2017 QCCA 1033, 2017 QCCA 1033

Cyr-Langlois c. R. 2017 QCCA 1033 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-005977-150 C.S.: (700-36-001099-158) C.Q.: (700-01-113752-128) DATE: June 29, 2017 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. DOMINIQUE BÉLANGER, J.A. MARIE-JOSÉE HOGUE, J.A. MARC CYR-LANGLOIS APPELLANT — Accused v.

HER MAJESTY THE QUEEN RESPONDENT — Prosecutrix and ASSOCIATION QUÉBÉCOISE DES AVOCATS ET AVOCATES DE LA DÉFENSE INTERVENER JUDGMENT [ 1 ] The appellant appeals from a judgment rendered September 16, 2105 by the Superior Court, District of Terrebonne (the Honourable Jerry Zigman), reversing a judgment rendered December 19, 2014 by the Court of Quebec (the Honourable Carol Richer) and ordering a new trial. The Court of Quebec acquitted the appellant of an one charge of driving a motor vehicle with a blood alcohol level of more than 80 mg per 100 ml of blood (s. 253(1)(

b) and 255(1) Cr.c. ). [ 2 ] For the reasons of Hogue J.A. with which Chamberland J.A. agrees, THE COURT: [ 3 ] ALLOWS the appeal; [ 4 ] REVERSES the judgment of the Superior Court; [ 5 ] REINSTATES the acquittal rendered by the first instance judge. [ 6 ] For other reasons, Bélanger J.A. would have dismissed the appeal. JACQUES CHAMBERLAND, J.A. DOMINIQUE BÉLANGER, J.A. MARIE-JOSÉE HOGUE, J.A. Mtre Marie-Pier Boulet Mtre Hugo Marquis BMD AVOCATS For the appellant Mtre Maxime Lacoursière DIRECTEUR DES POURSUITES CRIMINELLES ET PÉNALES For the respondent Mtre Jean-Philippe Marcoux

GARIÉPY ST-ONGE MARCOUX For the intervener Hearing Date: November 2, 2016 REASONS OF HOGUE, J.A. [ 7 ] Was the evidence adduced by the accused to the effect that he was not under observation for a minimum of 20 minutes preceding the administration of a breathalyzer test sufficient to deny the prosecution the benefit of the presumptions set out at s. 258(1) (

c) of the Criminal Code ( Cr.C. ) [1] as it reads following the decision in R. v. St-Onge Lamoreux ? [2] [ 8 ] This the question raised by the present appeal. THE FACTS [ 9 ] The appellant faces two counts related to driving a motor vehicle while allegedly under the influence of alcohol. [ 10 ] With respect to the first count, he is accused of having driven a motor vehicle while impaired by drugs or alcohol ( s. 253(1) (

a) and 255(1) of the Criminal Code ), and with regard to the second, he is accused of having driven with a blood alcohol level in excess of 80 milligrams of alcohol per 100 millilitres of blood (s. 253(1)(

b) and 255(1) of the Criminal Code ). [ 11 ] On July 12, 2012, the appellant was intercepted by Officers Boissonneault and Cousineau. He was arrested at 0:35 and taken to the police station to undergo a breathalyzer test. Upon arriving at 0:58, he was placed in an interrogation room. Officer Cousineau then offered to take steps to allow him to exercise his right to counsel, which he did. Officer Boissonneault, for his part, took charge of preparing the equipment. [ 12 ] The first breathalyzer test was administered at 1:08 and the second at 1:30.

The results indicated the presence of alcohol in excess of 80 milligrams per 100 milliliters of blood. [ 13 ] The trial was set to proceed before the Court of Quebec (District of Terrebonne) on December 19, 2014. [ 14 ] From the outset of the trial, it was agreed that the following question would be argued first: did the qualified technician who operated the breathalyzer, here Officer Boissonneault, respect the necessary observation period prior to administering the test? [ 15 ] Officer Boissonneault was thus the only witness heard. [ 16 ] It appears from the testimony of Officer Boissonneault that Officer Cousineau took charge of the appellant upon their arrival at the police station, while Officer Boissonneault was responsible for preparing and operating the breathalyzer. [ 17 ] He indicated that they had been taught, in training related to the breathalyzer, that detainees should be observed continuously for 20 minutes prior to each test.

