparation of a case. Compliance with the duty to disclose in section 320.34 is not synonymous a statement of the conditions for application of the presumption of accuracy. This distinction was carefully noted by the Superior Court in the present case.[25]
18.            Before the amendments of 2018 that introduced section 320.31(1)(a) in its current form, it was established that the qualified technician’s certificate could include a hearsay assertion that an analyst had certified an alcohol standard that was “suitable for use” in the administration of breath tests by a qualified technician.[26] The criterion of “suitable for use” was replaced in the amendment by the current formulation of the criterion, which is that the result of a system calibration test must be “within 10% of the target value of an alcohol standard certified by an analyst.” This phrase defines and explains what was previously contemplated in the vague phrase that an alcohol standard must be certified as “suitable for use.” The amended phrase expresses a precisely quantified and essential condition for the application of the presumption of accuracy.[27] 
19.            As noted in MacDonald, Rousselle and Larocque, there is nothing in the text of the amended provisions of the Code to suggest an intention to change the law in this regard and section 320.32 reinforces the admissibility of hearsay in the qualified technician’s report. The issue raised in the present appeal is not only whether such hearsay remains admissible but, if it is, what that admissible hearsay may report as proof of its content. Before the amendments, the qualified technician could report the analyst’s certificate that the alcohol standard was “suitable for use.” After the amendments, can the qualified technician report the analyst’s certificate of “the target value of an alcohol standard”? 
20.            Certification of the alcohol standard by an analyst is not the only criterion to support the presumption of accuracy. The presumption of accuracy is valid and effective only if the system calibration check is within 10% of the target value of the alcohol standard certified by the analyst. The qualified technician must know what this target value is before performing a system calibration check. The qualified technician can obtain this information from the label attached to the cylinder containing the alcohol standard certified by the analyst, from a document accompanying this cylinder, or from the analyst’s certificate. Knowing the target value is an essential condition for the operation of the presumption of accuracy, as the terms of section 320.31(1)(a) make clear. The target value must appear in the analyst’s certificate. If the qualified technician can report the content of the analyst’s certificate, the qualified technician’s certificate is incomplete if it does not include an assertion of the target value. Even if that assertion is a hearsay statement derived from the certificate of the analyst, it must be present in the qualified technician’s certificate. It cannot be calculated in court at the trial of a case based on the evidence of certificates. It is not a matter of judicial notice. There must be evidence. There might be other means to affirm the target value of the alcohol standard but there is no question that evidence of the target value of the alcohol standard certified by an analyst is a necessary condition for the operation of the presumption of accuracy. Without it the purpose of the presumption, which is to establish the accuracy and reliability of the results of breathalyzer tests put in evidence, cannot be fulfilled.[28]
21.            The target value of the alcohol standard must be put in evidence in a calculated or readily calculable form. Two reasons support this view. The first is that the plain words of the provision must be given meaning. This view is consistent with the conceptual basis of the presumption of accuracy, which is that accuracy can be presumed only if the test is within 10% of the target value of the alcohol standard certified by the analyst. That fact must be established by admissible evidence, which will typically be either the analyst’s certificate or that of the qualified technician who repeats an assertion to this effect in the analyst’s certificate. This view is consistent with the stated aim of the amendments, which was to simply and facilitate reliable proof of BAC in prosecutions for impaired driving “80 or over.”[29]
22.            The aim of the amendment was not only to simplify and facilitate proof of the BAC. It was to adjust the legislative scheme to enhance the scientific reliability of test results. This overarching purpose was recognised in Alex: “the preconditions governing the evidentiary shortcuts are concerned with the reliability of the breath test results and their correlation to the accused’s blood-alcohol concentration at the time of the offence.”[30] The justification of “conclusive proof” in the presumption of accuracy lies in the accuracy and reliability of the test results. Each precondition is essential to this objective and the target value of the alcohol standard is an essential element to ensure the integrity and reliability of the breath-testing procedure.[31]  
23.            The second reason lies in the principle of strict construction of penal statutes.[32] In this instance the provision alleviates the prosecution’s burden to prove an essential element of the offence (BAC) by permitting “conclusive” proof in the form of a qualified technician’s certificate that itself may contain hearsay to the effect that the analyst, whose attendance before the court was not required, has certified the alcohol standard. Even if the hearsay permitted by section 320.32 is typically reliable, it is not the only means by which the prosecution may prove this element of the offence. If the qualified technician is permitted to include hearsay in his or her certificate by claiming that the analyst certified the alcohol solution, which is itself hearsay, the justification for this is convenience and not necessity. A relaxation of the prosecution’s burden to prove an essential element of the offence must be strictly construed to avoid an interpretation that would make the prosecution’s burden perfunctory.
24.            A requirement that the analyst state the target value is consistent with a standard of strict construction of penal statutes. In this instance it is also consistent with the principle that statutory provisions should be interpreted in a manner that is favourable to the accused in case of ambiguity and most compatible with values expressed in the Charter. Section 320.31(1)(a) allows conclusive proof of an essential element by means of a proxy or substitute in the form of certified evidence. It follows that the premise of the presumption will not be consistent with the presumption of innocence unless it is proved beyond reasonable doubt. Otherwise the evidence of the qualified technician or the analyst would be insufficient.

