Her Majesty The Queen v. Attorney General of Quebec, 2012 SCC 57

SUPREME COURT OF CANADA Citation: R. v.

St-Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187 Date: 20121102 Docket: 33970 Between: Her Majesty The Queen and Attorney General of Quebec Appellants and Anic St-Onge Lamoureux Respondent - and - Attorney General of Canada, Attorney General of Ontario, Attorney General of Manitoba, Attorney General of British Columbia, Attorney General of Alberta, Barreau du Québec, Association québécoise des avocats et avocates de la défense, Criminal Lawyers’ Association of Ontario and Criminal Trial Lawyers’ Association Interveners Official English Translation: Reasons of Deschamps J.

Coram: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein and Cromwell JJ. Reasons for Judgment: (paras. 1 to 101) Reasons Dissenting in Part: (paras. 102 to 180) Deschamps J. (McLachlin C.J. and LeBel, Fish and Abella JJ. concurring) Cromwell J. (Rothstein J. concurring) R. v. St-Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187 Her Majesty The Queen and Attorney General of Quebec Appellants v.

Anic St-Onge Lamoureux Respondent and Attorney General of Canada, Attorney General of Ontario, Attorney General of Manitoba, Attorney General of British Columbia, Attorney General of Alberta, Barreau du Québec, Association québécoise des avocats et avocates de la défense, Criminal Lawyers’ Association of Ontario and Criminal Trial Lawyers’ Association Interveners Indexed as: R. v. St-Onge Lamoureux 2012 SCC 57 File No.: 33970. 2011: October 13; 2012: November 2.

Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein and Cromwell JJ. on appeal from the court of québec Constitutional law — Charter of Rights — Presumption of innocence — Statutory amendments affecting evidence that can be adduced to rebut presumption of accuracy and presumptions of identity in context of prosecution for driving with blood alcohol level over legal limit — Exclusion of possibility that “Carter” defence would suffice on its own to cast doubt on breathalyzer test results — Whether new provisions of Criminal Code infringe right to be presumed innocent — If so, whether infringement justified — Criminal Code, R.S.C. 1985, c.

C-46, s. 258(1) (c), (d.01), (d.1) — Tackling Violent Crime Act, S.C. 2008, c. 6 — Canadian Charter of Rights and Freedoms , ss. 1, 11(d) .

Constitutional law — Charter of Rights — Fundamental justice — Right to make full answer and defence — Statutory amendments affecting evidence that can be adduced to rebut presumption of accuracy and presumptions of identity in context of prosecution for driving with blood alcohol level over legal limit — Exclusion of possibility that “Carter” defence would suffice on its own to cast doubt on breathalyzer test results — Whether new provisions of Criminal Code infringe right to make full answer and defence — If so, whether infringement justified — Criminal Code, R.S.C. 1985, c.

C-46, s. 258(1) (c), (d.01), (d.1) — Tackling Violent Crime Act, S.C. 2008, c. 6 — Canadian Charter of Rights and Freedoms , ss. 1, 7 .

Constitutional law — Charter of Rights — Self-incrimination — Statutory amendments affecting evidence that can be adduced to rebut presumption of accuracy and presumptions of identity in context of prosecution for driving with blood alcohol level over legal limit — Exclusion of possibility that “Carter” defence would suffice on its own to cast doubt on breathalyzer test results — Whether new provisions of Criminal Code infringe protection against self-incrimination — If so, whether infringement justified — Criminal Code, R.S.C. 1985, c.

C-46, s. 258(1) (c), (d.01), (d.1) — Tackling Violent Crime Act, S.C. 2008, c. 6 — Canadian Charter of Rights and Freedoms, ss. 1 , 11(c) . 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 ( 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 ),

s. 258(1) (

c) and ( 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. First, 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. Second, 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. The third 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. Per Rothstein and Cromwell JJ. (dissenting in part): The appeal should be allowed and the constitutional questions should be answered in the negative. Sections 258(1) ( c ), 258(1)( d.01 ) and 258(1)( d.1 ) of the Criminal Code are based on three quite straight-forward ideas.

These ideas are that if all of the statutory requirements for taking and analyzing breath samples are observed: (1) the breathalyzer results are reliable in the absence of some basis in the evidence to doubt them; (2) the estimated blood alcohol concentration (“BAC”) arrived at by consumption and elimination evidence (so-called Carter evidence) is not sufficiently reliable to be used to challenge the accuracy of breathalyzer results; and (3) the BAC at the time of testing will not be higher than at the time of driving, unless the accused drank a large quantity of alcohol shortly before driving or consumed alcohol between driving and testing.

None of the challenged provisions limits the right under s. 11(

c) of the Charter not to be compelled to testify. Although allof the provisions are challenged under ss. 7 and 11(

d) of the Charter, the constitutionality of the provisions which address the burden ofproof are best analyzed under s. 11(d), while those which limit the relevance of, or exclude evidence in relation to, particular issues arebest analyzed under s. 7. The fact that s. 258(1)(d.01) of the Criminal Code excludes Carter evidence to challenge the proper functioning or operationof the approved instrument does not violate s. 7 of the Charter. The parties contesting the provision have not shown that s. 258(1)(d.01)limits in any meaningful respect the right to make full answer and defence.

In the face of the compelling evidence presented by theCrown about the generally misleading nature of Carter evidence in relation to the accuracy of the breathalyzer, those challenging theexclusion of this evidence had to advance some evidence suggesting that, despite its great potential to mislead, there remained somereason not to restrict the use of Carter type evidence. There is no such evidence in this record. Although hypothetical scenarios canform the basis of a Charter challenge, they must be reasonable.

The other ground advanced in support of the s. 7 challenge — thats. 258(1)(d.01) makes a defence “illusory” — must also be rejected. Section 258(1)(

c) of the Criminal Code restricts evidence in relation to the accuracy of the device to evidence that tends toshow three things: (1) that the device malfunctioned or the analysis was performed improperly, (2) that the improper performanceresulted in the determination that the accused’s BAC exceeded .08, and (3) that the accused’s BAC was in fact lower than .08 at the timeof the offence. The first two of these elements do nothing more than to recognize the reality that breathalyzer readings, when obtainedunder the statutory requirements, should be taken as accurate absent some reason to think otherwise.

Absent some evidence to suggestthat the analysis is not accurate, a reasonable doubt based simply on the general notion that technology may be fallible or that there is ahypothetical possibility not founded on the evidence that the device malfunctioned or was not operated properly would not be a rationalconclusion. Thus, requiring the inference of accuracy to be drawn absent evidence to the contrary does not limit the right to make fullanswer and defence.

As for the third component, it does no more than set out in statutory form what this Court has consistently held isrequired as a matter of logic and relevance to rebut the presumption of accuracy. A provision limits the right to be presumed innocent guaranteed by s. 11(

d) of the Charter if it either (

a) relieves the Crownof having to present a case to meet before the accused is called on to answer or (

b) creates the risk of conviction even if, without theprovision, the trier of fact could have a reasonable doubt about the accused’s guilt. The presumption of accuracy in s. 258(1)(

c) does notcreate a risk of conviction in the presence of a reasonable doubt about guilt. It therefore does not limit the right to be presumed innocentand there is no need to consider whether any limitation is justified under s. 1 of the Charter. In requiring some evidence tending to showimproper functioning or operation, the provision simply enacts common sense in light of accepted scientific fact. Parliament is entitledto legislate this rather than require the evidence to be called in every “blowing over” prosecution.