He could not, however, confirm whether the appellant here had been so observed prior to the administration of the first test because the appellant had been in Officer Cousineau’s charge. He also explained the reasons for requiring this period, confirming that the results of the test may otherwise be invalid. [ 18 ] Following this testimony and the representations of counsel, the judge acquitted the appellant with respect to the second accusation.

In the judge’s view, the evidence established that the appellant had not been observed during the 20 minutes prior to the administration of the breathalyzer and he had a reasonable doubt as to the reliability of the breathalyzer so, in the absence of additional evidence, he set aside the presumption of accuracy. [ 19 ] Because the prosecution had chosen not to lead any evidence with respect to the first count, the appellant was also acquitted of that accusation. [ 20 ] The prosecution appealed the acquittal on the second count to the Superior Court. [ 21 ] Referring to the conditions set out by the Court of Appeal of Alberta in the decision R. v.

So [3] as those to be met to rebut the presumptions set out in favour of the prosecution at s. 258(1) (

c) Cr.C. , the Superior Court judge (sitting on appeal) was of the opinion that these conditions were not met here. In his view, the trial judge erred in this respect. [ 22 ] Although his judgment was brief, it reveals that he interpreted s. 258(1) (

c) Cr.C. and the decision in St-Onge Lamoureux as imposing a heavier burden on the accused seeking to rebut the presumptions of accuracy and identity applicable to breathalyzer tests than that imposed by the trial judge. [4] [ 23 ] Consequently, he allowed the appeal, reversed the acquittal and ordered a new trial with respect to the second charge. [ 24 ] Having obtained leave from a judge of this Court, the appellant now appeals from that decision. [5]

[ 25 ] L’Association québécoise des avocats et avocates de la défense was granted leave to intervene. [6] The Association supports the position of the appellant. THE PARTIES’ POSITIONS [ 26 ] The appellant raises four grounds of appeal but, with the exception of the fourth ground which concerns the insufficiency of the reasons of the judgment under appeal, he essentially argues that the judge sitting on appeal imposed too heavy a burden on him by requiring him to establish that improper operation of the breathalyzer had a discernable effect on the results.

He advances that by requiring such evidence, the judge sitting on appeal indirectly reintroduced one of the two requirements of s. 258(1) (

c) declared unconstitutional by the Supreme Court in St-Onge Lamoureux . [7] [ 27 ] The respondent replies that the legislative presumptions will only be rebutted where the accused establishes that the technician’s omission raises a reasonable doubt with respect to the reliability of the test results. Here, the respondent adds, evidence of a possible link between the omission and reliability must be made by an expert witness.

In the absence of such evidence, the judge sitting on appeal was right to reverse the acquittal and to order a new trial. [ 28 ] In the respondent’s view, the real question on appeal is what constitutes evidence tending to show … that the approved instrument was malfunctioning or was operated improperly in the sense of s. 258(1) (

c) Cr.C. ANALYSIS [ 29 ] In order to better understand the position taken by each of the parties, it is appropriate to return to Justice Deschamps’ reasons in R. v. St-Onge Lamoureux , rendered in 2012. [8] In that case, two of the three conditions for rebutting the presumptions of accuracy and identity applicable to breathalyzer tests set out in favour of the prosecution at s. 258(1) (

c) Cr.C. were declared unconstitutional by the Supreme Court. [ 30 ] At that time, section 258(1) (

c) Cr.C. was drafted as follows: 258.

(1) In any proceedings under subsection 255(1) in respect of an offence committed under

section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2), (

c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if (i) [Repealed before coming into force] (ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken, (iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and (iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician, evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed ; [Emphasis mine] [ 31 ] In that case, the accused argued that the new provisions regarding infractions linked to driving with a blood alcohol level exceeding the legal limit were unconstitutional ( s. 258(1) ( d.01 ), 258(1) ( d.1 ) et 258(1) (

c) Cr.C .). She argued that the provisions violated the presumption of innocence, the right to full answer and defense and the protection against self-incrimination. [ 32 ] Justice Deschamps, writing for the majority, concluded that s. 258(1) (

c) Cr.C. violated the presumption of innocence. [ 33 ] Justice Deschamps was of the opinion that the provision set out three distinct and cumulative conditions that must be satisfied in order to rebut the presumptions of accuracy and identity, and examined each of these conditions to determine whether the infringement could be justified under s. 1 of the Canadian Charter of Rights and Freedoms (the Charter ). [ 34 ] The first condition required the accused to raise a doubt with respect to the proper functioning and operation of the approved instrument.

