2010 QCCQ 12134, 2010 QCCQ 12134

JB-2481 R. c. Poitras 2010 QCCQ 12134 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF CHARLEVOIX CITY OF LA MALBAIE "Criminal and Penal Division" No.: 240-01-006344-097 DATE: December 15, 2010 ______________________________________________________________________ PRESIDED BY: THE HONOURABLE RÉMI BOUCHARD, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutrix v.

MICHEL POITRAS Accused – Constitutional claimant and ATTORNEY GENERAL OF QUEBEC Constitutional respondent ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] An information filed on January 6, 2009, alleges that, on November 21, 2008, the accused, Michel Poitras, operated a motor vehicle while his ability to drive was impaired by alcohol or drugs and operated this vehicle after having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 mg per 100 mL of blood. [ 2 ] On April 17, 2009, the accused served a notice of intent to challenge the constitutional validity of paragraphs 258(1) (

c) and 258(1) ( d .01) of the Criminal Code on the Attorney General of Canada, the Attorney General of Quebec, and the director of Criminal and Penal Prosecutions. [1] [ 3 ] The Attorney General of Quebec appeared on April 27, 2009. The Attorney General of Canada did not appear. [ 4 ] The case was postponed to December 4, 2009, with the consent of the parties. [ 5 ] On December 4, the prosecution’s case was presented, although the accused and his counsel were unjustifiably absent.

The defence evidence, the constitutional challenge, and oral arguments were postponed to May 26, 2010, when they were heard. [ 6 ] While presenting its evidence, the prosecution stated that it would not lead evidence on the first count. The Court therefore acquitted the accused on that count. Consequently, the evidence applies solely to the second count. THE FACTS [ 7 ] On November 21, 2008, at 8:40 p.m., on Saint-Laurent Street in Saint-Siméon, Officers Coulombe and Auger stopped the accused for speeding.

[ 8 ] While speaking with him, Officer Coulombe observed that the accused avoided his gaze and appeared to be looking at the ground. The officer also noted the smell of alcohol and observed an open bottle of beer containing two centimetres of liquid in the cup holder in the centre console. The accused told him that the bottle belonged to one of his friends, who had forgotten it there. [ 9 ] When the police officer asked him who his friend was, the accused hesitated and finally admitted that the bottle was his.

He added that he hadn't remembered that it was there and that he had not drunk it recently. [ 10 ] The accused was taken to the patrol car, where Officer Coulombe continued to smell alcohol, also noting that Mr. Poitras's eyes were red. [ 11 ] In the patrol car, Officer Auger observed that the accused smelled strongly of alcohol, that his eyes were red, and that he was nervous.

He also states that the accused was cooperative. [ 12 ] His failure of the test administered using the approved screening device provided the police officers with grounds to arrest the accused and to administer a test using the Alco-Sensor-IV RBT-IV instrument, which was operated in accordance with protocol and functioned normally. [ 13 ] The most reliable result obtained was 119 mg of alcohol per 100 mL of blood at 10:15 p.m. [ 14 ] In his defence, the accused testified and submitted the report by Jean-Pierre Robitaille B. Sc., M.

Sc., who was qualified as an expert. [ 15 ] The finding of the report reads as follows: [ translation ] At the time of the event, the most probable blood alcohol concentration of the person was likely around 20 to 25 mg%, according to the consumption time period and the quantity of alcohol consumed.

The blood alcohol concentration calculated on the basis of a consumption scenario is therefore lower than the legal limit. [ 16 ] This conclusion and the preceding calculation of the blood alcohol concentration upon which it is based rely on information provided by the accused and referred to in the expert's report under the headings [ translation ] "Premises" and [ translation ] "Chronology of Events". [ 17 ] In his testimony, Mr.

Poitras stated that he had read the report and verified the information it contained, and that [ translation ] "Everything was OK''. [ 18 ] Regarding the time at which he began drinking, however, there is, as his counsel admits, a certain [ translation ] "uncertainty". ANALYSIS [ 19 ] Indeed, the accused's statement concerning the accuracy of the information given to the expert regarding the time he started and stopped drinking is considerably weakened by his hesitations and contradictions on the subject. [ 20 ] Under examination by his counsel, Mr.

Poitras begins by stating that he left his house for the grocery store around 5:00 p.m. or 4:30 p.m. He then states that he began drinking at 5:00 p.m. or 5: 5 p.m., adding that he does not really know, and that he continued drinking until 8:00 p.m. or 8:30 p.m. [ 21 ] He states that he then took a shower and went out around 8:30 p.m. or 8:35 p.m., given that he was arrested at 8:40 p.m. when he was about five minutes from his residence.

He repeats that he stopped drinking at 8:00 p.m. [ 22 ] As for the amount, he states that on the evening he was arrested he thought he had had three or four beers, but that the next day he realized that it was four because he had two full ones left over. [ 23 ] Under cross-examination, when asked about the bottle found in his vehicle, he explains that he had been given the bottle by a friend, whom he identified, and that he had drunk it two days before his arrest.

He admits that he did not immediately tell the officer that the bottle was his because he had forgotten that it was there. [ 24 ] Regarding the time that he started drinking, he states that it must have been 5:00 p.m. when he ate, and that he opened his first beer no more than twenty minutes later. [ 25 ] He states that he remembers this, but admits that when the police officers asked him what time he had started drinking, he answered that he did not remember the time.

He explains this answer by saying that he was nervous. [ 26 ] Under re-examination, he first states that he had supper around 5:00 p.m., or 4:50 p.m., and that he began to drink about fifteen or twenty minutes later. [ 27 ] He then repeats that he had his first beer at 5:00, after saying that it had been a long time since that had happened. [ 28 ] The expert report describes a consumption scenario beginning around 5:00 p.m. and ending around 8:00 p.m.

Given the fact that it establishes that the total consumption of the accused, without any possibility of elimination, was 76 mg per 100 mL of blood, this discrepancy does not affect the conclusion of the report according to which, based on the premises posited, the accused's blood alcohol concentration did not exceed 80 mg per 100 mL of blood at the time of the offence.

[ 29 ] Do his hesitations and contradictions with respect to an important aspect of his testimony undermine the accused's credibility or the reliability of his testimony to the point where it should be rejected? [ 30 ] The accused's testimony contains no other significant weaknesses. The reference points on which he bases his statement regarding the number of beers he drank and the time period during which he drank them supports the reliability of his statements. [ 31 ] As for the witness's credibility, there is nothing throwing it into doubt. It does not appear that he intends to deceive the Court.

The contradictions and hesitations observed occurred because the witness was very nervous (as he was at the time of his arrest) and because he could not remember, and indeed probably never knew, the exact time he started drinking. After asking himself again, as he puts it, he is able to situate it approximately between 5:00 p.m. and 5:30 p.m. [ 32 ] Therefore, the accused's testimony should not be rejected. [ 33 ] The accused presented no other evidence to rebut the statutory presumptions.

THE CONSTITUTIONAL CHALLENGE [ 34 ] By consent, the parties have filed before the Court all of the testimonies given on the same constitutional issues before Chapdelaine J. in Sherbrooke in R. v. Drolet , [2] along with all of the arguments made on these issues before Lortie J. in Saguenay in R. v. Laforge , [3] as well as other cases of a similar nature. [ 35 ] They have also filed a number of exhibits that were adduced before Chapdelaine J. and some of the documents filed before Lortie J.

This evidence is identified as exhibits R-1 to R-10 and PGQ-1 to PGQ-31. [ 36 ] During the hearing, Mtre Fradette, counsel for the accused, told the Court that exhibits R-7, R-8, and R-9, which are the statements of the grounds of the Association québécoise des avocats et avocates de la défense, the intervener before Chapedelaine J. and Lortie J., contain arguments that he would raise if he were arguing the subjects they addressed. [ 37 ] He asked that the notice of intent to raise a constitutional challenge that had already been served be amended to add paragraph 258(1)( d .1) to the list of provisions he wishes to have declared constitutionally inapplicable.