Furthermore, in order to constituteevidence to the contrary as a matter of logic and relevance, that evidence must tend to raise a doubt that the BAC in fact did not exceed.08. It follows that this third aspect of s. 258(1)(

c) simply translates that requirement for materiality into the consideration of whether thedevice functioned or was operated improperly. With respect to the presumptions of identity in s. 258(1)(

c) and (d.1) of the Criminal Code, there is overwhelming evidencethat a breathalyzer test administered in accordance with the statutory requirements and which reveals an over .08 result is a reliableindication that the accused had a BAC which was equal to or higher than that at the time of driving. There is no infringement of the rightto be presumed innocent by deeming that the BAC at the time of testing is the same as at the time of driving. Parliament has simplylegislated well-established facts so that they do not have to be proved in every case.

There is no risk of conviction on the basis of areasonable doubt that has a basis in common sense and logic in the evidence or the absence of evidence. A doubt about the presumptionsof identity based on “bolus or intervening drinking” would be speculative, absent evidence supporting the fact that one or the other ofthose scenarios had actually occurred. The fact of post-driving drinking is peculiarly in the knowledge of the accused and it would beunduly onerous to require the prosecution to negate this rather unusual possibility in every case even when it had no foundation in theevidence.

Also, the challenged provisions do not relieve the Crown of its obligation to present a case to meet before the accused is calledon to answer. Where an over .08 breathalyzer test result is obtained in accordance with the statutory requirements, a trial judge cannotconclude that there is no evidence upon which he could reasonably convict an accused person. Even assuming that ss. 258(1)(c), 258(1)(d.01) or 258(1)(d.1) of the Criminal Code limit the right to be presumed innocentas guaranteed by s. 11(

d) of the Charter, any limitation is reasonable and demonstrably justified in a free and democratic society. Cases Cited By Deschamps J. Considered: R. v. Crosthwait, (SCC), [1980] 1 S.C.R. 1089; R. v. St. Pierre, (SCC),[1995] 1 S.C.R. 791; referred to: R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499; R. v. Carter (1985), (ON CA), 19C.C.C. (3d) 174; R. v. Gilbert (1994), (ON CA), 92 C.C.C. (3d) 266; R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3;R. v. Milne (1996), (ON CA), 107 C.C.C. (3d) 118; R. v. Coutts (1999), (ON CA), 45 O.R. (3d) 288;R. v. Huff, [2000] O.J. No. 3487 (QL); R. v.

Powichrowski, 2009 ONCJ 490, 70 C.R. (6th) 376; R. v. Gibson, 2008 SCC 16, [2008] 1S.C.R. 397; R. v. Oakes, (SCC), [1986] 1 S.C.R. 103; R. v. Downey, (SCC), [1992] 2 S.C.R. 10; R. v.Vaillancourt, (SCC), [1987] 2 S.C.R. 636; R. v. Whyte, (SCC), [1988] 2 S.C.R. 3; Dubois v. The Queen, (SCC), [1985] 2 S.C.R. 350; R. v. Hummel (1987), (ON SC), 36 C.C.C. (3d) 8; R. v. Phillips (1988), (ON CA), 42 C.C.C. (3d) 150; R. v. Drolet, 2010 QCCQ 7719, [2010] R.J.Q. 2610; R. v. Edwards Books and Art Ltd., (SCC), [1986] 2 S.C.R. 713; R. v. Chaulk, (SCC), [1990] 3 S.C.R. 1303; Alberta v.

Hutterian Brethrenof Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; R. v. Duff, 2010 ABPC 319, 501 A.R. 122; R. v. Gillespie, 2010 BCPC 207; R. v. Muzuva (2010), 206 C.R.R. (2d) 18; R. v. Cayer, 2010 QCCQ 9352 ; R. v. Laforge, 2010 QCCQ 7718, [2010]R.J.Q. 2537; RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199; R. v. Seaboyer, (SCC), [1991] 2 S.C.R. 577; R. v. Morgentaler, (SCC), [1988] 1 S.C.R. 30; R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411; R. v. Kasim, 2011 ABCA 336, 515 A.R. 254; R. v.

Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443; R. v.Paszczenko, 2010 ONCA 615, 103 O.R. (3d) 424; R. v. Grosse (1996), (ON CA), 29 O.R. (3d) 785; R. v. Hall, 2007ONCA 8, 83 O.R. (3d) 641; R. v. Bulman, 2007 ONCA 169, 221 O.A.C. 210.

By Cromwell J. (dissenting in part) R. v. Carter (1985), (ON CA), 19 C.C.C. (3d) 174; R. v. Gibson, 2008 SCC 16, [2008] 1 S.C.R. 397; R. v.Seaboyer, (SCC), [1991] 2 S.C.R. 577; R. v. Crosthwait, (SCC), [1980] 1 S.C.R. 1089; R. v. St. Pierre, (SCC), [1995] 1 S.C.R. 791; R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499; R. v. Lifchus, (SCC),[1997] 3 S.C.R. 320; Dubois v. The Queen, (SCC), [1985] 2 S.C.R. 350; R. v. Appleby, (SCC), [1972]S.C.R. 303; R. v. Oakes, (SCC), [1986] 1 S.C.R. 103; R. v. Vaillancourt, (SCC), [1987] 2 S.C.R. 636; R.v. Whyte, (SCC), [1988] 2 S.C.R. 3; R. v.

Schwartz, (SCC), [1988] 2 S.C.R. 443; R. v. Bulman, 2007ONCA 169, 221 O.A.C. 210; R. v. Grosse (1996), (ON CA), 29 O.R. (3d) 785; R. v. Hall, 2007 ONCA 8, 83 O.R.(3d) 641; R. v. Paszczenko, 2010 ONCA 615, 103 O.R. (3d) 424. Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(c), (d). Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 51. Criminal Code, R.S.C. 1985, c. C-46, ss. 212(3), 253(1)(b), 254(2), (3), 258(1)(c), (d.01), (d.1), (g), 276. Criminal Law Improvement Act, 1996, S.C. 1997, c. 18, s. 10(2).

Interpretation Act, R.S.C. 1985, c. I-21, s. 25(1). Tackling Violent Crime Act, S.C. 2008, c. 6. Authors Cited Canada. House of Commons. House of Commons Debates, vol. 141, 1st Sess., 39th Parl., January 30, 2007, pp. 6185, 6186. Canada. Senate. Standing Senate Committee on Legal and Constitutional Affairs. Proceedings of the Standing Senate Committee onLegal and Constitutional Affairs, No. 9, 2nd Sess., 39th Parl., February 21, 2008, p. 37. Canadian Society of Forensic Science. “Recommended Standards and Procedures of the Canadian Society of Forensic Science AlcoholTest Committee” (2009), 42 Can. Soc.

Forensic Sci. J. 1. Cross on Evidence, 7th ed. By the late Sir Rupert Cross and Colin Tapper. London: Butterworths, 1990. Hodgson, Brian T. “The Validity of Evidential Breath Alcohol Testing” (2008), 41 Can. Soc. Forensic Sci. J. 83. Martin, T. L., J. G. Wigmore and K. L. Woodall. “A Comparison of Blood Alcohol Concentrations Estimated From Drinking Historiesof Drivers Charged with ‘Over 80’ and Their Intoxilyzer® 5000C Results” (2004), 37 Can. Soc. Forensic Sci. J. 187. Robertson, Robyn, Ward Vanlaar and Herb Simpson. National Survey of Crown Prosecutors and Defence Counsel on ImpairedDriving: Final Report.

Ottawa: Traffic Injury Research Foundation, July 2008. Sommers, Marilyn Sawyer, et al. “‘Nurse, I Only Had a Couple of Beers’: Validity of Self-Reported Drinking Before Serious VehicularInjury” (2002), 11 Am. J. Critical Care 106. Wigmore, J. G. “Man vs. Machine: Self-Reported Alcohol Consumption of Drinking Drivers vs. Evidential Breath Alcohol Tests. Is theRestriction of Evidence to the Contrary Scientifically Valid?” (2009), 54 Crim. L.Q. 395.