The second required the accused to lead evidence tending to show that the malfunctioning or improper operation of the instrument resulted in a determination that the concentration of alcohol in the accused’s blood exceeded the legal limit, and the third required evidence raising a reasonable doubt as to whether the accused’s blood in fact exceeded the legal limit. [ 35 ] She began by concluding that the infringement caused by the first requirement was justified by s. 1 , asking whether this requirement might affect the right to full answer and defense as well as the protection against self-incrimination.

She held, however, that the first requirement did not affect either of these rights and therefore was constitutionally valid.

[ 36 ] She then applied the s. 1 Charter analysis to the second of the three conditions and concluded that, this time, the violation of the the presumption to innocence was not justified. Consequently, s. 258(1)(

c) Cr.C. should be severed to read: 258

(1) In any proceedings under subsection 255(1) in respect of an offence committed under

section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2), […] evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses , in the absence of evidence tending to show that the approved instrument was malfunctioning or was operated improperly ; […] [ 37 ] She did not, however, indicate what constitutes evidence tending to show that the approved instrument was malfunctioning or was operated improperly.

Nevertheless, in my view, this is clear in the following excerpts from her reasons supporting the conclusion that the second and third conditions were not justified: [56] Insofar as the majority in St. Pierre followed the approach adopted by Pigeon J. in Crosthwait with respect to the requirement 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 a doubt that his or her blood alcohol level in fact exceeded .08 could be justified when there were no limits on the evidence the defence could tender to cast doubt on the test results, it 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 . [57] A consideration of the advantages and disadvantages of the second requirement of s. 258(1)(

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

c) Cr. C. “ in clear recognition of the difficulty and expense of requiring expert evidence in virtually every alcohol - related driving offence” (para. 90). The scheme that has existed since the statutory amendments came into force is designed to require the prosecution to adduce technical evidence to counter an attempt to rebut the presumption of accuracy or the first presumption of identity. An accused who produces evidence to rebut one of these presumptions will do 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 has to prove that there is no connection after the accused has adduced evidence to show that the instrument malfunctioned or was operated improperly 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 or was operated properly, this simply means that the prosecution loses the benefit of the presumptions under s. 258(1)( c ).

The prosecution can still tender additional evidence to prove that, despite the proven deficiency, the blood alcohol level of the accused exceeded .08 as shown 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 to raise a reasonable doubt, but also a causal connection between that malfunction or improper operation and the determination that the blood alcohol level of the accused exceeded the legal limit, constitutes a serious infringement of the right to be presumed innocent.

This infringement cannot be justified in a democratic society. […] [63] The inquiry into whether the impairment of the right to be presumed innocent is minimal confirms that the requirement of evidence that the blood alcohol level of the accused was under the legal limit is not justified. I reiterate that 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. This amounts to saying that, where a court has a doubt about an essential element of the offence, it must nevertheless convict unless the accused can present evidence tending to show that he or she is innocent . I accordingly find that the third requirement of s. 258(1)(

c) cannot be justified under s. 1 of the Charter . [9] [Emphasis mine] [ 38 ] From these reasons, I conclude that an accused who seeks to rebut the presumptions of accuracy and identity with respect to blood alcohol content must advance evidence tending to show the malfunctioning or improper operation of the instrument likely to influence the result ( serious enough to raise a reasonable doubt are the words of Deschamps J. at paragraph 59) without being required to show that the deficiency in fact led to an inaccurate result. [ 39 ] Consequently, not all malfunctions or improper operation will rebut the presumptions.

They must be serious enough . [ 40 ] The malfunctioning or improper operation that the evidence tends to show may, in some cases, be such that the impact on the possible invalidity of the results will be obvious. There are, however, other deficiencies whose impact may be less clear. In such cases, the accused will be required to offer additional evidence showing that the deficiency is likely to have had an impact on the reliability of the results.