The Attorney General did not object to this motion to amend, which was granted by the Court. POSITIONS OF THE PARTIES [ 38 ] The accused-constitutional claimant asks the Court to declare that paragraphs 258(1) ( c ), ( d .01) and ( d .1) infringe

section 7 and paragraphs 11(

c) and 11(

d) of the C anadian Charter of Rights and Freedoms (the " Charter "), to declare that these provisions are constitutionally invalid, and to apply severance as a remedy. [ 39 ] The Attorney General of Quebec maintains that the presumption of accuracy in paragraph 258(1) (

c) does not infringe any Charter provisions. It concedes that the presumption of identity violates the presumption of innocence, but states that decisions rendered under the former legislation are applicable and that the new provisions can be saved by

section 1 of the Charter . THE GROUNDS OF THE ACCUSED-CONSTITUTIONAL CLAIMANT [ 40 ] In support of his position regarding the right to be presumed innocent, the accused-constitutional claimant argues that paragraph 258(1) (

c) Cr.

C. obliges the trier of fact to conclude that the results of the analyses are identical to the blood alcohol concentration of the accused at the time of the alleged offence and that, in the absence of evidence capable of rebutting it, this presumption permits the conviction of an accused despite a reasonable doubt as to guilt in the mind of the trier of fact, since it does not inexorably follow from the evidence of the substituted fact – i.e., the blood alcohol concentration at the time the tests were administered – that the accused's blood alcohol concentration exceeded the legal limit at the time of the alleged offence. [ 41 ] He argues that the provisions relating to the presumption of identity mean that an individual who is able to raise a reasonable doubt in the mind of the trial judge as to his or her guilt can nevertheless be convicted. [ 42 ] Still regarding the presumption of identity, he adds that the new provisions create a defence so difficult to raise that it is practically illusory and that it is nearly impossible to adduce evidence that the instrument was malfunctioning or was operated improperly, given how difficult it is for the accused to have access to the relevant information. [ 43 ] He affirms that the results of the analysis constitute conclusive evidence of the accused’s blood alcohol concentration at both the time of the analyses and the time of the offence, unless it can be shown that the device was defective or operated improperly. [ 44 ] He also states that a provision that renders evidence essential to raising a legitimate defence inadmissible is a violation of

section 7 and paragraph 11(

d) of the Charter . [ 45 ] Regarding the right against self-incrimination in

section 7 and paragraph 11(

c) of the Charter , he contends that Parliament obliges the accused to testify in order to raise a reasonable doubt as to the elements indicated in paragraph 258(1)(

c) Cr. C . in an effort to render the presumption of identity inapplicable. [ 46 ] Finally, regarding the phrase "is conclusive proof", he states that it expresses the intent to make it impossible for an accused to adduce evidence to the contrary raising a reasonable doubt. [ 47 ] Regarding the

section 1 justification of the infringement, the accused begins by pointing out that the burden of justification is on

the Crown. [ 48 ] He then acknowledges that the objective sought by Parliament is pressing and substantial. [ 49 ] Regarding the proportionality test, he questions the existence of a rational, logical connection between the measures chosen and the objective sought. [ 50 ] He goes on to state that the scientific data do not meet the rational connection test. [ 51 ] He also argues that Phillips does not apply to the new version of paragraph 258(1) (

c) because it is no longer sufficient for an accused to raise a reasonable doubt as to his blood alcohol concentration at the time of the alleged offence to rebut the presumption of identity. [ 52 ] He adds that the minimal impairment test is not met because it is no longer possible to adduce [ translation ] "traditional” evidence to the contrary, and that whether or not the instrument was malfunctioning or used improperly is not information that the accused is likely to know. [ 53 ] In short, in his view, the burden that this provision places on the accused is so high that it is no longer a minimal impairment but a serious and disproportionate infringement of his constitutional rights. [ 54 ] Regarding whether the harmful effects are proportionate to the benefits, the accused lists the following harmful effects: the probability of an innocent person being convicted, the fact that the results obtained with the approved instruments have become practically impossible to challenge despite a possible error of the instrument or operator, the limit imposed by paragraph ( d .01), the difficulty for the accused to obtain the relevant information, and finally the creation in paragraph 258(1)(

c) of an evidentiary burden on the accused that is nearly impossible to meet, almost automatically leading to a conviction. [ 55 ] These negative effects are, in his view, largely disproportionate to the beneficial effects of the measure on the population as a whole. [ 56 ] Regarding severance, the accused submits that, once the portions that are proved to be in Charter violation and that cannot be saved by

section 1 are struck, the wording will be exactly the same as the former paragraph 258(1)(

c) and substantially the same as the former paragraph 258(1)( d .1). ISSUES IN DISPUTE [ 57 ] Therefore, the issues raised by the accused's position and grounds are the following: • Do the words "is conclusive proof...in the absence of evidence tending to show" in paragraph 258(1) (

c) Cr. C. modify the nature of the burden of proof imposed on the accused? • What is the nature of the presumptions in paragraphs 258(1) (

c) and ( d .1), and what is the burden of proof on the accused? • Do the presumptions in paragraph ( d .01) infringe

section 7 of the Charter ? • Do these presumptions infringe paragraph 11(

c) of the Charter ? • Do these presumptions infringe paragraph 11(

d) of the Charter ? • If these presumptions infringe one of these provisions, is the infringement justified under

section 1 of the Charter ? ANALYSIS [ 58 ] Since July 2, 2008, the relevant provisions of

section 258 Cr. C. have read 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) [Not in force] (ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken, (iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,

... (d.01) for greater certainty, evidence tending to show that an approved instrument was malfunctioning or was operated improperly, or that an analysis of a sample of the accused's blood was performed improperly, does not include evidence of (

i) the amount of alcohol that the accused consumed, (ii) the rate at which the alcohol that the accused consumed would have been absorbed and eliminated by the accused's body, or (iii) a calculation based on that evidence of what the concentration of alcohol in the accused's blood would have been at the time when the offence was alleged to have been committed; (d.1) if samples of the accused's breath or a sample of the accused's blood have been taken as described in paragraph (

c) or (

d) under the conditions described in that paragraph and the results of the analyses show a concentration of alcohol in blood exceeding 80 mg of alcohol in 100 mL of blood, evidence of the results of the analyses is proof that the concentration of alcohol in the accused's blood at the time when the offence was alleged to have been committed exceeded 80 mg of alcohol in 100 mL of blood, in the absence of evidence tending to show that the accused's consumption of alcohol was consistent with both (

i) a concentration of alcohol in the accused’s blood that did not exceed 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed, and concentration of alcohol in the accused's blood that did not exceed 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed, and (ii) the concentration of alcohol in the accused's blood as determined under paragraph (

c) or (d), as the case may be, at the time when the sample or samples were taken; [ 59 ] Before determining whether these provisions are constitutionally valid, we shall first outline their nature and scope. [ 60 ] As Hilton J.A. points out in R. v. Loiseau , [4] the effect of the amendments was well described by a judge of the Ontario Court of Justice in R. v. Mariano , [5] which was cited with approval by MacPherson J.A. of the Court of Appeal for Ontario in R. v. Dineley: [6] Pursuant to the Tackling Violent Crime Act , S.C. 2008, c. 6 (Bill C-2), which was enacted on July 2, 2008, section 258(1)(

c) now provides that the result of the accused's lowest breath test is conclusive proof of her blood alcohol concentration at the time of the offence, in the absence of evidence tending to show: ● the approved instrument malfunctioned or was improperly operated; ● the malfunction or error resulted in the "over 80" result; and ● the accused's blood alcohol concentration would not have exceeded 80 milligrams of alcohol in 100 millilitres of blood at the time she was driving or in care and control of a motor vehicle. In addition,

section 258(d.01) precludes testimony with respect to the accused's alcohol consumption or her rate of elimination or a calculation of the accused's blood alcohol concentration premised on those factors from being advanced as evidence tending to show a problem with either the breath testing equipment or the testing procedure. Where no challenge is being made to the accuracy of the results of the accused's breath tests, the amended

section 258(d.1) permits the introduction of evidence that gives rise to the possibility that something, apart from normal biological processes, happened between the time of the alleged offence and the time of the breath tests that could have affected the accused's blood alcohol concentration.