APPEAL from a judgment of the Court of Québec (Judge Chapdelaine), 2010 QCCQ 8552, [2010] J.Q. no 10077 (QL),2010 CarswellQue 10716, convicting the accused of driving with a blood alcohol level over the legal limit and upholding in part theconstitutionality of ss. 258(1)(c), (d.01) and (d.1) of the Criminal Code. Appeal allowed in part, Rothstein and Cromwell JJ. dissenting inpart. Michel Déom, Jean-Vincent Lacroix, Marie-Ève Mayer and Patricia Blair, for the appellants. Patrick Fréchette, for the respondent. François Joyal and Ginette Gobeil, for the intervener the Attorney General of Canada. James V.

Palangio and Philip Perlmutter, for the intervener the Attorney General of Ontario. Christian Vanderhooft and Nathaniel Carnegie, for the intervener the Attorney General of Manitoba. Rodney Garson and Roger F. Cutler, for the intervener the Attorney General of British Columbia. Jason R. Russell and Robert Palser, for the intervener the Attorney General of Alberta. Marco LaBrie and Jean-Philippe Marcoux, for the intervener Barreau du Québec. Éric Downs and Julie Bolduc, for the intervener Association québécoise des avocats et avocates de la défense.

Patrick Ducharme and Paul Burstein, for the intervener the Criminal Lawyers’ Association of Ontario.

Shannon K. C. Prithipaul, for the intervener the Criminal Trial Lawyers’ Association. English version of the judgment of McLachlin C.J. and LeBel, Deschamps, Fish and Abella JJ. delivered by [1] Deschamps J. — This appeal concerns the constitutionality of certain provisions of the Criminal Code, R.S.C.1985, c. C-46 (“Cr. C.”), that deal with offences involving driving with a blood alcohol level over the legal limit.

The questions raised init relate to the right to be presumed innocent, the right to make full answer and defence and the protection against self-incrimination(ss. 11(d), 7 and 11(c), respectively, of the Canadian Charter of Rights and Freedoms). [2] The impugned provisions include four new requirements that must be met by a person charged with driving with ablood alcohol level exceeding 80 mg of alcohol in 100 ml of blood (.08) in order to rebut the presumptions that apply in the prosecution’sfavour in such a case.

Three of these requirements relate to the presumption of accuracy and one of the presumptions of identity thatattach to the results of the test to which a person must submit when required to do so by the police.

To challenge the reliability of theresults, the accused must raise a doubt: (1) that the breathalyzer instrument was functioning and was operated properly; (2) to the effectthat the determination that the blood alcohol level of the accused exceeded the legal limit resulted from a malfunction or improperoperation of the instrument; and (3) to the effect that the blood alcohol level of the accused would not in fact have exceeded the legallimit at the time when the offence was alleged to have been committed.

Moreover, a new requirement must now be met in order to rebutthe presumption of identity of the test results showing that the blood alcohol level of the accused exceeded the legal limit with his or heractual blood alcohol level at the time of the alleged offence.

This presumption can be rebutted only if the evidence adduced by theaccused shows that his or her consumption of alcohol was consistent not only with a blood alcohol level under the legal limit at the timeof the offence, but also — and this is the new requirement — with the test results. [3] For the reasons that follow, I find that Parliament was justified in requiring that any evidence adduced to cast doubton the test results be directed at the functioning or operation of the instrument.

However, where such evidence casts doubt on thereliability of the results, the imposition of additional conditions does not constitute a reasonable limit on the right to be presumedinnocent. I would reject all the other constitutional arguments that have been raised. [4] The impugned provisions are one aspect of the broader fight against drinking and driving, a problem that haspreoccupied Parliament and the courts for several decades now. I will therefore begin by reviewing the historical background and thelegislative history of these provisions before inquiring into their validity.

I will conclude by considering the specific case of therespondent. 1. Historical Background [5] In 1969, Parliament made it a criminal offence for a person to operate or have the care of a vehicle while his or herblood alcohol level exceeded .08, and made it mandatory under the Criminal Code to provide breath samples for analysis for the purposeof determining whether that offence had been committed.

Among other things, the relevant provisions required a person stopped by thepolice to provide breath samples and created a mechanism by which those samples would be analyzed by designated technicians usingapproved devices.

Parliament also introduced presumptions (of accuracy and identity) that would apply if certain conditions were metand would make it easier for the prosecution to prove that a person had operated or had the care of a vehicle while his or her bloodalcohol level exceeded the legal limit. [6] According to the presumption of accuracy, the certificate of the technician responsible for the analyses is presumedto provide an accurate determination of the person’s blood alcohol level at the time the breath samples were taken.

According to thefirst presumption of identity, a person’s blood alcohol level as shown by the test is presumed to be the same as his or her blood alcohollevel at the time of the alleged offence. Pursuant to a second presumption of identity added by Parliament in 1997 (Criminal LawImprovement Act, 1996, S.C. 1997, c. 18, s. 10(2)), a blood alcohol level that exceeds .08 at the time of the analyses is presumed to havealso exceeded .08 at the time when the offence was alleged to have been committed (R. v.

Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499,at para. 14). [7] Before the impugned amendments were enacted, the relevant provisions stated that the presumptions could berebutted by producing “evidence to the contrary”. The Ontario Court of Appeal considered the meaning of the expression “evidence tothe contrary” in R. v. Carter (1985), (ON CA), 19 C.C.C. (3d) 174, and R. v. Gilbert (1994), (ONCA), 92 C.C.C. (3d) 266.

It held that, under the provisions in force at the time, the testimony of the accused concerning his or heralcohol consumption, combined with an explanation by a toxicologist of the implications of that consumption, could be tendered as“evidence to the contrary” in order to raise a doubt about the results of the breathalyzer test.

This defence is known as the “Carterdefence” after one of the Ontario Court of Appeal cases mentioned above. [8] In Gilbert, Osborne J.A., although acknowledging the validity of the defence, had expressed doubts about thechances of succeeding with it (at p. 280): An accused who is charged with an offence, the essence of which is that he was driving with an impermissibly highblood-alcohol concentration level must be able to lead evidence as to the quantity of alcohol that he consumed at relevant times.

I do notthink it is necessary that this kind of evidence be accompanied by an attack on the particular breathalyzer machine, or its operator. Itmay well be that without such an attack it may be difficult for an accused to have the tendered evidence accepted to the point of raising areasonable doubt. That, however, does not make the evidence inadmissible generally, or, as I have said, inadmissible because itconstitutes an indirect attack on the breathalyzer or its manner of operation.

Despite these reservations, the Carter defence proved to be effective, as can be seen from the subsequent cases on this issue. [9] Moreover, it was held that the prosecution could not generally use roadside sobriety tests conducted by the policeto incriminate a person who had operated or had the care of a vehicle: R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3, at para. 58; R. v.Milne (1996), (ON CA), 107 C.C.C. (3d) 118 (Ont. C.A.); R. v. Coutts (1999), (ON CA), 45 O.R.(3d) 288 (Ont. C.A.); R. v. Huff, [2000] O.J. No. 3487 (QL) (Ont. C.A.). Furthermore, the results of a breathalyzer test could not be used

to assess the credibility of an accused who raised a Carter defence (Boucher, at paras. 43 and 64). [10] Because of these rules, it was thought by some that the statutory presumptions attaching to breathalyzer test resultsdid not operate as Parliament had intended. In R. v. Powichrowski, 2009 ONCJ 490, 70 C.R. (6th) 376, Judge Duncan described what hesaw as an impasse faced by the prosecution in certain impaired driving cases under the former legislative scheme (at para. 23): An indirect result of the development of the case law, particularly R. c.