[ 41 ] The evidence required does not, however, rise to the level of proving causation in fact as the accused need only show that the deficiencies likely affected the reliability of the test results. The distinction may seem strained, but it is important. [ 42 ] The evidence may be expert evidence, but it is not imperative that this be so.

Clearly, evidence may also be made by the qualified technician. [ 43 ] This will be the case particularly where the deficiency in question is one of improper operation of the instrument, because it is difficult to imagine a deficiency regarding the malfunctioning of the instrument that would not be likely to affect the result. [ 44 ] In all cases, it will fall to the trial judge to evaluate the evidence tendered and to determine whether it is sufficient to rebut the presumptions.

To do so, the judge must take into account the nature of the deficiency and, then, the facts revealed by any other evidence that has been led. A court sitting on appeal will not intervene unless this determination is unreasonable. [10] [ 45 ] Remember, however, that for the purpose of rebutting the presumptions, the accused will never have to prove that the malfunctioning or improper operation of an instrument led to an erroneous result. This would be a more demanding evidentiary standard of causation and, above all, evidence that would seem similar to the second condition of s. 258(1)(

c) Cr.C. declared unconstitutional by the Supreme Court in St-Onge Lamoureux . [ 46 ] What then of the evidence tendered by the appellant here? [ 47 ] This evidence comes exclusively from Officer Boissonneault’s testimony, specifically from responses he gave to questions posed during examination in chief by counsel for the prosecution and others given in response to questions by counsel for the appellant during cross-examination. [ 48 ] At this point, it is useful to reproduce some of these excerpts: [ Translation ] THE COURT: - Yes, yes. That’s the gist of the question.

Even if the questions are more general, we are going to limit them to what happened that night concerning Mr. Cyr Langlois. R. As I was saying, from the moment we arrived, it was always Officer Cousineau who was with Mr. Cyr. I Ieft the minute that he went into the interrogation room where he was going to exercise his right to counsel. Me, I left, I went in the room just next door where there is a window where you can see between the two rooms. At that point, I did what I needed to do to prepare my instrument.

It was Officer Cousineau who was always with him, except, obviously, while he was talking with his lawyer, when he was outside of the room. Q. So, you just said that while he was speaking with his lawyer, Officer Cousin… I understand that… was Officer Cousineau still there? R. Well, he was in the breathalyzer room with me, and there is glass between the two rooms where you can see whether the individual has finished his phone call. Q. So, was the individual being observed? R.

Listen, I don’t remember if there was constant observation, but sure there was observation… because the only way of knowing if he had finished his call was to look through the window. So, sure, he was watching. I can’t say if he had his eyes glued to the window from beginning to end, but he was in the room and he was observing through the window. Q. Do you know how long Mr. Cyr spoke with his lawyer? R. I would have to check the notes in the file. That’s it, I don’t know off the top of my head. … Q. O.K.

Is it true that you are taught, when you are trained as a qualified technician, that, as a technician you have to observe the subject – the accused, during X amount of time before taking a sample? R. Well, yes – you have to observe for at least 20 minutes between the time of the arrest and the first blow. I mean, the investigator on the file can observe… … R.

It’s because with residual alcohol, sure, the ratio could be different. [ 49 ] From this evidence, the first instance judge could reasonably conclude that the accused had not been observed during the 20 minutes prior to the first test (or at least that the evidence did not reveal that he had been) and that this deficiency in operating the instrument was relevant to the reliability of the results.

Indeed, the testimony of Officer Boissonneault reveals: 1) that qualified technicians are taught that detainees must be observed continuously for at least 20 minutes prior to each test; 2) that the observation period ensures that the accused hasn’t smoked, vomited, drunk, belched or regurgitated;

3) that one or more of these actions might lead to invalid results, notably because residual alcohol may remain in the mouth. [ 50 ] In the absence of additional evidence allowing him to conclude that the possibility of the invalid result to which Officer Boissonneault referred could be ruled out, the first instance judge was entitled not to extend the benefit of the presumptions to the prosecution. He did not have to require anything further from the accused. [ 51 ] This situation is different from that in R. v.