IV

Specifying the target value

25.            Decisions in the courts of appeal of Yukon and New Brunswick have favoured the view that section 320.31(1)(a) does not impose on the prosecution a burden to adduce evidence of the analyst’s certificate that was the basis of the qualified technician’s certificate.[33] That conclusion is consistent with the presumption in section 320.32 that the qualified technician’s certificate, like that of an analyst, is admissible hearsay evidence of the truth of its content. Thus, to rely upon the presumption of accuracy the prosecution may tender the certificate of a qualified technician that contains an affirmation that the results of the system calibration tests in the administration of the tests were within 10% of the target value of the alcohol standard certified by an analyst. It is not necessary to produce a certificate (or testimony) of the analyst for this purpose but it is necessary to prove the target value of the alcohol standard certified by the analyst. That could easily be done by producing the certificate of the analyst if that certificate includes a statement of the target value. It could also be done, with reliance on section 320.32, if the qualified technician’s certificate includes an affirmation of the target value of an alcohol standard certified by an analyst. Whether by the certificate of the qualified technician or the analyst, or both, only with an affirmation of the target value of the alcohol standard is the evidence of compliance with the presumption of accuracy complete. Without that affirmation, accuracy cannot be presumed. The target value used to certify the standard is what allows the accuracy of the results of the tests administered in the instant case to be established beyond reasonable doubt.
26.            This is not an element of picayune detail when the issue is viewed in its context. The presumption of accuracy is the mechanism that allows the prosecution to prove the central element of a criminal offence. That element marks the difference between a finding of guilt and an acquittal. In this regard the presumption of innocence is maintained or defeated by the presumption of accuracy. The convenience of proof afforded to the prosecution must be interpreted in a manner that reflects the importance of accuracy in the determination of the jeopardy to which an accused person is exposed. In short, while Parliament may seek to simplify the law with respect to the prosecution of offences for impaired driving, it must not do so in a manner that reduces the burden of proof to a paper formality that derives its value solely from hearsay.
27.            Section 320.31(1) is better interpreted to mean that if the prosecution relies upon the certificate of a qualified technician to prove BAC, and that certificate includes a hearsay affirmation of an analyst’s certificate, either the qualified technician’s certificate or the analyst’s certificate must include an affirmation of the target value of the alcohol standard that the analyst certified. As the presumption of accuracy proves an essential element of the offence, it is axiomatic that the conditions for its application must be proved beyond reasonable doubt.
28.            Relying on Brisson,[34] and referring to the certified target value rather than the target value of an alcohol standard certified by an analyst, the Superior Court concluded in this case that the target value of the alcohol standard is an essential element that must be proved as a condition of the application of the presumption of accuracy. It also concluded that the certificate or testimony of an analyst is necessary for this purpose. I agree that the first of these two conclusions is correct because the target value is an essential component in the determination of accuracy that is the purpose of section 320.31(1). I do not agree with the second conclusion because it is too restrictive. Section 320.32 provides that the qualified technician’s certificate is admissible hearsay and does not exclude the inclusion of a further hearsay reference to the certified statement of an analyst. This interpretation is consistent with the Code in its current form, which itself is consistent with settled jurisprudence before the amendments of 2018, and with the overarching legislative objective that reliable proof of BAC should be permitted in a simple and expeditious form. A restriction that would allow the prosecution to prove this element only by the evidence of an analyst would hinder this objective, not least because there is no demonstrable risk of prejudiced in extending the permissible means of proving this element to include the qualified technician’s certificate.