Boucher as interpreted and distinguished in R. v.Snider (2006), 31 M.V.R. (5th) 296 (Ont. C.J.) and subsequent decisions, was that in cases involving a Carter defence, prosecutors partlyabandoned

section 258 and attempted to prove their cases the long way around without aid of the statutory presumption of accuracy or,more precisely, the burden of its accompanying jurisprudence. Ironically then, the very legislation that was designed to facilitate proofof the prohibited condition in order to help combat the menace of drinking and driving had become an obstacle to be avoided by theprosecution. [11] These difficulties were well known. In a 2006 report prepared for the Department of Justice, Brian T.

Hodgson, aforensic toxicology consultant, stressed the importance of re-establishing the primacy of the test results: For the continuing use of the statutory legal limit enunciated in subsection 253(

b) CCC, over 80, the law needs toreestablish the primacy of scientific evidential results. The defence of “evidence to the contrary” needs to be directed specifically to thefactors that impact on the evidential breath alcohol results such as: deficiencies in the test process and/or the drinking patterns of theaccused just prior to the time of offence (within 30 minutes) or drinking after the time of offence but before the time of testing.

TheSupreme Court’s acceptance of the subjective, non-scientific statements of an accused person about his drinking history leading up to thetime of offence without reference to the scientific evidential results is incompatible with the scientific basis of 253(

b) CCC. [Emphasisadded.] (“The Validity of Evidential Breath Alcohol Testing” (2008), 41 Can. Soc. Forensic Sci.

J. 83, at p. 94) [12] On January 30, 2007, Rob Moore, the Parliamentary Secretary to the Minister of Justice, gave an overview ofBill C-32’s restrictions on the type of “evidence to the contrary” that can be tendered to defend against a charge of impaired driving: Probably the most important change in this bill is the proposal to ensure that only scientifically valid defences can be usedwhere a person is accused of driving with a concentration of alcohol exceeding 80 milligrams in 100 millilitres of blood.

This is knownas driving over 80. (House of Commons Debates, vol. 141, 1st Sess., 39th Parl., January 30, 2007, at p. 6185) [13] Bill C-32 died on the Order Paper, however. Then, on October 18, 2007, the government introduced Bill C-2,entitled the Tackling Violent Crime Act. Bill C-2 essentially reproduced Bill C-32’s restrictions on evidence to the contrary that wouldbe admissible at a trial involving a charge of driving with a blood alcohol level over the legal limit. The Tackling Violent Crime Act(S.C. 2008, c. 6) was assented to on February 28, 2008.

Four of the requirements at issue in this appeal came into force on July 2, 2008,while the fifth dates back to 1997. All the provisions in question are reproduced in the Appendix. 2. Changes Resulting from the New Provisions [14] Before beginning the constitutional analysis, I should explain how the scheme applicable to prosecutions for drivingwith a blood alcohol level over the legal limit has been restructured by the statutory amendments. 2.1 Presumptions [15] Before 2008, it was settled law that s. 258 Cr. C. established two presumptions of identity and one presumption ofaccuracy.

The amendments have not changed the nature of these presumptions. Section 258(1)(

c) Cr. C. establishes a presumption ofaccuracy of the results of the analyses, and a presumption of identity according to which the results are presumed to correspond to theblood alcohol level of the accused at the time of the alleged offence. (In the past, this Court placed the presumption of accuracy ins. 258(1)(

g) Cr. C. However, the 2008 amendments indicate clearly that Parliament intended them to apply to both the presumption ofaccuracy and the presumptions of identity, and that it was also incorporating the presumption of accuracy into s. 258(1)(c).) Section 258(1)(d.1) Cr. C. establishes a second presumption of identity according to which a blood alcohol level over .08 at the time ofthe analysis is presumed to be the same as the blood alcohol level of the accused at the time of the alleged offence. 2.2 Standard of Proof [16] Nor has the standard of proof that must be met to rebut the presumptions been changed.

In R. v. Crosthwait, (SCC), [1980] 1 S.C.R. 1089, this Court stated that evidence to the contrary tendered by the accused in respect of the testresults was sufficient if it raised a reasonable doubt. In R. v. Gibson, 2008 SCC 16, [2008] 1 S.C.R. 397, the Court held that the twoexpressions “evidence tending to show” and “evidence to the contrary” gave rise to the same standard: reasonable doubt (para. 17). Theuse of the word “conclusive” in s. 258(1)(

c) Cr. C. does not mean that the presumptions are irrebuttable, as evidence to the contrary canstill be presented to counter them. 2.3 Evidence [17] The statutory amendments affect the evidence that can be adduced to rebut the presumption of accuracy and the firstpresumption of identity. The combined effect of the requirements set out in s. 258(1)(

c) and s. 258(1)(d.01) Cr. C. is to preclude theCarter defence in its previous form. The accused can no longer simply present a Carter defence. Rather, he or she must (1) raise adoubt that the instrument was functioning or was operated properly, (2) show that the malfunction or improper operation of theinstrument resulted in the determination that his or her blood alcohol level exceeded the legal limit, and (3) show that his or her bloodalcohol level would not in fact have exceeded that limit at the time when the offence was alleged to have been committed. I cannot

accept the

interpretation according to which the third of these requirements from s. 258(1)(

c) Cr. C. is not in fact a distinct requirementbut follows from proof of the first two (Powichrowski, at para. 31). The wording of the English version of the provision makes it clearthat this third requirement is indeed a separate one: the accused must produce evidence tending to show “three things”. Under theprovisions as amended, mere evidence that a deficiency in the test process led to a result over .08 is not enough; Parliament also requiresthat the evidence raise a doubt that the blood alcohol level of the accused in fact exceeded .08.

Whereas the evidence needed to satisfythe first two requirements relates to circumstances directly associated with the taking of samples using the instrument, a Carter defencewill usually be needed to satisfy the third. [18] In short, although the Carter defence may formerly have been sufficient to rebut the presumption of accuracy andthe first presumption of identity, this is no longer the case.

Two additional requirements must now be satisfied. [19] Where an accused challenges the second presumption of identity — according to which, if a person’s blood alcohollevel exceeds .08 at the time of the analysis, the same is presumed to have been true at the time of the offence (s. 258(1)(d.1) Cr. C.) —he or she is not challenging the test results.

Rather, the accused is arguing that, because he or she consumed alcohol shortly before thesamples were taken, the result indicating a level exceeding .08 does not correspond to his or her blood alcohol level at the time when theoffence was alleged to have been committed. Under the new provisions, the accused can rebut this presumption only by showing that hisor her consumption of alcohol was consistent both with a blood alcohol level not exceeding .08 at the time of the offence and with theresults of the breathalyzer test. A Carter defence is therefore required to discharge this burden. 3.