As an example, an accused person can still rebut the presumption of identity by leading evidence of bolus drinking or post-offence drinking. [ 61 ] Further on, Hilton J.A. writes the following discussing the issue raised in the appeal, namely, the applicability of the new Criminal Code provisions as opposed to the former ones: [ translation ] [26] The diverging points of view apparent in the contradictory case law and commentary cited by both sides clearly show that the two opposing theses can be defended and are in many respects persuasive.

I believe, however, that the best approach is to characterize the amendments to the Criminal Code as procedural in nature, with the consequence that their application is immediate, starting on July 2, 2008. [27] Indeed, while the new

section 258 Cr. C., compared to the previous wording, may frustrate the expectations of some accused, it does not deprive them of a substantive right . The concept of acquired rights does not find application in procedural matters. Contrary to what has been argued, it is not a matter here of abolishing a means of defence. The presumption of identity between the breathalyzer results and the blood alcohol concentration already existed and remains; the possibility for an accused to reverse this presumption, however, has been restricted.

This restriction complicates the tasks of counsel for the defence but should not be considered to deprive them of any form of evidence to the contrary: the legislator still provides for the possibility of reversing the presumption of identity of the results, although it adjusts the burden of presentation required to do so in proportion to the reliability it henceforth ascribes to modern instruments.

[Citations omitted.] [ 62 ] Dalphond J.A., in agreement with the reasons of Hilton J.A., adds his own reasons. In particular, he states the following: [34] I have read the thorough reasons of my colleagues Hilton and Bich JJ.A. With respect for those who hold a different view, I agree with Hilton J.A. and the Court of Appeal for Ontario in R. v. Dineley , 2009 ONCA 814 , that the amendments to subsection 258 (1) of the Criminal Code were evidentiary in nature and did not eliminate any defence. [35] The elements of the offence and the consequences of the presumptions have not been modified.

As for the means of defence, where the accuracy of the test results is not in dispute (for example, where the defence relies on post-offence drinking to challenge the presumption of identity), they remain as before. Where the accuracy of the results is challenged, the consumption scenario alone (i.e. the testimony of the accused on his/her consumption coupled with an expert report on the rate of elimination of alcohol by the accused) is not sufficient to raise a reasonable doubt about the accuracy of the results given by an approved breathalyser in good order and properly operated by a qualified technician.

Any other evidence tending to dispute the accuracy of the results, however, may be adduced on behalf of the accused, such as: improper calibration, malfunctioning of the breathalyser, error by the technician, lack of any alcohol consumption, etc. If the presumption of accuracy is rebutted, the consumption scenario will remain relevant to establish that the accused did not exceed the 80 mg limit when arrested. [36] In my view, the amendments do not substantially change the law but merely vary the manner of proof regarding a challenge to the accuracy of the breath tests (i.e. a change to rules of evidence).

Actually, it merely reinforces the presumption of accuracy. [ 63 ] In that majority judgment, the Court of Appeal of Quebec arrived at the same conclusion as the unanimous Court of Appeal for Ontario in Dineley with respect to the immediate application of the new provisions as of July 2, 2008. [ 64 ] In that case, MacPherson J.A., writing for the Court, cites with approval an excerpt from R. v. Ng , [7] where, in paragraph 21, Pringle J. states the following: There is little doubt that these amendments go much farther than those challenged in Cvitkovic , and require even more evidence to the contrary than before.

However, I agree with the Crown's submission that the amendments don't take away the Carter defence, they simply add to its requirements. The accused may still call evidence that his consumption was such that his breath readings should have been under the legal limit at the time of driving; but in addition to that, he will have to point to an instrument or operator mistake that would have resulted in the breath readings he says are erroneous.

Whether the additions to the law fatally impede the defence ability to make full answer and defence or amount to an unjustifiable reverse onus provision will need to be considered by another court in relation to the constitutional arguments. However, at this stage, I don't believe that the extent of the additional requirements changes their essential evidentiary character as identified in Cvitkovic and confirmed in Rigitano. [Emphasis added.] [ 65 ] Later on, MacPherson J.A. discusses the elimination of a defence, writing the following: 24 The

summary conviction appeal judge stated: The amendments in question impinge and, in fact, virtually eliminate a defence. To the extent that the amendments provide for a conclusive presumption they are substantive law and not exclusively procedural. In accordance with well established principles Parliament must, therefore, be taken to have intended that the amendments have prospective effect only. [Emphasis added.] 25 In several other cases in which courts have held that Bill C-2 should apply only prospectively, judges have used similar language to describe the recent amendments to s. 258 of the Criminal Code .

For example, in R. v. E. (P.L.) (2008), 79 M.V.R. (5th) 144 (Ont. S.C.), at para. 27 , the court described the Carter defence as "effectively neutered". And in R. v. McDonald , 2008 ONCJ 536 , at para. 12 , the court said that "the defence has for all practical purposes been abolished because the requirements appear to be impossible for the defence to meet ." [Emphasis in original.] 26 With respect, these descriptions strike me as both speculative and overstated. The Carter defence has not been virtually eliminated, neutered or abolished.

It has been changed, but it survives in a different form, subject as always to the ingenuity of defence lawyers and the new jurisprudence that the courts will inevitably enunciate. As explained by Pringle J. in Ng at para. 28 : [I]t's true that the amendments redirect the defence to a new area and require it to address the reliability of the approved instrument in order to secure an acquittal.

However, the legislation doesn't direct the content of the evidence necessary to raise a reasonable doubt: the defence is free to achieve this through cross-examination of the operator, pointing to an error on the face of the test records, or reliance on a problem with, for example, the alcohol standard solution. [ 66 ] These judgments do not deal with the constitutional validity of the impugned provisions. They do, however, define their nature and scope and characterize the burden they impose on the accused. They also uphold the existence of the Carter defence, although in a different form. [ 67 ] In R. v.

Cayer , [8] a recent judgment, Côté J. provides a good

summary of the new law relating to the presumptions of accuracy and identity. He writes: [ translation ] [68] The presumptions of accuracy and identity are now incorporated into 258(1)( c ). [69] Both presumptions apply when the results of the analyses are adduced, whether through the filing of the certificate of analysis or through the testimony of the qualified technician. Paragraph 258(1) (

g) retains solely its function as a documentary exception to the hearsay rule, which allows the prosecution to adduce the test readings by filing the certificate of analysis.

[70] The evidence required to rebut both of these presumptions is the same and must tend to establish or raise a reasonable doubt with respect to the three elements in paragraph 258(1)( c ): 1. the malfunctioning of the machine or its improper operation; 2. analysis results revealing a blood alcohol concentration over 80 mg caused by the malfunctioning or improper operation of the instrument; 3. the accused's blood alcohol level at the time the offence did not exceed 80 mg. [71] The new paragraph 258(1)( d .01) seeks to strengthen the presumptions in paragraph 258(1)( c ).