V

Conclusion

29.            I agree with the Yukon Court of Appeal in MacDonald that the prosecution may rely on the presumption of accuracy on the basis of the qualified technician’s certificate. On this basis I would also agree it may rely on the qualified technician’s certificate if that certificate contains an affirmation of the target value of the alcohol standard certified by an analyst. In short, there is no reversible error in the judgment of the Superior Court in this case but its conclusions may be relaxed to permit a statement of the target value of the alcohol standard in either the certificate of the qualified technician or an analyst.
30.            The simplest way in which to avoid complications in the proof of the target value is for the prosecution systematically to produce in practice the certificate of an analyst that contains this affirmation. This practical solution is not onerous or even inconvenient but it does not preclude the possibility that the prosecution may rely on the qualified technician’s certificate to prove the target value of the alcohol standard.
31.            I propose to dismiss the appeal. The conclusion of these reasons is that to rely on the presumption of accuracy by means of a certificate the target value of the alcohol standard that was certified by the analyst must be asserted in the analyst’s certificate or that of the qualified technician.

[1]  R. v. Vigneault, 2021 QCCA 1411.

[2]  Vigneault v. R., 2021 QCCS 3341.

[3]  R. v. Vigneault, 2020 QCCQ 8062.

[4]  Criminal Code, R.S.C. 1985, c. C-46, s. 320.14(1), as am. by S.C. 2018, c. 21, s. 15.

[5]  Criminal Code, R.S.C. 1985, c. C-46, as am. by S.C. 2018, c. 21, s. 15.

[6]  See, e.g., Rousselle v. R., 2024 NBCA 3, paras. [39]–[40].

[7]  See R. v. Goldson, 2021 ABCA 193, paras. [15]-[16], leave refused, R. v. Goldson, 2022 CanLII 10371 (S.C.C.); R. v. MacDonald, 2022 YKCA 7, paras. [26]-[42]; Rousselle v. R., 2024 NBCA 3, para. [39]; Larocque v. R., 2024 NBCA 4.

[8]  R. v. Goldson, 2021 ABCA 193, para. [83].

[9]  R. v. MacDonald, 2022 YKCA 7.

[10]  Rousselle v. R., 2024 NBCA 3, paras. [6]–[9], [57]; Larocque v. R., 2024 NBCA 4.

[11]  This is the position of the Superior Court in the present case and it is consistent with other decisions of the Superior Court and the Court of Québec: R. c. Brisson, 2020 QCCS 3794; Bakalis c. R., 2021 QCCS 3990; R. c. Rich, 2021 QCCS 3525; Provost Blanchard c. R., 2022 QCCS 4189; Roy-Morin c. R., 2022 QCCS 1921; Directeur des poursuites criminelles et pénales c. Hétu, 2021 QCCQ 11963; R. c. Truchon, 2021 QCCQ 11958; Cossette c. R., 2020 QCCQ 9298. See also R. v. Singh, 2021 ONCJ 539; R. v. Flores-Vigil, 2019 ONCJ 192.