So , because the evidence tendered was not the same. [ 52 ] After having established that the accused had to lead evidence tending to show, on the one hand, a deficiency in the functioning or operation of the breathalyzer and, on the other hand, that the flaw was directly related to the accuracy or reliability of the results, the first instance judge in So analysed the evidence tendered and wrote: [29] However, in light of my conclusion as to the evidence requires to rebut the presumption of accuracy, I find that the evidence led by the accused in this case falls short.

I have no evidence before me relating how the failure by CPS to observe Mr. So, or indeed the failure to wait a further period of time following Mr. So burping, necessarily rendered the breath test results inaccurate or unreliable. For example, Mr. So testified that his alcohol consumption ended by 2:00 a.m., some two hours and 10 minutes prior to the first breath test. I have no evidence before me that Mr. So had, or would have had, any alcohol in his stomach at all. Absent that evidence, Mr.

So’s burping may be irrelevant to the reliability of the breath test as it is only the regurgitation of undigested alcohol from the stomach to the mouth which may (I gather from argument) taint subsequent breath tests. Further, I have no evidence before me as to how the proper functioning of the instrument can be said to have been affected by the injection into the mouth of undigested alcohol. I have no evidence before me as to how Mr.

So’s burping, if in fact injected various amounts of undigested alcohol into his mouth at a variety of times, could have rendered unreliable the remarkably consistent truncated breath results of 140 mg% and 130 mg%. [11] [ 53 ] A judge of the Court of Queen’s Bench of Alberta dismissed the appeal from this decision, [12] and that judgment was in turn confirmed by the Court of Appeal of Alberta which described the burden borne by the accused as follows: [44] The appellant was required to adduce evidence to raise a reasonable doubt as to the proper operation of the instrument.

This does not mean he was required to raise a reasonable doubt as to the effect of any such improper operation. To rebut the presumption the accused must raise a reasonable doubt about proper operation, not as to its effects.

The requirement that there be evidence relating directly to some deficiency in operation that raises a reasonable doubt on the reliability of the results, in order for there to be “evidence tending to show” improper operation, does not require an accused to show the improper operation “resulted” (using the second struck requirement) the reported concentration exceeding .08. [13] [ 54 ] It seems to me that this description corresponds to the burden I have identified, although I note that the potential impact of a deficiency on the reliability of the result may sometimes flow from the nature of the deficiency itself, without requiring additional evidence. [ 55 ] All this to say that, here, the Superior Court justice sitting on appeal was not justified in intervening and concluding as he did.

The first instance judge had correctly applied the law by setting aside the presumptions and acquitting the appellant because, after having heard and considered the evidence, he had a reasonable doubt as to the reliability of the result. [ 56 ] This is essentially a question of fact and of appreciation of the evidence by a trial judge who must decide whether the evidence leaves him with a reasonable doubt.

In the absence of an error of law, I would say that a judge sitting on appeal may not intervene unless the first instance judge’s appreciation of the evidence is unreasonable, and in no circumstances should an accused be required to tender evidence of a causal relationship between the deficiency identified and the results of the test. [ 57 ] In light of my conclusion, it is unnecessary to consider the ground of appeal relating to the sufficiency of the reasons. [ 58 ] I suggest that the Court ALLOW the appeal, REVERSE the judgment of the Superior Court sitting on appeal and REINSTATE the acquittal rendered by the first instance judge.

MARIE-JOSÉE HOGUE, J.A. REASONS OF CHAMBERLAND, J.A. [ 59 ] With respect for the opposing view, I agree with the reasons of my colleague, Justice Hogue. [ 60 ] Since St-Onge Lamoureux , [14] it is clear that the evidence required to rebut the presumptions of accuracy and identity set out at s. 258(1) (

c) of the Criminal Code is evidence “tending to show … that the approved instrument was malfunctioning or operated improperly” [15] where the malfunction or improper operation is “objectively [identifiable]” [16] and serious enough to bring the

reliability of the test results into question. [17] [ 61 ] Baring a reversion to the state of affairs prior to the Supreme Court’s decision, the accused is not required to show, for example, that results indicating a blood alcohol level beyond the legal limit are the result of a malfunction or improper operation of the instrument. [18] [ 62 ] In this case, the trial judge was well aware of the holdings in St-Onge Lamoureux . It is these principles of law which he set out succinctly before turning to the evidence tendered by the prosecution.