It renders evidence of consumption inadmissible for the purpose of establishing the malfunctioning of the approved instrument. Even where there is evidence of consumption that the trial judge finds credible, he or she may not infer therefrom that the instrument was malfunctioning or operated improperly. [72] Paragraph 258(1)( d .1), formerly described as an additional presumption of identity, was amended to render it consistent with the other amendments to

section 258. Consequently, the accused may raise a Carter defence to rebut the presumption of identity if the defence does not challenge the accuracy of the results of the analyses.

Instead of strengthening the presumption of identity, as before, the new provision constitutes an exception for situations of bolus drinking and post-offence drinking. [73] In short, in any situation where the accused attempts to rebut either of the presumptions, whenever the evidence to the contrary is inconsistent with the results of the analyses, it must raise a reasonable doubt with respect to the three elements in paragraph 258(1) ( c ). … [75] Since the amendments, the presumptions of accuracy and identity remain presumptions based on an established fact that impose an evidentiary burden on anyone wishing to rebut them. [ 68 ] The Court agrees with this analysis. [ 69 ] Since the new

section 258 Cr. C . came into effect, a few lower court decisions on the constitutional validity of the provisions impugned in this case have been reported. [ 70 ] Some of them found, [9] for various reasons, that

section 258 does not infringe

section 7 and paragraph 11(

d) of the Charter . [ 71 ] Four judgments dealing with this subject have been published in Quebec. [ 72 ] In R. v. Drolet , [10] Chapdelaine J. arrived at the following conclusion with regard to the validity of the presumptions established by the impugned statutory provisions: [ translation ] [242] In

summary, in the view of the Court, the presumption of accuracy provided in subsection 258(1) (

c) Cr. C . and the restrictions imposed by Parliament in paragraph 258(1)( d .01) Cr. C . on rebutting the said presumption do not infringe

section 7 or subsections 11(

c) or (

d) of the Charter . [243] The presumption of identity in section 258(1) (

c) of the Criminal Code , however, violates subsection 11(

d) of the Charter . This infringement cannot be justified under

section 1 because it does not constitute minimal impairment by Parliament in the pursuit of its specific objective. The negative effects of these legislative provisions outweigh the benefits sought by Parliament. [ 73 ] He then applied the technique of severance, striking the parts he deemed to be Charter -infringing from paragraphs 258(1)(

c) and 258(1)( d .1) and upholding the validity of the rest of the provisions, which he found to be consistent with the legislative objective. [ 74 ] He stated the following regarding the parts to be struck down: [ translation ] [254] As for paragraph (

c) of subsection 258(1) Cr. C ., the Court is of the opinion that after striking the words "all of the following three things" and "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", the rest of the statutory provision permits Parliament to achieve the specific objective sought. [255] Thus, the Court upholds paragraph (

c) of subsection 258(1) Cr. C. as constitutionally applicable after severance and finds that it should read 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) [Not in force] (ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,

(iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and (iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician, evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the approved instrument was malfunctioning or was operated improperly and 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 . [256] For the reasons listed above, the requirement of consistency set out in subparagraph (ii) of paragraph ( d .1) of subsection 258(1) is not constitutionally applicable with regard to the accused. [257] The rest of the provision, however, complies with the general, substantial and pressing objective sought by Parliament to sanction any person who, on the evidence, is proved beyond a reasonable doubt to have driven with a blood alcohol level exceeding the legal limit.

Therefore, the court finds paragraph ( d .1) of subsection 258(1) Cr. C. constitutionally applicable to the accused, as modified as follows: ( d .1) if samples of the accused's breath or a sample of the accused's blood have been taken as described in paragraph (

c) or (

d) under the conditions described in that paragraph and the results of the analyses show a concentration of alcohol in blood exceeding 80 mg of alcohol in 100 ml of blood, evidence of the results of the analyses is proof that the concentration of alcohol in the accused's blood at the time when the offence was alleged to have been committed exceeded 80 mg of alcohol in 100 ml of blood, in the absence of evidence tending to show that the accused's consumption of alcohol was consistent with both (

i) a concentration of alcohol in the accused's blood that did not exceed 80 mg of alcohol in 100 ml of blood at the time when the offence was alleged to have been committed, and (ii) the concentration of alcohol in the accused's blood as determined under paragraph (

c) or (d), as the case may be, at the time when the sample or samples were taken ; [ 75 ] In R. v. Laforge , [11] a judgment rendered at the same time as Chapdelaine J.'s judgment, Lortie J. determined that paragraphs 258(1) ( c ), 258(1) ( d .01) and 258(1) ( d .1) Cr. C. violated the presumption of innocence protected by the Charter and that this violation could not be justified under

section 1 of the Charter . [ 76 ] He concluded that, in practice, the technique of severance should be used to return to the prior law. [ 77 ] On October 29, 2010, in R. v. Cayer , [12] Côté J. decided that it had not been established that the new provisions violated the right against self-incrimination protected under

section 11(

c) of the Charter or the

section 7 right to make full answer and defence. [ 78 ] As for the presumption of innocence, he stated that he was convinced that the presumption of accuracy did not violate paragraph 11(

d) of the Charter but that the same could not be said with regard to the presumption of identity under paragraph 258(1)(

c) and paragraph 258(1)( d .1), which did violate paragraph 11(

d) of the Charter . [ 79 ] That being the case, he applied all the steps in the justification analysis and found, at each step, that the evidence was ultimately sufficient to find that the violation of paragraph 11 (

d) was justified under

section 1 of the Charter . [ 80 ] Finally, in R. v. Maalouf , [13] rendered on November 15, 2010, St-Pierre J. arrived at the same conclusion, for the same reasons as Chapdelaine J. THE WORDS "IS CONCLUSIVE PROOF... IN THE ABSENCE OF EVIDENCE TENDING TO SHOW" [ 81 ] Before considering whether

section 258 Cr. C . infringes the accused's Charter rights, it is useful to analyze the effect of one of the amendments made to this provision on July 2, 2008, by the Violent Crimes Act. [14] [ 82 ] The amendment in question is the substitution in paragraph (

c) of the words "is, in the absence of evidence to the contrary, proof" with "is conclusive proof...in the absence of evidence tending to show". [ 83 ] According to the accused, the phrase "is conclusive proof" expresses an intent to make it impossible for an accused to lead evidence to the contrary raising a reasonable doubt. [ 84 ] This argument ignores the words that follow, that is, "in the absence of evidence tending to show", which paraphrase the expression used in R. v.

Moreau , [15] "evidence which tends to establish", to define "evidence to the contrary" in paragraph 237(1)( c ), which later became paragraph 258(1) ( c ), to raise a reasonable doubt. [ 85 ] As Pigeon J. stated in R. v. Proudlock : [16] ... unless Parliament has enacted a presumption in terms which require an accused to "prove" an excuse, he has to do no more than raise a "reasonable doubt" to escape conviction. [ 86 ] The new wording, like the old, [17] imposes no burden on the accused, who need only raise a reasonable doubt as to the validity

of the results and his blood alcohol concentration at the time of the offence. [ 87 ] A number of decisions rendered since the amendments to

section 258 have also arrived at the same conclusion, but for different reasons. [18] THE NATURE OF THE PRESUMPTIONS IN PARAGRAPHS 258(1)(

c) and ( d .1) AND THE BURDEN OF PROOF ON THE ACCUSED [ 88 ] In Oakes , [19] Dickson C.J., writing for the Supreme Court, provides a general overview of these presumptions: 17. In determining the meaning of these words, it is helpful to consider in a general sense the nature of presumptions. ...Presumptions can be classified into two general categories: presumptions without basic facts and presumptions with basic facts. A presumption without a basic fact is simply a conclusion which is to be drawn until the contrary is proved.