[12]  This is the position of the Alberta Court of Appeal in R. v. Goldson, 2021 ABCA 193 and the New Brunswick Court of Appeal in Rousselle v. R., 2024 NBCA 3. See also R. v. Pahl, 2021 SKQB 179; R. v. Kvasnak, 2021 SKQB 283, para. [44]; R. v. Adams, 2023 NBPC 3.

[13]  This is the position of the New Brunswick Court of Appeal in Larocque v. R., 2024 NBCA 4. See also, e.g., R. v. Bahman, 2020 ONSC 638; R. v. Hepfner, 2022 ONSC 6064; R. v. MacKenzie Wright, 2023 SKKB 236; R. v. Greening, 2024 NSSC 57.

[14]  Housen v. Nikolaisen, 2002 SCC 33, paras. [8], [36]; R. v. Shepherd, 2009 SCC 35, para. [20].

[15]  Criminal Code, R.S.C. 1985, c. C-46, as am. by S.C. 2018, c. 21, s. 15. See also Interpretation Act, R.S.C. 1985, c. I-21, s. 25; Rousselle v. R., 2024 NBCA 3, paras. [39]–[40]; Larocque v. R., 2024 NBCA 4, paras. [34], [40]; Lightfoot v. R., [1981] 1 S.C.R. 566.

[16]  Falcon c. R., 2020 QCCA 867.

[17]  R. c. Brisson, 2020 QCCS 3794.

[18]  R. c. Bakalis, 2021 QCCS 3990. See also Provost Blanchard c. R., 2022 QCCS 4189; R. c. Rich, 2021 QCCS 3525.

[19]  See Larocque v. R., 2024 NBCA 4, para. [43]: “It is accepted that a proper calibration procedure is the key to verifying the accuracy of an approved instrument. To conduct the system calibration check, the qualified technician ascertains that the approved instrument is in proper working order by measuring a sample (alcohol standard) containing a known alcohol concentration (target value). At this preliminary stage, the blood alcohol concentration indicated by the approved instrument is compared with an objective and reliable measurement standard, i.e., the target value of the alcohol standard certified by an analyst. A system calibration check that gives a certain result only makes sense if the target value of the alcohol standard is known. Obviously, the qualified technician must know this target value in order to compare it with the result of the system calibration check. Whether he or she obtains this information from a label attached to the cylinder containing the certified alcohol standard, from a document accompanying the cylinder, from the analyst’s certificate or from another source, it is his or her duty to know the target value of the alcohol standard he or she is using to check that the approved instrument is in proper working order.” See also the description of the calibration check in R. v. Gubbins, 2018 SCC 44, para. [4](b): “The instrument is tested against an alcohol vapour of known concentration from a certified sample. The sample generally has a concentration equal to 100 mg% of alcohol in the blood. The instrument must accurately measure the concentration within 10% (i.e., the result must be between 95 mg% and 105 mg%). If the instrument fails to perform within this range, the test will be cancelled.” See R. v. St-Onge Lamoureux, 2012 SCC 57, paras. [25]-[27]. See also R. v. Flores-Vigil, 2019 ONCJ 192, para. [30]; Karen Jokinen & Peter Keen, Impaired Driving and Other Criminal Code Driving Offences, 2nd ed. (Toronto: Emond, 2023), 330–341.

[20]  Criminal Code, R.S.C. 1985, c. C-46, s. 320.14(1), as am. by S.C. 2018, c. 21, s. 15.

[21]  Criminal Code, R.S.C. 1985, c. C-46, s. 320.32(3), as am. by S.C. 2018, c. 21, s. 15. Section 320.34 requires the prosecution to disclose information relating to these matters and the defence may seek further disclosure: Criminal Code, R.S.C. 1985, c. C-46, s. 320.34, as am. by S.C. 2018, c. 21, s. 15.

[22]  See R. v. Alex, 2017 SCC 37, paras. [2], [35]-[36]. The jurisprudence relating to the presumption of accuracy refers abundantly to evidentiary “shortcuts.”