With respect, I do not see the overriding error of law identified, after citing long excerpts of the decision in So , by the Superior Court justice sitting on appeal. [19] [ 63 ] As for the rest, and on this point I am entirely in agreement with what my colleague Justice Hogue writes, it falls to the trial judge to evaluate the evidence and, absent a clearly unreasonable analysis, that evaluation is owed deference. [ 64 ] Here, Officer Boissonneault explained that the proper use of the instrument requires that the subject be observed for 15 to 20 minutes prior to taking a breath sample in order to rule out the possibility that the presence of residual alcohol in the subject’s mouth compromised the results.

This method is in line with what he had been taught and with the recommendations of the Comité des analyses d'alcool (under the auspices of the Canadian Society of Forensic Science), recommendations which Justice Deschamps wrote in St-Onge Lamoureux “shed light on the circumstances that might explain how an instrument malfunctioned or was used improperly.” [20] [ 65 ] Officer Boissonneault specified that the task of observing the appellant fell to his colleague, Officer Cousineau, because Officer Boussonneault had to prepare the instrument.

But, Officer Cousineau did not testify and, in all honesty, Officer Boissonneault was unable to say specifically how his colleague’s observation had been performed. [ 66 ] The trial judge concluded that, in his opinion, this evidence “tending to show” that the instrument had been improperly operated was sufficient to cast doubt on the reliability of the results. This is a defensible evaluation of the evidence and it merits deference on appeal. JACQUES CHAMBERLAND, J.A.

REASONS OF BÉLANGER, J.A. [ 67 ] The appellant was acquitted after presenting a preliminary motion to rebut the presumption of accuracy of breathalyzer test results. In his view, the evidence tends to show that the results flow from an improper operation of the approved instrument. [ 68 ] To rebut the presumption of accuracy, the evidence must raise a reasonable doubt as to the malfunctioning or improper operation of the instrument.

A theoretical deficiency is not adverse evidence capable of rebutting the presumption. [21] [ 69 ] Consequently, I agree with Justice Hogue when she writes that evidence tending to show a deficiency with respect to the functioning or operation of an approved instrument and likely to influence the result must be serious enough to raise a reasonable doubt, without it being necessary to show that the alleged deficiency did in fact lead to a flawed result. [22] I would add, however, that evidence tending to bring the reliability of the results into question must bear directly on operational or mechanical failures. [23] [ 70 ] Moreover, I also emphasize that trivial or frivolous arguments will not raise reasonable doubt and “mere possibilities” do not constitute evidence tending to demonstrate the contrary.

Rather, the accused must raise an actual doubt with respect to the functioning or operation of the instrument. [24] [ 71 ] I part ways with my colleague when she writes that the first instance judge’s analysis of the evidence was reasonable. I, like the judge sitting on appeal, am of the opinion that this is not the case. The judge was not faced with evidence showing a deficiency likely to affect the result. This is why. [ 72 ] First of all, the legislature provided three requirements for the applicability of the presumption. These are found at subparagraphs 258(1) ( c )(ii), (iii) and (iv):

(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken, (iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and (iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician, (ii) chaque échantillon a été prélevé dès qu’il a été matériellement possible de le faire après le moment où l’infraction aurait été commise et, dans le cas du premier échantillon, pas plus de deux heures après ce moment, les autres l’ayant été à des intervalles d’au moins quinze minutes, (iii) chaque échantillon a été reçu de l’accusé directement dans un contenant approuvé ou dans un alcootest approuvé, manipulé par un technicien qualifié, (iv) une analyse de chaque échantillon a été faite à l’aide d’un alcootest approuvé, manipulé par un technicien qualifié; [ 73 ] No one challenges the fact that the requirements set out by the legislator were met in this case.

The provision does not, however, require that collection of the first sample be preceded by any period of time whatsoever, much less that the technician must constantly monitor the suspect for 15 or 20 minutes. [ 74 ] It is useful to reproduce the reasons of Justice Deschamps in St-Onge Lamoureux : [25] It is therefore necessary to inquire into the effect of the presumptions of accuracy and identity provided for in s. 258(1) (

c) Cr. C . The expert evidence filed in the instant 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 (“Committee”) of the Canadian Society of Forensic Science (“CSFS”) 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: “Recommended Standards and Procedures of the 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 a system blank test and a system calibration check, and verify the temperature of the alcohol standard, and that the alcohol standard must be changed after a certain number of calibration checks. The Committee also recommends that approved instruments be inspected on an annual basis to ensure that they continue to meet the manufacturer’s technical specifications.