A presumption with a basic fact entails a conclusion to be drawn upon proof of the basic fact (see Cross on Evidence , 5th ed., at pp.122-23). 18. Basic fact presumptions can be further categorized into permissive and mandatory presumptions. A permissive presumption leaves it optional as to whether the inference of the presumed fact is drawn following proof of the basic fact. A mandatory presumption requires that the inference be made. 19. Presumptions may also be rebuttable or irrebutable. If a presumption is rebuttable, there are three potential ways the presumed fact can be rebutted.

First, the accused may be required merely to raise a reasonable doubt as to its existence. Secondly, the accused may have an evidentiary burden to adduce sufficient evidence to bring into question the truth of the presumed fact. Thirdly, the accused may have a legal or persuasive burden to prove on a balance of probabilities the non-existence of the presumed fact. [ 89 ] A few years later, in R. v.

Downey , [20] Cory J. refers to Oakes , summarizing the various types of presumptions as follows: 1) Presumptions which operate without the requirement of proof of any basic fact. 2) Presumptions which require proof of a basic fact. (

a) Permissive Inferences: Where the trial of fact is entitled to infer a presumed fact from the proof of the basic fact, but is not obliged to do so. This results in a tactical burden whereby the accused may wish to call evidence in rebuttal, but is not required to do so. (

b) Evidential Burdens: Where the trier of fact is required to draw the conclusion from proof of the basic fact in the absence of evidence to the contrary. This mandatory conclusion results in an evidential burden whereby the accused will need to call evidence, unless there is already evidence to the contrary in the Crown's case. (

c) Legal Burdens: Similar to the burden in (

b) except that the presumed fact must be disproved on a balance of probabilities instead of by the mere raising of evidence to the contrary. These are also referred to as "reverse onus clauses". [ 90 ] When the conditions in

section 258 Cr. C . are met, evidence of the results of the analyses is conclusive proof of the blood alcohol concentration of the accused both at the time of the analyses and at the time when the alleged offence was committed, unless evidence is adduced tending to show the elements listed in paragraphs (

c) or ( d .1), depending on the circumstances of the case. [ 91 ] Although the same evidence can be used to rebut both the presumption of accuracy and the presumption of identity in paragraph 258(1) ( c ), these presumptions are nevertheless distinct, and the presumption of identity can also be rebutted in the manner set out in paragraph 258(1) ( d .1) if the evidence submitted to this end does not call into question the accuracy of the results of the analyses. [ 92 ] These are therefore presumptions with basic facts – the results of the analyses – imposing an evidentiary burden on the party who wishes to rebut them.

In other words, in the absence of any evidence to the contrary within the meaning of

section 258 Cr. C . with respect to the elements referred to in paragraph (

c) or ( d .1) of that provision, the trier of fact is obliged to find that the presumed facts – that is, the blood alcohol concentration at the time of the analyses and at the time of the offences – exist. [ 93 ] If there is no evidence to the contrary contained in the prosecution's case, it is incumbent on the accused to lead such evidence. The accused is not required to prove his innocence, however; it is sufficient if, at the end of the trial, the trier of fact has a reasonable doubt. [ 94 ] This is what was decided by the Supreme Court in R. v.

Proudlock , [21] in which Pigeon J., for the majority, wrote the following: The accused does not have to "establish" a defence or an excuse, all he has to do is to raise a reasonable doubt. If there is nothing in the evidence adduced by the Crown from which a reasonable doubt can arise, then the accused will necessarily have the burden of adducing evidence if he is to escape conviction. However, he will not have the burden of proving his innocence, it will be sufficient if, at the conclusion of the case on both sides, the trier of fact has a reasonable doubt. THE PRESUMPTIONS IN PARAGRAPHS 258(1)(

c) AND ( d .01) AND THE INFRINGEMENT OF

SECTION 7 OF THE CHARTER [ 95 ] The accused contends that the new provisions create a defence so difficult to raise that it is practically illusory and that it is nearly impossible to adduce evidence that the instrument was malfunctioning or was operated improperly, given how difficult it is for the accused to have access to the relevant information. [ 96 ] He adds that the evidence that is known to the accused or to which the accused has access – his alcohol consumption and the

expert opinion based on this consumption – cannot be used to challenge the correct functioning or the proper operation of the approved instrument, and argues that a provision rendering inadmissible evidence that could be essential to a legitimate defence is a violation of sections 7 and 11(

d) of the Charter . [ 97 ] In short, according to the accused, paragraphs 258(1) (

c) and ( d .01) violate his right to make full answer and defence. [ 98 ] Paragraphs 258(1)(

c) and ( d .1) now define what evidence to the contrary may tend to show. Paragraph ( d .01) identifies what does not constitute evidence to the contrary with regard to the malfunctioning or improper operation of the approved instrument.

Under this provision, evidence on the amount of alcohol consumed by the accused, the rate of absorption or elimination of the alcohol by the body, or the calculation based on such evidence of what his blood alcohol concentration was at the time the offence was allegedly committed – all otherwise admissible evidence – cannot constitute evidence tending to show the malfunctioning or improper operation of the approved instrument or the fact that the tests were incorrectly administered. [ 99 ] Thus, when the accuracy of the results is challenged, paragraph 258(1) (

c) applies, and this evidence is devoid of probative value to raise a reasonable doubt as to the accuracy of the results yielded by the test performed with an approved instrument that is in good working order and that was operated adequately by a qualified technician. [ 100 ] The consumption scenario, however, remains relevant to establishing that the accused's blood alcohol concentration did not exceed the legal limit at the time of the arrest.

The accused may also lead any other evidence – such as the improper calibration of the instrument, its malfunctioning, a technician's error, or a lack of alcohol consumption – tending to show that the instrument was malfunctioning or improperly operated and that the reading indicating a blood alcohol concentration over the legal limit resulted from that fact. [22] [ 101 ] With regard to the new

section 258 Cr. C ., in force since July 2, 2008, Hilton J.A. writes the following in R. v. Loiseau : [23] [ translation ] [27] Contrary to what has been argued, it is not a matter here of abolishing a means of defence. … the possibility for an accused to reverse this presumption, however, has been restricted.

This restriction complicates the tasks of counsel for the defence but should not be considered to deprive them of any form of evidence to the contrary: the legislator still provides for the possibility of reversing the presumption of identity of the results, although it adjusts the burden of presentation required to do so in proportion to the reliability it henceforth ascribes to modern instruments. [ 102 ] Dalphond J.A. adds the following: [36] In my view, the amendments do not substantially change the law but merely vary the manner of proof regarding a challenge to the accuracy of the breath tests (i.e. a change to rules of evidence).

Actually, it merely reinforces the presumption of accuracy. [ 103 ] In Dineley , [24] the Court of Appeal for Ontario also decided that the amendments to

section 258 Cr. C . did not abolish a defence, although they did modify it. 26. The Carter defence has not been virtually eliminated, neutered or abolished. It has been changed, but it survives in a different form, subject as always to the ingenuity of defence lawyers and the new jurisprudence that the courts will inevitably enunciate. [ 104 ] As Chapdelaine J. notes, [25] this is not the first time Parliament has intervened to limit or restrict a defence, as it did, for instance, in sections 33.1, 150.1, and 273.2 Cr.

C. [ 105 ] Furthermore, the Supreme Court has recognized that, subject to constitutional review, Parliament retains the power to restrict access to a criminal defence or to remove it altogether, and that such a removal does not automatically infringe

section 7 of the Charter . [26] [ 106 ] Paragraph 258( d .01) Cr. C . does not abolish a defence.

Rather, it states that evidence of certain enumerated facts does not have probative value as evidence to the contrary. [ 107 ] The accused is not under any other restrictions and, by cross-examination during the Crown's case or in defence, may lead any relevant evidence tending to show that the approved instrument was malfunctioning or operated improperly. [ 108 ] Indeed, as the accused states in the oral arguments filed, case law prior to July of 2008 is replete with cases where the accused alleges the malfunctioning of the instrument or its improper operation. [27] [ 109 ] As the Court of Appeal for Ontario predicted in Dineley , [28] a few decisions along those same lines have been reported since July 2, 2008. [29] [ 110 ] As for the accused's complaint regarding the difficulty of accessing the relevant information, a first remark is in order.