Issues [20] Three statutory provisions are in issue, and several arguments are raised against each of them. I will proceed asfollows: First, I will consider whether the three requirements provided for in s. 258(1)(

c) and clarified by s. 258(1)(d.01) are consistentwith the right to be presumed innocent. Because I conclude that the second and third requirements are invalid, only the first requirementwill then have to be reviewed in relation to the right to make full answer and defence. The arguments concerning the protection againstself-incrimination will not be considered in relation to s. 258(1)(

c) and s. 258(1)(d.01) Cr. C., because they do not apply to them in lightof my conclusions with respect to those provisions. I will then consider whether the two requirements established in s. 258(1)(d.1) arevalid having regard to the right to be presumed innocent and the protection against self-incrimination. Finally, I will review the trialjudge’s decision and reasons in this case. 4. Compatibility of Section 258(1)(

c) and Section 258(1)(d.01) with the Right to Be Presumed Innocent (Section 11(

d) of the Charter) 4.1 Do these Provisions Infringe the Protected Right? [21] If the conditions for the taking of breath samples set out in s. 258(1)(

c) are met, the trial judge must find that the testresults adduced in evidence by the prosecution are, as indicated in that same provision, conclusive proof, for the purposes of the charge,of the blood alcohol level of the accused both at the time when the analyses were made and at the time when the offence was alleged tohave been committed unless the accused succeeds in rebutting the presumptions of accuracy and identity. [22] In R. v. Oakes, (SCC), [1986] 1 S.C.R. 103, and in several subsequent cases, the Court consideredstatutory presumptions adopted to facilitate the prosecution’s task.

Under the statutory provision at issue in Oakes, possession of anarcotic gave rise to a presumption against the accused that he or she had the intention to traffic in that substance. The prosecution wasthus exempted from proving an essential element of the offence, namely the intention to traffic in a narcotic, and the onus was on thedefence to disprove this element. Another presumption was considered in R. v. Downey, (SCC), [1992] 2 S.C.R. 10. Under s. 195(2) Cr.

C. (now s. 212(3)), living with or being habitually in the company of prostitutes gave rise to a presumption that theperson in question was living on the avails of prostitution. Like the provision at issue in Oakes, the one at issue in Downey required thedefence to raise a doubt with respect to an essential element of the offence. [23] The statutory presumptions established in s. 258(1)(

c) Cr. C. operate differently than the ones at issue in Oakes andDowney. Section 258(1)(

c) does not exempt the prosecution from proving that the blood alcohol level of the accused exceeded the legallimit, which is an essential element of the offence. However, in proving this essential element, the prosecution can rely on the testresults without having to prove that they are valid.

In sum, although the prosecution is not exempted from proving an essential elementof the offence, the accused must nevertheless raise a doubt about a fact that the prosecution has not established in accordance with therules of criminal evidence. [24] A statutory presumption violates the right to be presumed innocent if its effect is that an accused person can beconvicted even though the trier of fact has a reasonable doubt (R. v. Vaillancourt, (SCC), [1987] 2 S.C.R. 636, atpp. 654-56; Downey, at p. 21). In R. v.

Whyte, (SCC), [1988] 2 S.C.R. 3, the Court stressed that the distinction betweenelements of the offence and other aspects of the charge is irrelevant to the analysis regarding the right to be presumed innocent. “If anaccused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the presumption ofinnocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused”(p. 18).

What is important for the purpose of determining whether the right to be presumed innocent is violated is not whether thestatutory presumption relates to an essential element of the offence, but whether it exempts the prosecution from establishing the guilt ofthe accused beyond a reasonable doubt before the accused must respond (Oakes, at p. 121; Dubois v. The Queen, (SCC),[1985] 2 S.C.R. 350, at p. 357). Thus, like the presumption at issue in Oakes, the ones established in s. 258(1)(

c) will violate the right tobe presumed innocent if they can result in the conviction of an accused in spite of a reasonable doubt that the accused is in fact guilty. [25] It is therefore necessary to inquire into the effect of the presumptions of accuracy and identity provided for ins. 258(1)(

c) Cr. C. The expert evidence filed in the instant case reveals that the possibility of an instrument malfunctioning or being usedimproperly when breath samples are taken is not merely speculative, but is very real. The Alcohol Test Committee (“Committee”) of theCanadian Society of Forensic Science (“CSFS”) has made a series of recommendations concerning the procedures to be followed by theprofessionals who operate the instruments and verify that they are properly maintained: “Recommended Standards and Procedures ofthe Canadian Society of Forensic Science Alcohol Test Committee” (2009), 42 Can. Soc. Forensic Sci. J. 1. The Committee states that

before collecting a breath sample, the qualified technician must, among other things, observe the test subject for 15 minutes, conduct asystem blank test and a system calibration check, and verify the temperature of the alcohol standard, and that the alcohol standard mustbe changed after a certain number of calibration checks. The Committee also recommends that approved instruments be inspected on anannual basis to ensure that they continue to meet the manufacturer’s technical specifications.

According to the Committee, thecalibration and maintenance of instruments are essential “to the integrity of the breath test program” (p. 14). [26] The Committee’s recommendations shed light on the circumstances that might explain how an instrumentmalfunctioned or was used improperly. Thus, human error can occur when samples are taken and at various steps in the maintenance ofthe instruments, which, it should be mentioned, are used Canada-wide.

Hodgson’s report, which the prosecution itself relied on as asource of the statutory amendments, refers to the importance of proper operation and maintenance: . . . to achieve scientifically sound results in operational use, user agencies must ensure that approved instruments areoperated by qualified personnel using procedures based on good laboratory practice. [p. 83] Moreover, Parliament recognized the importance of following such practices and procedures in s. 258(1)(

c) and s. 258(1)(d.01), since theaccused can rebut the presumptions by showing that the instrument was not properly maintained or operated. [27] However, Parliament did not adopt the Committee’s recommendations, and the prosecution referred to no alternativemechanisms that would enable a court to find that the instruments are generally maintained and operated properly or that the rate offailure attributable to improper maintenance or operation is insignificant.

The trier of fact could therefore entertain a reasonable doubtabout 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 ontrial. But a judge who entertains such a doubt will nevertheless remain bound by the statutory presumptions and will be required toconvict the accused unless the accused rebuts those presumptions in accordance with the requirements of s. 258(1)(c). In view of themechanism for applying the statutory presumptions established in s. 258(1)(c), I find that s. 258(1)(

c) and s. 258(1)(d.01) infringes. 11(

d) of the Charter. [28] I wish to stress, however, that it is not because the test results could differ from the blood alcohol level of theaccused at the time of the alleged offence that s. 258(1)(

c) infringes the right to be presumed innocent. Rather, the infringement lies inthe fact that, as Parliament recognized, the instruments can malfunction or be operated improperly, and therefore that the trier of factcould have a reasonable doubt about the guilt of the accused where the only evidence before him or her consists of the test results. [29] A clear distinction must be drawn between the stage of determining whether protected rights have been infringed andthat of determining whether the infringement is justified. Parliament may have had good reasons for enacting the legislation in question.

For instance, the fact that evidence based on DNA analysis is scientifically reliable does not mean that taking DNA samples does notinfringe a protected right. If the measures adopted by Parliament infringe Charter rights, the court determining whether the impugnedmeasures are constitutional must consider the justification given for them. 4.2 Is the Infringement Justified? [30] This Court has recognized in a number of cases that a statutory presumption that infringes s. 11(

d) of the Charter cannevertheless be justified under s. 1 of the Charter: Whyte; Downey; R. v. Hummel (1987), (ON SC), 36 C.C.C. (3d) 8(Ont. H.C.J.); R. v. Phillips (1988), (ON CA), 42 C.C.C. (3d) 150 (Ont. C.A.).

According to the principles stated inthose cases, the means available to the accused to rebut the presumption are relevant at the stage of justifying the infringement. [31] Whether a statutory presumption can be justified under s. 1 depends on several factors, including the importance ofthe legislative objective, how difficult it would be for the prosecution to prove the substituted fact beyond a reasonable doubt, whether itis possible, and how easy it is, for the accused to rebut the presumption, and, as can be seen from the instant case, scientific advances. [32] The test for determining whether a statutory provision that infringes a Charter right can nevertheless be justifiedunder s. 1 is well known.