According to the Committee, the calibration 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 instrument malfunctioned or was used improperly. Thus, human error can occur when samples are taken and at various steps in the maintenance of the instruments, which, it should be mentioned, are used Canada - wide.

Hodgson ’ s report, which the prosecution itself relied on as a source 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 are operated 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 the accused 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 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 statutory presumptions and will be required to convict the accused unless the accused rebuts those presumptions in accordance with the requirements of s. 258(1) ( c ). In view of the mechanism for applying the statutory presumptions established in s. 258(1) ( c ), I find that s. 258(1) (

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

d) of the Charter . [25] [ 75 ] Consequently, in the absence of a violation of the legislative requirements, it falls to the accused to adduce evidence tending to show the malfunctioning or improper operation of the instrument. Although expert evidence is not essential, concrete evidence must be tendered to show that the improper operation or malfunctioning of the instrument may be linked to the results (as opposed to the necessity to show that improper operation did in fact lead to unreliable results).

In sum, the evidence should not be mere hypothesis or conjecture. [ 76 ] I turn now to the facts. [ 77 ] The appellant was stopped at 00:35 and immediately driven to the station. Thus, he arrived there around 00:58. Upon arrival, he was taken to the interrogation room. Officer Cousineau took the necessary steps to allow him to exercise his right to counsel. Officer Boissonneault was then preparing the instrument. The first test was administered at 1:08 and the second at 1:30.

As Officer Boissonneault testified, it was Officer Cousineau who maintained visual contact with the appellant, although he could not confirm whether his colleague’s observation of the appellant was constant.

[ 78 ] The first judge agreed with the appellant’s theory that, according to Officer Boissonneault’s testimony, the qualified technician manual (which was not adduced in evidence) recommends waiting 20 (or maybe 15) minutes before testing a subject in order to observe whether the subject has consumed alcohol, vomited or belched. The idea is to ensure that, at the time of the test, the mouth does not contain any alcohol that may have come from the digestive system.

Thus, the absence of evidence that the appellant was constantly monitored by the technician for 15 minutes casts doubt on the reliability of the tests. [ 79 ] I do not believe it is appropriate to give credence to this theory without more probative evidence. [ 80 ] The Court of Quebec judge stated that he “relied” on excerpts from St-Onge Lamoureux in rendering his decision. [26] He stated [ translation ] “I imagine that the l’École nationale de police must have adopted the standards of the Canadian Society of Forensic Science” to which Justice Deschamps referred.

But, this deduction is not supported by the evidence and neither did the judge have before him in evidence either the content of the manual, the reasons or circumstances under which a burp may invalidate a result or what a technician should do in such circumstances. [ 81 ] Justice Deschamps’ observations at paragraph 25 of St-Onge Lamoureux do not permit us to state, as did the first instance judge, that the fact that a qualified technician does not observe a subject for 15 minutes necessarily constitutes improper operation of the instrument or requires setting aside the presumption.

Justice Deschamps’ comments do not form part of the ratio decidendi of the decision and are not equivalent to a legislative provision. [27] [ 82 ] As the Court of Appeal of Alberta rightly highlighted in So , [28] Justice Deschamps was careful to specify that Parliament had not adopted the Committee’s recommendations. [29] [ 83 ] Moreover, Justice Deschamps also stated that “[w] hat the new provisions require is that evidence tending to cast doubt on the reliability of the results relate directly to such deficiencies.” [30] She specified that she had not considered the limits of the range or character of such evidence, although she did state that “[i]t can be inferred from these recommendations that the instruments may not function optimally if the suggested procedures are not followed.” [31] [ 84 ] Before concluding as he did, the first instance judge should have had the manual in question in evidence which, moreover, would have allowed him to know whether the period at issue was 15 or 20 minutes and what the manual’s precise guidelines were before concluding that there had been improper operation.