In R. v. Maalouf, [30] St-Pierre J. writes that the accused is a privileged witness of the breath sampling procedure. [ 111 ] The judge continues as follows: [ translation ] The evidence contains a few situations where the approved instrument’s readings might have been inaccurate and overestimated the person's blood alcohol concentration. In some of the situations described in the evidence, it could not reasonably have been expected that the defendant could perceive or realize that an aspect of the instrument was not functioning adequately or that the established procedures were not being followed; in

others, however, the information required to bring evidence to the contrary was likely to be within the defendant's knowledge.

As examples, we may cite regurgitation during the procedure leading up to the sample-taking, the defendant's consumption of substances that could be masked by alcohol and not detected by the tests, the number of samples actually provided, the feverish state of the defendant, and the interval between the taking of the samples, especially if the interval is significantly longer than that set out in the Code and not within a consumption scenario. [ 112 ] Other information may be known by the accused.

As for information that the accused cannot or does not know, it may be obtained through legal means, pursuant to the rules governing the disclosure of evidence. [ 113 ] Some evidence – such as the qualified technician's certificate, the analyst's certificate concerning the alcohol standard, and printouts from the instrument – are all routinely disclosed to the accused.

In a given case, the prosecution may have the obligation to disclose other information, and the accused may file a motion before the Court seeking disclosure of other elements it believes to be relevant. [ 114 ] The case law will no doubt evolve in this area to take account of the new legislation; indeed, it has already begun to do so. [31] [ 115 ] Moreover, in situations where the failure to disclose renders the accused incapable of making full answer and defence, remedies such as a stay of proceedings are available. [ 116 ] The evidence adduced on the constitutional issue establishes that the malfunctioning of the approved instrument and the failure to follow the rules ensuring that the procedure for taking and analyzing the breath samples is properly carried out, and therefore that the results are reliable, can generally be revealed by cross-examining the qualified technician or through an expert witness.

Indeed, this is what the judgments cited on this matter indicate. [32] [ 117 ] In this case, no motion for disclosure was brought before the Court, and the Court was not informed of any request made to the prosecution either by or on behalf of the accused that was not satisfied. [ 118 ] At the hearing, the defence did not ask the qualified technician any questions regarding the functioning or use of the approved instrument. [ 119 ] Counsel for the accused, who was absent during the presentation of the Crown's case and therefore during the technician's testimony, made no subsequent request to the Court to cross-examine the technician even though his certificate had been filed. [ 120 ] Similarly, no request was made to cross-examine the analyst whose certificate was filed but who did not testify. [ 121 ] Contrary to what is argued by the accused, in paragraph 258(1)( d .01), Parliament did not render the evidence essential to his defence inadmissible.

It limited the probative value of some evidence with regard to facts that the accused must tend to show to rebut the presumptions in paragraph 258(91)(

c) Cr. C . The accused may, however, file any other evidence tending to show the malfunctioning or improper operation of the approved instrument. [ 122 ] The accused has not shown that Parliament has rendered his defence nearly impossible to make or illusory. [ 123 ] The accused has not shown that paragraphs 258(1)(

c) and ( d .01) infringe the right to make full answer and defence and

section 7 of the Charter . THE PRESUMPTIONS IN PARAGRAPHS 258(1)(

c) AND ( d .1) Cr. C. AND THE INFRINGEMENT OF PARAGRAPH 11(

c) OF THE CHARTER [ 124 ] The accused submits that he bears the burden of rebutting the presumptions and that he must raise a defence if he is to avoid conviction. [ 125 ] He goes on to say that the amendments to paragraph 258(1) (

c) have the effect of forcing the accused to adduce evidence in defence and that in most cases, if he does not wish to be found guilty, this evidence must consist of his testimony. [ 126 ] In his view, Parliament obliges the accused to testify to raise a reasonable doubt. He argues that, if the accused does not do so, he will automatically be found guilty. [ 127 ] He submits that this violates the accused's right against self-incrimination guaranteed in paragraph 11(

c) of the Charter , which states: 11. Any person charged with an offence has the right:

c) not to be compelled to be a witness in proceedings against that person in respect of the offence; [ 128 ] Contrary to the accused's argument,

section 258 Cr. C. does not compel an accused to testify against himself. As the Court stated in the previous

section of this judgment, in some cases, if there is no evidence to the contrary in the Crown’s case, an accused may be required to bring evidence and if he was drinking alone (as in the present case), he may even have to testify about his alcohol consumption. [ 129 ] This context-specific obligation does not arise from the amendments to paragraph 258(1) ( c ), as claimed by the accused, who also argues for a return to the law as it existed before July 2, 2008, and asks the Court to accept his testimony and his Carter defence under the former paragraph 258(1) (

c) Cr. C.

[ 130 ] Therefore, under the new provision – as under the old – the accused may be required to testify if he is the only person who can raise a reasonable doubt regarding the essential elements of the offence, but the new wording of

section 258 does not compel the accused to testify any more than the former wording did. [ 131 ] The accused has not shown any infringement of

section 11(

c) of the Charter . THE PRESUMPTIONS IN PARAGRAPHS 258(1)(

c) AND ( d .1) Cr. C . AND THE INFRINGEMENT OF PARAGRAPH 11(

d) OF THE CHARTER [ 132 ] After summarizing the principles established in the case law regarding the presumption of innocence and statutory presumptions, the accused discusses paragraph 258(1) (

c) Cr.

C . in light of these principles. [ 133 ] His arguments regarding the presumption of identity scheme are set out in paragraphs 56 to 77 of Exhibit R-7. [ 134 ] Essentially, the accused contends that, thanks to paragraph 258(1) ( c ), an accused may be convicted despite the existence of a reasonable doubt as to his guilt in the mind of the trier of fact. [ 135 ] He argues that, it does not inexorably follow from the evidence of the substituted fact in paragraph 258(1) ( c ) – namely, the blood alcohol concentration at the time of the analyses – that the blood alcohol concentration of the accused was beyond the legal limit at the time he had care or control of the vehicle. [ 136 ] No argument has been made with respect to paragraph 258(1) ( d .1) Cr.

C. No argument has been raised concerning the presumption of accuracy. Moreover, in paragraph 107 of Exhibit R-7, the accused asserts that his argument concerns the presumption of identity, unlike the analysis of Duncan J. in R. v. Powichrowski , [33] which is based on the presumption of accuracy. [ 137 ] The representative of the Attorney General, for his part, without admitting the merits of the arguments of the accused, concedes that the temporal presumption of identity infringes paragraph 11(

d) of the Charter but argues that it can be justified under

section 1. [ 138 ] In this case, the constitutional validity of the presumption of accuracy is not challenged. If it were, the Court, applying the principles summarized in R. v. Downey , [34] would conclude that this presumption does not infringe paragraph 11(

d) of the Charter , for the same reasons as those expressed by Côté J. in R. v.

Cayer , [35] as follows: [ translation ] [95] Taken as a whole, the evidence filed by the experts in this case establishes on a balance of probabilities that the Alco-Sensor IV- RBT IV is a reliable instrument that provides accurate readings of the blood alcohol concentration of a person when it is operated by a qualified technician in accordance with the applicable standards. [96] In the absence of reliable evidence raising a reasonable doubt as to the functioning of the instrument or its operation, it would be unreasonable not to conclude that the results it produced were accurate. [97] The Court agrees with the following remarks by Wishart J. in R. v.