It was established in Oakes. [33] Parliament’s decision to resort to the presumptions of accuracy and identity to help combat the problems resultingfrom drinking and driving is not at issue in this appeal; rather, what are at issue are the means available to rebut those presumptions. Parliament intended to limit the evidence that can be adduced to raise a reasonable doubt about the reliability of the test results.

As canbe seen from the legislative history, the objective of the amendments, which form part of a scheme whose purpose is to “reduc[e] thecarnage caused by impaired driving” (Orbanski, at para. 55), was to give the reliability of the test results a weight consistent with theirscientific value. [34] The reliability of breathalyzer tests was explicitly mentioned in the abstract of Hodgson’s report: The scientific basis for evidential breath alcohol testing is well established.

Experiments derived from a recognizedscientific law in physics have proven the scientific validity of breath analysis to determine alcohol concentration in the blood. Instruments designed to measure breath alcohol content are based on technology that is capable of producing scientifically sound results. Like Canada, every country that embarks on evidential breath alcohol analysis subjects these instruments to a rigorous evaluationprocess.

These processes determine whether the instruments meet the scientific standards for accuracy, precision, reliability andspecificity. [p. 83] [35] Specific evidence concerning the reliability of the Alco-Sensor IV-RBT IV and Intoxilyzer 5000C instruments wasfirst adduced in R. v. Drolet, 2010 QCCQ 7719, [2010] R.J.Q. 2610, a case also heard by Judge Chapdelaine, who presided over therespondent’s trial. The parties consented to the filing of that evidence in the case at bar (2010 QCCQ 8552 ).

In Drolet,Judge Chapdelaine found that, as a whole, the scientific evidence produced by the Attorney General of Quebec, the Barreau du Québecand the Association québécoise des avocats et avocates de la défense provided [translation] “ample” proof of the reliability of theinstruments in question (para. 189).

[36] Both Hodgson’s report and the comments of Judge Duncan in Powichrowski illustrate the problems associated withevidence of breathalyzer test results under the former legislative scheme: such evidence could be rejected on the basis of the testimonyof the accused, which was sometimes characterized as subjective recollection. Because it was hard to rely on the test results as effectiveevidence, the presumptions were less useful than they might have been, and the prosecution was hindered in its efforts to combatdrinking and driving.

I find that the objective of the amendments — to give the results a weight consistent with their scientific value —is pressing and substantial. As I have already mentioned, however, the three requirements of s. 258(1)(

c) are in fact separate, andcumulative. I will consider them separately for the remainder of the justification analysis under s. 1 of the Charter. 4.2.1 Evidence of the Malfunction or Improper Operation of the Instrument [37] Once the objective has been found to be valid, the Oakes test requires that a rational connection be establishedbetween the objective and the means adopted to attain it. It is clear from the words of s. 258(1)(

c) and s. 258(1)(d.01) Cr. C. thatevidence relating directly to the instrument itself or to its operation is now required in order to cast doubt on the reliability of breathalyzertest results. A mere inference based on an individual’s rate of absorption or elimination of alcohol, which is what was required for aCarter defence, is no longer enough.

The accused must now raise a doubt that the instrument was functioning or was operated properly. [38] In my opinion, the requirement that the accused adduce evidence concerning the functioning or operation of theinstrument is rationally connected with Parliament’s objective. According to the scientific evidence on which Parliament relied, if theinstrument functions properly and all the relevant procedures are followed, the results should be reliable.

It is therefore logical toprovide that the results can be challenged only by raising problems that can be objectively identified and that relate to possibledeficiencies in the instrument itself or in the procedure followed in operating it. [39] In addition to establishing a rational connection, the appellants had to show that the measure violates the right to bepresumed innocent as little as reasonably possible (R. v. Edwards Books and Art Ltd., (SCC), [1986] 2 S.C.R. 713, atp. 772). In the minimal impairment inquiry, the court must not second-guess Parliament and try to identify the least intrusive solution.

In Downey, this Court stated that “Parliament is not required to choose the absolutely least intrusive alternative in order to satisfy thisbranch of the analysis. Rather the issue is ‘whether Parliament could reasonably have chosen an alternative means which would haveachieved the identified objective as effectively’” (p. 37, quoting R. v. Chaulk, (SCC), [1990] 3 S.C.R. 1303, at p. 1341). The latitude accorded to Parliament depends largely on the context.

Hence, penal legislation that directly threatens a person’s libertywill be assessed differently than a complex regulatory response to a social problem (Alberta v. Hutterian Brethren of Wilson Colony,2009 SCC 37, [2009] 2 S.C.R. 567, at paras. 35 and 37). [40] The reliability of breathalyzer tests has been recognized in Hodgson’s report, as well as by expert witnesses acrossthe country (for example, Brian Image, James Wigmore, Kerry Blake and Robert Langille), by several courts (the Alberta ProvincialCourt in R. v. Duff, 2010 ABPC 319, 501 A.R. 122, the British Columbia Provincial Court in R. v.

Gillespie, 2010 BCPC 207 ,the Ontario Court of Justice in Powichrowski and in R. v. Muzuva (2010), 206 C.R.R. (2d) 18, and the Court of Québec in R. v. Cayer,2010 QCCQ 9352 ), and by the judge who heard the respondent’s case. Thus, the validity of Parliament’s chosen method issupported by scientific evidence that is accepted by the scientific and legal communities. [41] It should also be mentioned that the new provisions do not make it impossible to disprove the test results.

Rather,Parliament has recognized that the results will be reliable only if the instruments are operated and maintained properly, and that theremight be deficiencies in the maintenance of the instruments or in the test process. What the new provisions require is that evidencetending to cast doubt on the reliability of the results relate directly to such deficiencies. [42] Since the nature and scope of the evidence that might be considered relevant has not been argued on this appeal, itwould not be appropriate to rule on the specific limits of that evidence.

I will merely note that, in light of the evidence accepted by thetrial judge, there are several pieces of evidence that can be provided to a person who is charged under s. 253(1)(

b) Cr. C., including thebreathalyzer readings, the qualified technician’s certificate and the analyst’s certificate concerning the sample of the alcohol standard. [43] In its recommendations, the CSFS Committee also suggested mechanisms for ensuring that the instruments functionproperly and for assuring the quality of breath alcohol analyses.

It can be inferred from these recommendations that the instruments maynot function optimally if the suggested procedures are not followed. [44] The Barreau du Québec and the Association québécoise des avocats et avocates de la défense argue on the basis ofJudge Lortie’s decision in R. v. Laforge, 2010 QCCQ 7718, [2010] R.J.Q. 2537, that Parliament could have opted for a less intrusivestatutory amendment.

In Laforge, Judge Lortie expressed the view that Parliament could simply have allowed the accused to present aCarter defence, but authorized the trier of fact to assess the credibility of the accused in light of the breathalyzer test results (atpara. 272): [translation] Bill C-2 was clearly meant to be a response to Boucher, in which it was held that breathalyzer test resultscould not be considered in assessing credibility. In this context, Parliament could have amended the legislation to authorize such anassessment.

Thus, the trial judge would exercise his or her discretion and assess the consumption theory of the accused in light of theevidence as a whole. In other words, a St. Pierre amendment that is less intrusive and would be held to be valid by the courts. [45] The scientific data presented at the time of the enactment of the new provisions show that Parliament intended to domore than simply adjust the wording that had been interpreted in Boucher.

Apart from the theoretical difficulties involved in assessingthe credibility of the accused on the basis of test results that are presumed to be accurate, returning to a Carter defence would make itimpossible to meet Parliament’s objective. Absent statutory provisions to the effect that the results are to prevail, judges would still befaced with the problem the amendments were actually intended to solve.