[23]  See, e.g., Rousselle v. R., 2024 NBCA 3, paras. [39]–[40]. This includes the statutory exception for the hearsay evidence of a certificate. See R. v. Alex, 2017 SCC 37, para. 17: “Section 258(1)(g) creates a statutory exception to the common law hearsay rule. It permits a certificate of analysis, which sets out the accused’s breath test results, to be filed for the truth of its contents without the need for viva voce evidence.” The analogous provision now is section 320.31(1)(a).

[24]  Rousselle v. R., 2024 NBCA 3, paras. [6]–[8], [57]; Larocque v. R., 2024 NBCA 4, para. [40]; R. v. MacDonald, 2022 YKCA 7, paras. [42], [75].

[25]  2021 QCCS 3341, paras. [32]-[37].

[26]  Criminal Code, R.S.C. 1985, c. C-46, s. 258(1)(g)(i), as am. by Criminal Law Amendment Act, R.S.C. 1985, c. 27 (1st Supp), s. 36. See Lightfoot v. R., [1981] 1 S.C.R. 566, 571-575; Rousselle v. R., 2024 NBCA 3, paras. [48]-[49].

[27]  Before the amendments, the presumption of accuracy was found in section 258(1)(c) of the Code.

[28]  See note 18, supra.

[29]  See the preamble to An Act to Amend the Criminal Code (offences relating to conveyances), S.C. 2018, c. 21: “Whereas it is important to simplify the law relating to the proof of blood alcohol concentration.”

[30]  R. v. Alex, 2017 SCC 37, para.[34].

[31]  See R. v. Gault, 2023 ONSC 2994:

[63] So, too, in St-Onge, in considering the constitutionality of the then-governing POA [presumption of accuracy] with reference to its predecessor provisions, the Supreme Court recognized the mutually reinforcing relationship between the effectiveness of the POA and the reliability of breath test results. At para. 36 of St-Onge, the Court held that: “[b]ecause it was hard to rely on the test results as effective evidence, the presumptions were less useful than they might have been, and the prosecution was hindered in its efforts to combat drinking and driving.”

[64]  Parliament’s intention in drafting s. 320.31(1) was to continue to improve the drinking and driving regime both by simplifying the POA and enhancing the reliability of breath test results. It sought to create a process that, if followed, could leave no doubt about the accuracy of the breath results, and could therefore justify an irrebuttable POA and the consequent likely finding of guilt. Each precondition in s. 320.31(1) advances Parliament’s purpose by ensuring the integrity of the breath testing process and the reliability of the test results.

[32]  See Pierre-André Côté & Mathieu Devinat, Interprétation des lois, 5th ed. (Montreal: Themis, 2021), p. 529, § 1575; Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Toronto: LexisNexis, 2014) § 15.25–15.28, 490–93. See, e.g., R. v. Paré, [1987] 2 S.C.R. 618, 629–30.

[33]  Following R. v. MacDonald, see Rousselle v. R., 2024 NBCA 3, paras. [6]–[8], [57]; Larocque v. R., 2024 NBCA 4, para. [40]. See also R. v. Patterson, 2023 SKKB 266, paras. [20]–[25]; R. v. Mackenzie Wright, 2023 SKKB 236, paras. [147]–[152]; R. v. Gault, 2023 ONSC 2994, para. [107]; R. v. Kelly, 2023 NSPC 19, para. [81]; R. v. Landry, 2023 NBBR 70, paras. [48], [54]; Jones v. R., 2023 NBBR 71, para. [39]; R. v. Hepfner, 2022 ONSC 6064, paras. [18], [20]; R. v. Greening, 2024 NSSC 57. Following R. v. Goldson, see R. v. Adams, 2023 NBPC 3, paras. [12]–[13], [28]–[33]; R. v. Cardwell, 2022 BCPC 308, para. [5].

[34]  R. c. Brisson, 2020 QCCS 3794.