Gillespie : 111 Having considered all of the evidence, including that of the witnesses and the various studies that were entered as exhibits, I find that the legislation satisfies the "inexorably follows" test with respect to the presumption of accuracy: Proof of an accused's blood alcohol level as determined by an approved instrument, in the absence of evidence tending to show operator error or machine malfunction and that the error or malfunction resulted in the reading over 80 mg%, leads inexorably to the conclusion that the accused's blood alcohol level at the time of testing exceeded 80 mg%, without any other reasonable possibility. [ 139 ] As for the presumption of identity, because of its temporal nature, it does infringe paragraph 11(

d) of the Charter . It makes it possible for the existence of an essential element of the offence to be presumed instead of proved beyond a reasonable doubt. It must therefore be determined whether this infringement is justified under

section 1 of the Charter .

SECTION 1 JUSTIFICATION [ 140 ] The burden of proving that a limit on a Charter right is reasonable and demonstrably justifiable in a free and democratic society is incumbent on the party seeking to uphold that limit. [ 141 ] The applicable standard of proof is the balance of probabilities. [ 142 ] The Supreme Court sets out the test to determine whether a limit is reasonable and demonstrably justified in R. v. Oakes : [36] To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied.

First, the objective, which the measures responsible for a limit on aCharter right or freedom are designed to serve, must be "of sufficient importance to warrant overriding a constitutionally protected right or freedom". R. v. Big M Drug Mart Ltd., supra at p. 352.. The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s. 1 protection.

It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important. Second, once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified. This involves "a form of proportionality test": R. v. Big M Drug Mart Ltd., supra at p. 352.

Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test.

First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair as little as possible the right or freedom in question: R. v. Big M Drug Mart Ltd., supra at p. 352.

Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance". With respect to the third component, it is clear that the general effect of any measure impugned under s. 1 will be the infringement of a right or freedom guaranteed by the Charter ; this is the reason why resort to s. 1 is necessary. The inquiry into effects must, however, go further.

A wide range of rights and freedoms are guaranteed by the Charter, and an almost infinite number of factual situations may arise in respect of these. Some limits on rights and freedoms protected by the Charter will be more serious that others in terms of the nature of the right or freedom violated, the extent of the violation, and the degree to which the measures which impose the limit trench upon the integral principles of a free and democratic society.

Even if an objective is of sufficient importance, and the first two elements of the proportionality test are satisfied, it is still possible that, because of the severity of the deleterious effects off a measure on individuals or groups, the measure will not be justified by the purposes it is intended to serve. The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society. [ 143 ] Later, in R. v.

Chaulk , [37] the Supreme Court reiterates the stages of the justification analysis: The procedure to be followed when the state is attempting to justify a limit on a right or freedom under s. 1 was set out by this Court in Oakes , supra : 1. The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right or freedom; it must relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important. 2.

Assuming that a sufficiently important objective has been established, the means chosen to achieve the objective must pass a proportionality test; that is to say they must: (

a) be "rationally connected" to the objective and not be arbitrary, unfair or based on irrational considerations; (

b) impair the right or freedom in question as "little as possible"; and (

c) be such that their effects on the limitation of rights and freedoms are proportional to the objective. [ 144 ] Finally, in RJR-MacDonald Inc. v. Canada , [38] McLachlin J. specifies the contextual nature of the

section 1 analysis: That the s. 1 analysis takes into account the context in which the particular law is situate should hardly surprise us. The s. 1 inquiry is by its very nature a fact-specific inquiry. In determining whether the objective of the law is sufficiently important to be capable of overriding a guaranteed right, the court must examine the actual objective of the law.

In determining proportionality, it must determine the actual connection between the objective and what the law will in fact achieve; the actual degree to which it impairs the right; and whether the actual benefit which the law is calculated to achieve outweighs the actual seriousness of the limitation of the right. In short, s. 1 is an exercise based on the facts of the law at issue and the proof offered of its justification, not on abstractions. IMPORTANT OBJECTIVE [ 145 ] The accused admits that Parliament's objective in enacting the amendments to

section 258 Cr.

C. is a sufficiently important objective relating to concerns that are pressing and substantial. [ 146 ] It should nevertheless be recalled that the Supreme Court has on many occasions taken note of the social evil of impaired driving and recognized society's interest in putting a stop to the carnage caused by impaired driving offenders. [39] [ 147 ] On this subject, the testimony of Lyne Vézina, director of highway safety studies and strategies for the S.A.A.Q. (Quebec automobile insurance association), and the documents she filed make it abundantly clear that, despite some improvements to highway safety, this evil persists regardless of the numerous measures taken to fight it. [ 148 ] The evidence establishes that the objective sought is an important objective relating to pressing and substantial matters.

THE PROPORTIONALITY OF THE MEASURE CHOSEN TO ACHIEVE THE OBJECTIVE SOUGHT THE RATIONAL CONNECTION [ 149 ] The measures chosen must have a rational connection with the objective sought. They must be carefully designed to achieve this objective. They must not be arbitrary, unfair, or based on irrational considerations. [ 150 ] By enacting the new legislation, Parliament continues the fight it began long ago against the phenomenon of impaired driving endangering the lives and safety of others. [ 151 ] It created a new legislative scheme of presumptions, which, like the old one, creates an evidentiary shortcut.

[ 152 ] Indeed, like the former paragraph 258(

c) Cr. C ., the new provision, with paragraphs ( d .01) and ( d .1) added, creates a presumption of identity between the blood alcohol concentration at the time of the offence and that revealed through the results of the analyses. [ 153 ] This scheme was designed to help the Crown overcome a significant evidentiary hurdle.

Without it, the task before the Crown would be much more onerous, and evidence that the accused's blood alcohol concentration at the time of the offence corresponded to the results of the analyses would have to be adduced in every case through expert testimony. [ 154 ] Moreover, Parliament wished to make it impossible for the accused's testimony on his consumption, interpreted by an expert, to be sufficient on its own to rebut the presumption and lead to an acquittal.

It intended for the scientific value of the approved instrument to be recognized when the device was functioning as it should, the user operated it properly, and the results were accurately recorded. [ 155 ] Thus, it intended that evidence to the contrary be directly concerned with the malfunctioning of the instrument or its improper operation, with the aim of achieving the objective of the 1969 legislation that created the offence of driving with over 80 mg of alcohol per 100 mL of blood and the accompanying evidentiary scheme. [40] [ 156 ] The measures enacted were carefully designed to achieve the objectives sought.

The presumptions of accuracy and identity in paragraph 258(1)(

c) are rebuttable with evidence raising a reasonable doubt as to whether the approved instrument was malfunctioning or improperly operated, as to whether the results indicating a blood alcohol concentration over the legal limit resulted from this malfunction or improper operation, and as to whether the blood alcohol concentration was over the limit at the time of the offence. [ 157 ] Paragraph 258(1)( d .01) Cr.

C . specifies that evidence regarding the amount of alcohol consumed by the accused, the accused's rate of absorption or elimination of the alcohol, and the calculation based on such evidence of what his blood alcohol concentration was at the time of the offence do not constitute evidence tending to show the malfunctioning or improper operation of the approved instrument or the fact that the analyses were carried out incorrectly. [ 158 ] These measures are based on the scientific value that Parliament assigns to the approved instruments.

Indeed, taken as a whole, the scientific evidence adduced before the Court through the filing of the testimony given before Chapdelaine J. on this subject clearly and convincingly establishes the reliability of the Alco-Sensor-IV RBT-IV instrument used in this case and of the Intolxilyzer R 5000 C. [ 159 ] The scientific evidence also supports the conclusion that the blood alcohol concentration at the time of the offence is generally the same as or higher than that at the time of the analyses. This was also recognized by Ewaschuk J. in R. v. Hummel , [41] by the Court of Appeal for Ontario in R. v.