If the testimony of the accused concerning his or herconsumption of alcohol were accepted, it could raise a reasonable doubt about the reliability of the test results despite the fact that it hasnow been shown that the success rate of this defence is hard to justify in light of the scientific reliability of the instruments. It wasappropriate for Parliament to enact provisions that would spare the prosecution the burden of tendering evidence of scientific reliabilityin every case.

[46] I accordingly conclude that requiring evidence aimed at establishing that the instrument malfunctioned or wasoperated improperly satisfies the minimal impairment test. [47] What remains to be determined is whether the advantages of this requirement outweigh its disadvantages. For this,it is necessary to examine the consequences of the measure. The limits that flow from the requirement have a significant effect on thedefences available to the accused, as it is now more difficult to rebut the presumptions. The evidence to be adduced is more complex.

The accused must retain a technician or an expert to determine whether the instrument malfunctioned or was operated improperly. It isimpossible for a layperson to do this. However, it should be borne in mind that the Carter defence also required the accused to retain anexpert. [48] The prosecution gains a clear, albeit limited, advantage from the requirement, since evidence to the contrary islimited to the real issue: whether the test results are reliable. The evidence to be tendered relates directly to an instrument that is underthe prosecution’s control.

The prosecution must of course disclose certain information concerning the maintenance and operation of theinstrument, but it is free to establish procedures for tracking how such instruments are maintained and operated. Moreover, theprosecution has control over the people who maintain and operate the instruments. [49] At first glance, the advantages of limiting the evidence the accused can adduce in order to rebut the presumptions toevidence that the instrument malfunctioned or was operated improperly appear to outweigh the disadvantages of this measure.

However,since this particular requirement forms part of a broader legislative scheme, I must consider the other requirements before concludingthat it is justified. 4.2.2 Connection Between the Deficiency and the Determination of a Level Exceeding .08 [50] Section 258(1)(

c) Cr. C. requires evidence tending to show not only that the instrument was malfunctioning or wasoperated improperly, but also that the malfunction or improper operation resulted in a reading according to which the blood alcohol levelof the accused exceeded .08. This requirement furthers Parliament’s objective of giving greater weight to the test results and thus passesthe rational connection test. [51] Whether the impairment resulting from this requirement is minimal is open to debate.

The accused must prove thatif his or her blood alcohol level exceeded the allowable maximum, it was because the instrument malfunctioned or was operatedimproperly. The burden of doing so seems at first glance to be quite heavy. No expert evidence was adduced to show how thisconnection can be proved. It is conceivable that evidence that an instrument has produced erratic results could raise a doubt that theresults concerning an accused are reliable.

However, it would be difficult for the accused to identify a specific malfunction and provethat it resulted in a reading according to which his or her blood alcohol level exceeded the legal limit.

One can only speculate about thetype of expert evidence the accused would need to produce for this purpose, but it would certainly have to be much more specific thanthe evidence needed to prove that the instrument was malfunctioning or was operated improperly. [52] At this step in the defence process, it must be accepted that the judge will not consider evidence showing aconnection between a deficiency and the determination that the blood alcohol level of the accused exceeded the legal limit unless theaccused has already proved that the instrument was malfunctioning or was operated improperly.

At this stage, if the arguments made bythe defence are frivolous or trivial, they will not cast doubt on the proper functioning or operation of the instrument, and the defencemust fail. The facts of Crosthwait provide a good illustration of this. In that case, the accused had tried to raise a doubt that theinstrument had functioned properly by arguing that the technician had not compared the air temperature with the temperature of thesolution before making the analyses.

The mere possibility that the instrument had malfunctioned was not evidence to the contrary thatcould cast doubt on the reliability of the results. [53] Thus, it is necessary to proceed on the basis that the accused must not simply show that a deficiency is possible, butraise a real doubt that the instrument was functioning or operated properly. In short, if Parliament’s objective was to eliminate frivolouscases, that objective would be achieved through the assessment of the evidence by the trier of fact.

To enable the prosecution to benefitfrom the presumptions even though a real doubt has been raised about the results of breathalyzer tests amounts in practice to a reverseonus. Iacobucci J.’s comments in R. v. St.

Pierre, (SCC), [1995] 1 S.C.R. 791, at par. 56, regarding the presumption ofidentity are very relevant here: If this position is accepted, and the materiality of the evidence of the accused depends upon reference to the legal limit, agrey area exists between the breathalyzer result and the legal limit, and the burden of clarifying this will be placed on the accused when,in fact, the burden should rest with the Crown to prove its case. [54] I note that in St.

Pierre, the Court commented on the rules with respect to the evidence to the contrary that theaccused had to adduce to rebut the presumption of accuracy and distinguished that evidence from the evidence needed to rebut thepresumption of identity. But Iacobucci J.’s comments on the presumption of accuracy were based on the conclusions from Crosthwait,in which Pigeon J. had held that to rebut the presumption of accuracy, the accused had to raise a reasonable doubt “as to [his or her]blood alcohol content . . . being over the allowable maximum” (p. 1101).

However, not only was it not argued in Crosthwait that theright to be presumed innocent had been infringed, but Pigeon J.’s comment was premised on the fact that “any evidence tending toinvalidate the result of the tests [could thus] be adduced on behalf of the accused in order to dispute the charge against him” (p. 1100(emphasis added)). The context of the new provisions is completely different. To satisfy the second requirement and raise a doubt thathis or her blood alcohol level exceeded the allowable maximum, an accused cannot rely on his or her consumption of alcohol(s. 258(1)(d.01) Cr.

C.). [55] The presumption of accuracy was not at issue in St. Pierre. Nevertheless, I note that the legislative context of thispresumption was the same in that case as in Crosthwait, that is, it could be rebutted by “evidence to the contrary” (s. 25(1) of theInterpretation Act, R.S.C. 1985, c. I-21, as applicable to s. 258(1)(

g) Cr. C.; see Crosthwait, at pp. 1099-1100). Moreover, this Court hasnot had to consider the constitutionality of the presumption of accuracy until now. I therefore endorse, in the context of the newprovisions on the presumption of accuracy, the following comment that Arbour J.A. had made in dissent in St. Pierre, and with which

Iacobucci J. agreed (at para. 22): To the extent that Crosthwait, supra, held that “evidence to the contrary” in s. 258(1)(

c) means evidence tending to showthat the accused’s blood alcohol content at the time of the offence was below the permissible limit, it should not be applied in a case suchas the present one. [para. 21] [56] Insofar as the majority in St. Pierre followed the approach adopted by Pigeon J. in Crosthwait with respect to therequirement that the accused show that his or her blood alcohol level did not exceed .08 in order to rebut the presumption of accuracy,their reasons must be reconsidered to take the constitutional argument into account.

Although the requirement that the accused raise adoubt that his or her blood alcohol level in fact exceeded .08 could be justified when there were no limits on the evidence the defencecould tender to cast doubt on the test results, it constitutes an excessive burden in the context of a statutory scheme under which theevidence must relate directly to the functioning or operation of the instrument. [57] A consideration of the advantages and disadvantages of the second requirement of s. 258(1)(

c) reinforces theconclusion that this requirement is not justified. Requiring that a connection be established between the deficiency in the functioning oroperation of the instrument and the determination that the blood alcohol level of the accused exceeded the legal limit increases theburden on the defence significantly without reducing the expense to the prosecution. In St. Pierre, L’Heureux-Dubé J., dissenting,stressed that Parliament had established the presumption in s. 258(1)(

c) Cr. C. “in clear recognition of the difficulty and expense ofrequiring expert evidence in virtually every alcohol-related driving offence” (para. 90). The scheme that has existed since the statutoryamendments came into force is designed to require the prosecution to adduce technical evidence to counter an attempt to rebut thepresumption of accuracy or the first presumption of identity. An accused who produces evidence to rebut one of these presumptions willdo so by calling an expert, and the prosecution will have to call a technician, and possibly an expert.