The manual produced in So , for example, is revealing and, despite its content being tendered as evidence, three courts rejected the “burp” defense even though the accused had testified and stated that he had belched prior to the tests. [ 85 ] Indeed, the simple fact that an instruction manual sets out certain recommendations does not mean that failure to follow these recommendations is clearly improper operation. This was the conclusion of the Court of Appeal of Alberta in R. v. So and of the Court of Appeal for Ontario in R. v.

Lam . [32] [ 86 ] I am therefore of the opinion that even if the manual had been produced, the manual should not have had the impact that the first instance judge accorded it. I am completely in agreement with the statement of the Court of Appeal of Alberta in this regard: [42] With respect to the appellant’s reliance on Bernshaw and Crosthwait for the proposition that manuals of the sort excerpted into evidence here are authoritative, we accept that in both of those cases such information was received into evidence. In each case the manual was accorded the weight considered due in the circumstances.

In neither case, however, did the Court hold that such manuals are authoritative in the sense urged upon us by the appellant, that whatever such a manual says ought to be done or must be done or should not be done becomes mandatory before the Crown can rely on the presumptions.

If that were so, the drafters of such manuals would be exercising the power our constitution bestowed exclusively on Parliament . [33] [Emphasis mine] [ 87 ] Rendered together, the decisions in St-Onge Lamoureux and Dineley , [34] do not endorse the presentation of general evidence of improper operation; the evidence must be examined in the specific context of each case. [ 88 ] Finally, two elements should have been retained by the trial judge because they flow both from the evidence and simple common sense.

The appellant neither consumed alcohol nor vomited between 00:35 (when he was arrested) and the second test administered at 1:30. These possibilities must be set aside because there is no evidence to support them. [ 89 ] Without testifying, the appellant implies that he could have burped during this time and that this could have invalidated the results. But, consider two simple possibilities. [ 90 ] In the absence of evidence establishing:

a) that in light of the timing of his last drink, alcohol was likely present in the appellant’s digestive system and

b) that at the relevant moment in time he belched and his burp led to the presence of residual alcohol in his mouth likely to taint the reliability of the results, the appellant’s argument that he was not constantly monitored, which allows us to draw the inference that he belched, is nothing but conjecture and does not justify the conclusion that this is evidence tending to show improper operation of the instrument. The evidence necessary to rebut the effect of the presumptions provided for at s. 258(1)(

c) requires more. [ 91 ] Moreover, the appellant had to demonstrate not only the improper operation of the instrument, but also that this improper operation was “directly related” to the reliability of the results. But, there is no such evidence here.

[ 92 ] The burden of demonstrating that there may have been residual alcohol in his mouth at the time of the tests requires more than tossing out the possibility, without more, that he may have belched and that this may have had an influence on the tests. [ 93 ] With respect for the opposing view, I do not believe that a distinction should be drawn between this case and R. v.

So in which the evidence established, unlike here, that (1) the appellant had not consumed any alcohol for more than two hours before submitting to the tests; (2) that he had belched twice (in the patrol car and in the holding room); (3) that he had not advised the technician; (4) that the latter had not delayed taking the sample; and (5) that the procedural manual filed indicated that the technician should ensure that there was no alcohol in the subject’s mouth and, if there was, to delay the tests long enough to allow for the alcohol to dissipate.

Despite this evidence, the “burping” defense was not retained. [ 94 ] The judge sitting on appeal was thus right to adopt the holding of the Court of Appeal of Alberta in So and to order a new trial. [ 95 ] I therefor propose to dismiss the appeal. DOMINIQUE BÉLANGER, J.A. [26] He stated “As I was saying, I don’t know if this will now change things concerning qualified technicians. Perhaps. But I rely on the officer’s testimony and the instruction he received at the police academy to become a qualified technician.

I also rely on the holdings of the Supreme Court in St-Onge Lamoureux which explicitly address observation of the subject for at least 15 minutes and the fact that, if this is not done, the functioning of an instrument may not be optimal with respect to the quality of the test.” [27] R. v. Henry , 2005 SCC 76 , [2005] 3 S.C.R. 609 , para. 57 . [28] R. v. So , 2014 ABCA 451 , application for leave to appeal to the Supreme Court dismissed June 18, 2015, No. 36321. [33] R. v. So , 2014 ABCA 451 , para. 42 .