Phillips , [42] and by the Court of Appeal of Prince Edward Island in R. v. Ballem . [43] [ 160 ] There is therefore a rational connection between the proved fact and the presumed fact.

In the rare cases of bolus drinking, paragraph 258 ( d .1) provides that the accused may raise a Carter defence or lead any other evidence tending to show that his or her alcohol consumption was consistent with a blood alcohol concentration that was not over the legal limit at the time of the offence and with the blood alcohol concentration revealed by the analyses. [44] [ 161 ] The measures enacted are therefore neither arbitrary nor unfair, and they are not based on irrational considerations. A rational connection has been established.

MINIMAL IMPAIRMENT [ 162 ] The measures chosen must also impair the affected right as little as possible.

In Chaulk , [45] Lamer J. wrote the following regarding this aspect of the proportionality test: In my view, the question to be addressed at this stage of the s. 1 inquiry is whether Parliament could reasonably have chosen an alternative means which would have achieved the identified objective as effectively. [ 163 ] He adds that Parliament is not required to seek out and adopt the absolutely least intrusive means of attaining its objective and that, furthermore, when assessing the alternative means which were available to Parliament, it is important to consider whether a less intrusive means would achieve the same objective or achieve it as effectively. [ 164 ] Under paragraph 258(1)(

c) Cr. C ., if the conditions for taking the samples are met, evidence of the results of the analyses is conclusive proof of the blood alcohol concentration of the accused at the time of the alleged offence. This is the so-called presumption of identity. [ 165 ] Under that same provision, the results are also proof of the accused’s blood alcohol concentration at the time of the analyses.

This is the so-called presumption of accuracy. [ 166 ] Thus, there is a double presumption, whereby the accused's blood alcohol concentration is, at two different points in time, identical to that revealed by results of the analyses. If not rebutted, the presumption of identity establishes an essential element of the offence. To be acquitted, the accused must rebut the presumption. It may be that the evidence adduced to this end is consistent with the results of the analyses when they were made. This is in fact the situation contemplated in paragraph ( d .1).

In such a case, the presumption of accuracy maintains its full effect and the results are proof of the accused's blood alcohol concentration at the time of the analyses, but the accused will be acquitted if the evidence is also consistent with a blood alcohol concentration under the legal limit at the time of the offence because the presumption of identity has been rebutted. [ 167 ] When the evidence is inconsistent with the results of the analyses at the time they were made, the accused must rebut both presumptions, or the double presumption, since in such a situation the accused must seek to rebut the presumption of identity, which establishes the essential element of the offence, by impugning the accuracy of the results of the analyses both at the time they were made

and at the time of the offence. [168] In

summary, paragraph 258(1)(

c) establishes a double presumption. The presumption of identity replaces proof of an essentialelement of the offence, namely, the blood alcohol concentration at the time of the offence. This first presumption may be rebuttedwithout attacking the other presumption, that of accuracy.

If, however, the means of attacking the presumption of identity is to attack theaccuracy of the results and therefore the presumption of the accuracy of the approved instrument, the presumption of accuracy must alsobe rebutted. [169] The accused may then rebut the presumption of identity with evidence tending to show the three elements set out in paragraph258(1)(c). It is not necessary, however, for the accused to bring different evidence for each element. It may be that a single piece ofevidence tends to show at once the existence of each.

The elements listed in paragraph (d.01), however, are not included in the evidencetending to show the existence of some of the elements in 258(1)(c). [170] In R. v. Cayer,[46] Côté J. stated the following on this subject: [translation] [136] While the accused must raise a reasonable doubt as to the three elements in paragraph 258(1)(c), he or she is not required to presentdifferent evidence for each element.

Therefore, evidence to the contrary showing that the over 80 mg result of the analyses was causedby the malfunctioning of the instrument may be sufficient to raise a reasonable doubt as to the fact that the accused's blood alcoholconcentration was over 80 mg at the time of the offence. Indeed, it appears that this was recognized in R. v. Vardy, 2010 ONCJ 255 andR. v.

Duff, 2010 ABPC 31. [137] It would be contrary to logic and the spirit of the new provisions, which in fact seek to give more weight to the scientific reliabilityof the approved instrument, to permit the presumption of identity to lead to the accused's guilt when the evidence clearly tends to showthat the analysis result of over 80 mg was caused by an instrument malfunction. [171] Indeed, since uncontested results constitute proof of the accused's blood alcohol concentration at two points in time – that of theanalyses and that of the offence – they no longer prove the accused's blood alcohol concentration at either of these times when there isevidence raising a reasonable doubt as to the validity of the results showing a blood alcohol concentration over the legal limit. [172] Moreover, interpreting paragraph 258(1)(

c) as requiring the accused to adduce independent evidence of his blood alcohol levelat the time of the offence, when he has already offered evidence raising a reasonable doubt as to the results indicating a blood alcoholconcentration over the legal limit due to the malfunctioning or improper operation of the approved instrument, would be tantamount torequiring the accused to prove his innocence, since evidence raising a reasonable doubt as to his blood alcohol concentration at the timeof the offence already exists and therefore there can be no presumption that it was over the legal limit. [173] In R. v. Ruzic,[47] Lebel J. wrote the following: If a statutory provision is capable of an

interpretation that is constitutional and one that is not, then the courts should choose theconstruction that conforms with the Charter: Slaight Communications Inc. v. Davidson, (SCC), [1989] 1 S.C.R. 1038, atp. 1078; R. v. Mills, (SCC), [1999] 3 S.C.R. 668, at paras. 22 and 56. (See also generally R. v. Nova ScotiaPharmaceutical Society, (SCC), [1992] 2 S.C.R. 606.) [174] The position of the representative of the Attorney General on this subject is therefore accepted. Paragraph 258(1)(

c) should beinterpreted as intending that an accused who has raised a reasonable doubt as to whether his blood alcohol concentration at the time ofthe analyses exceeded the legal limit also raise a reasonable doubt as to his blood alcohol concentration at the time of the offence. [175] This is in fact what the courts had decided before the new

section 258 Cr. C.[48] came into force, even after the enactment andcoming into force of the former paragraph (d.1), the application of which, according to Lebel J. in R. v. Gibson,[49] was requiredregardless of whether the accused contested the accuracy of the approved instrument or the presumption of identity. [176] The defence created in these provisions is considered in the

section discussing the infringement of both the principle offundamental justice that is the presumption of innocence and

section 7 of the Charter. The Court found that the presumptions and themeans to rebut them do not infringe the right to make full answer and defence protected by

section 7. Regarding the defences available tothe accused, the Court refers to the reasons it set forth in that section, which address several arguments raised by the accused, although inthe context of the presumption of innocence. [177] To recall the essential points, the issue is whether Parliament could reasonably have chosen a measure that would have allowedit to achieve the identified objective as effectively. [178] The accused does not suggest any alternative. Rather, he urges a return to the law in force before July 2, 2008, which allowedthe testimony of the accused on his consumption and its

interpretation by an expert to be sufficient at all times to rebut the presumptionsand lead to an acquittal – which is, in fact, precisely what Parliament wished to address. [179] Moreover, with respect, the Court does not believe that the solution in R. v. Drolet,[50] which applied the technique ofseverance, could bring us any closer to the legislative objective: first, the objective sought cannot be reduced to countering the effects ofthe judgment in Boucher,[51] and second, it does not appear obvious that the proposed solution has this effect. [180] The new

section 258 reveals Parliament's intention to strike a balance between the public interest in the eradication of impaireddriving and the need to preserve the individual rights protected by the Charter. [181] The Court finds that it is established that, in achieving Parliament’s objective, paragraphs 258(1)(c), (d.01) and (d.1) Cr. C.impair as little as possible the right protected under

section 11(

d) of the Charter. Therefore, it must be determined whether the harmful

effects that the provisions have on the presumption of innocence are p

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