As a result, being the party that hasto prove that there is no connection after the accused has adduced evidence to show that the instrument malfunctioned or was operatedimproperly does not impose a significant additional burden on the prosecution. [58] Moreover, it is important to note that, where the accused raises a reasonable doubt that the instrument functioned orwas operated properly, this simply means that the prosecution loses the benefit of the presumptions under s. 258(1)(c).

The prosecutioncan still tender additional evidence to prove that, despite the proven deficiency, the blood alcohol level of the accused exceeded .08 asshown by the test results. [59] In these circumstances, having regard to Parliament’s objective of giving priority to the reliability of the test results,I conclude that requiring an accused to prove not only a malfunction or improper operation of the instrument that is serious enough toraise a reasonable doubt, but also a causal connection between that malfunction or improper operation and the determination that theblood alcohol level of the accused exceeded the legal limit, constitutes a serious infringement of the right to be presumed innocent.

Thisinfringement cannot be justified in a democratic society. 4.2.3 Evidence of a Blood Alcohol Level Not Exceeding .08 [60] Section 258(1)(

c) Cr. C. also requires the accused to adduce evidence tending to show that his or her blood alcohollevel would not in fact have exceeded .08 at the time of the offence. Such evidence will generally be that of a Carter defence. [61] In Oakes, this Court stressed that legislative measures adopted for the purpose of attaining an objective must be“carefully designed to achieve the objective in question” (p. 139).

If Parliament’s objective were simply to ease the burden theprosecution must discharge in combatting the problems associated with drinking and driving, the rational connection would be clear,since this provision requires the accused to raise an additional doubt about his or her guilt. [62] As the legislative facts show, however, Parliament’s objective is not stated in such general terms that it canencompass all measures taken to combat drinking and driving. Moreover, care must be taken not to state the objective too broadly: RJR-MacDonald Inc. v.

Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199, at para. 144. As I mentioned above,the objective was to give the test results a weight consistent with their scientific value. In this context, I do not see a rational connectionbetween this objective and the requirement of adducing evidence to raise a doubt that the blood alcohol level of the accused in factexceeded .08.

Such evidence is not aimed directly either at the process of taking samples using authorized instruments or at the testresults. [63] The inquiry into whether the impairment of the right to be presumed innocent is minimal confirms that therequirement of evidence that the blood alcohol level of the accused was under the legal limit is not justified. I reiterate that thisrequirement is in addition to the requirement of showing that the instrument malfunctioned or was operated improperly.

If the accusedhas already identified a defect that could cast doubt on the reliability of the results, it is difficult to justify requiring the court tonevertheless accept that the results have probative value if the accused has produced no evidence regarding his or her blood alcohollevel. This amounts to saying that, where a court has a doubt about an essential element of the offence, it must nevertheless convictunless the accused can present evidence tending to show that he or she is innocent. I accordingly find that the third requirement ofs. 258(1)(

c) cannot be justified under s. 1 of the Charter. 4.2.4 Conclusion Concerning the First Requirement [64] In light of my conclusion that the second and third requirements are not justified, the first requirement is the only onethat can limit the evidence an accused may tender to cast doubt on the test results. What therefore remains to be determined is whetherthe effects of this limit on the right to be presumed innocent are proportional to Parliament’s objective.

In the proportionality analysisrequired by s. 1, it is important to consider the impugned provision in the context of the entire legislative scheme of which it forms a part. [65] In Downey, Cory J. explained that in determining whether an infringement is proportional to the legislativeobjective, it is necessary to balance societal and individual interests (p. 38). The objective of the first requirement of s. 258(1)(

c) Cr. C.,as clarified by s. 258(1)(d.01), is to confirm the scientific value and ensure the primacy of breathalyzer test results. The purpose of thisstatutory amendment was to remedy a situation that was common before it came into force: test results could be rejected on the basis of

testimony that was considered subjective. The amendment was a response to the serious disconnect that existed in the fact that theCarter defence had a high success rate despite the recognized scientific reliability of the results. [66] Moreover, the scheme adopted for breathalyzer tests includes certain guarantees that place limits on police actionand protect the presumption of innocence. Under s. 254(2) Cr.

C., for example, a peace officer may not require a person who hasoperated or had the care or control of a vehicle to perform physical co-ordination tests unless the officer has reasonable grounds tosuspect that the person has consumed alcohol. Under s. 254(3) Cr. C., an officer may not require a person to submit to a breathalyzertest unless the officer has reasonable grounds to believe that the person is committing, or has at any time within the preceding threehours committed, the offence of driving or having care of a vehicle with a blood alcohol level exceeding .08.

The breath samples mustbe analyzed by a qualified technician using an approved instrument. The samples must be taken not later than two hours after the timewhen the offence is alleged to have been committed, and with an interval of at least 15 minutes between the times when they are taken(s. 258(1)(c)(ii) Cr. C.). [67] From this perspective, if the second and third requirements provided for in s. 258(1)(

c) Cr. C. are severed, I considerParliament’s response to be a measured one. In light of the objective of this provision, the scientific evidence in the record and theguarantees that form part of the evidential blood alcohol analysis scheme, I find that the limit on defences that is established in s. 258(1)(

c) and s. 258(1)(d.01) Cr. C. is a justified infringement of the right to be presumed innocent. As a result of this conclusion, myconsideration of the other arguments against finding s. 258(1)(

c) and s. 258(1)(d.01) to be constitutional will be limited to thisrequirement. 5. Compatibility of Section 258(1)(

c) and Section 258(1)(d.01) with the Right to Make Full Answer and Defence (Section 7 of theCharter) [68] The first argument based on s. 7 of the Charter is that the combined effect of s. 258(1)(

c) and s. 258(1)(d.01) Cr. C.is to limit the right to make full answer and defence. [69] In enacting the impugned provisions, Parliament excluded evidence of the alcohol consumption of the accusedinsofar as it is adduced to show that the instrument was malfunctioning or was operated improperly (s. 258(1)(d.01)). Moreover, thepresumption of accuracy of the results and that of identity can be rebutted only by casting doubt on the proper functioning or operation ofthe instrument. In other words, evidence of the alcohol consumption of the accused is not legally sufficient to raise a doubt unders. 258(1)(

c) as to the reliability of the results. Because I have already found that the second and third requirements of s. 258(1)(

c) areunconstitutional, evidence of the effect of the consumption of the accused on his or her blood alcohol level will be admissible only if theaccused chooses to tender it or if the presumptions of s. 258(1)(

c) are inapplicable (where, for example, the samples were taken too late)or have been rebutted. [70] Since Carter, Canadian courts have accepted that there is a logical connection between evidence of alcoholconsumption and the accuracy of breathalyzer test results. I agree that such evidence can logically tend to discredit both the results of abreathalyzer test and — indirectly — the proper functioning and operation of the instrument itself. [71] However, the fact that evidence is relevant does not necessarily make it admissible.

This Court has recognized thatrelevant evidence can be excluded if its exclusion is justified by a ground of law or policy (R. v. Seaboyer, (SCC),[1991] 2 S.C.R. 577, at p. 609). Professors Cross and Tapper quote Wigmore’s comment that “[a]dmissibility signifies that the particularfact is relevant and something more, — that it has also satisfied all the auxiliary tests and extrinsic policies” (R. Cross and C.

Tapper,Cross on Evidence (7th ed. 1990), at p. 60; see Seaboyer, at p. 692, per L’Heureux-Dubé J.). [72] In the context of the case at bar, as I mentioned above, the expert evidence accepted by the courts over the past fewyears has established that

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