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Supreme Court of Canada

Criminal law—Drunk driving charge—Viva voce evidence—Whether statutory rebuttable presumption applicable—Whether proof of suitability of substance necessary—Criminal Code, ss. 237(1)(c), 237(1)(f).

The appellant was acquitted of a drunk driving charge under s. 236 of the Criminal Code. The Crown, electing to proceed under summary conviction procedure, had sought to prove the charge by viva voce evidence, relying on the presumption created by s. 237(1)(c), and the appellant had called no evidence in defence.

Two questions of law arising out of a stated case were put to the courts: whether the trial judge erred 1) in concluding that the statutory rebuttable presumption could only be applied to a case where the Crown had proceeded by way of certificate evidence and 2) in concluding that there had to be proof of the suitability of the substance used in the breathalyzer machine at the time of the analyses of the samples of the accused’s breath. These questions were answered in the affirmative by the courts below and the acquittal was set aside.

Held: The appeal should be dismissed.

With respect to the first question: it is manifest from a plain reading of s. 237 that assuming the requirements of the various subsections are satisfied, the Crown may rely on the presumption of subs. (1)(c) whether it proceeds to prove the offence by means of the viva voce evidence of a qualified technician or by the production of a certificate under subs. (1)(f).

With respect to the second question: admittedly, no such element of proof by the Crown is expressed in s. 237(1)(c) and the Court should avoid reading into the section technical requirements which do not flow from the language used by Parliament.

R. v. Crosthwait, [1980] 1 S.C.R. 1089; R. v. Gorgichuk (1970), 1 C.C.C. (2d) 492; R. v. Rogers (1972), 6 C.C.C. (2d) 496; R. v. York, September 16, 1980

[Page 567]

(B.C.C.A.); R. v. Ware (1975), 30 C.R.N.S. 308, referred to.

APPEAL from a judgment of the Court of Appeal for Ontario affirming the order on a stated case. Appeal dismissed.

Gerald R. Kluwak and Barry Prentice, for the appellant.

A.G. Campbell, Q.C., for the respondent.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—The appellant is here by leave on two questions of law arising out of a stated case which followed his acquittal of a drunk driving charge under Criminal Code, s. 236. The Crown, electing to proceed under summary conviction procedure, sought to prove the charge by viva voce evidence, relying on the presumption created by s. 237(1)(c). The accused called no evidence in defence.

The case stated at the request of the Crown and pursuant to Criminal Code, s. 762 contained four questions as follows:

(i) Did I err in law in concluding that the statutory rebuttable presumption contained in Section 237(1)(c) of the Criminal Code could only be applied to a case where the Crown had proceeded by way of certificate evidence?

(ii) Did I err in law in concluding that there had to be proof of the suitability of the substance or solution used in the breathalyzer machine at the time of the analyses of the samples of the accused’s breath, and proof of how the chemical analyses were conducted where no certificate evidence was relied upon and the Crown proceeded by way of viva voce evidence?

(iii) Did I err in law in concluding that the demand made pursuant to Section 235(1) was not made forthwith or as soon as practicable by reason of the delay in taking the roadside sample?

(iv) Did I err in concluding that the samples taken as provided for in Section 237(1)(c)(ii) were not taken as soon as practicable by reason of the delay in taking the roadside sample?

[Page 568]

Robins J. before whom the issues came answered all questions in the stated case in the affirmative. In consequence, he allowed the Crown’s appeal, set aside the acquittal and remitted the matter to the trial judge. On further appeal to the Court of Appeal, that Court affirmed the order of Robins J. for the reasons given by him. As indicated above, the case is here by leave on two only, the first two, of the questions set out in the stated case.

I need not dwell at any length on the first of the questions that is before this Court. The reasons of Robins J. are sufficient support for the conclusion that the rebuttable statutory presumption may be raised by the Crown by viva voce evidence and that it is not restricted, in its resort to s. 237(1)(c) to certificate evidence. Section 237(1)(c) is in these terms:

237. (1) In any proceedings under section 234 or 236,

(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 235(1), if

(i) [not yet proclaimed]

(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and in any event 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) a chemical analysis of each sample was made by means of an approved instrument operated by a qualified technician.

evidence of the results of the chemical analyses so made is, in the absence of any evidence to the contrary, proof that the proportion of alcohol in the blood of the accused at the time when the offence was alleged to have been committed was, where the results of the analyses are the same, the proportion determined by such analyses and, where the results of the analyses are different, the lowest of the proportions determined by such analyses;

Robins J. addressed the first question as follows:

[Page 569]

Whether the Crown seeks to establish the offence through the certificate of a qualified technician admissible under section 237(1)(f) or through the oral testimony of the technician, it is entitled to receive the evidentiary advantage afforded it by section 237(1)(c). The evidence of the results of the chemical analysis must in each case by virtue of section 237(1)(c), be taken to constitute proof of the proportion of alcohol in the blood of the accused at the material time “in the absence of any evidence to the contrary”.

There is no merit in my view to the submission made on behalf of the respondent that section 237 is designed solely for the purpose of permitting certificate evidence; the section presents no difficulty of interpretation on this point. I think it manifest from a plain reading of it that assuming the requirements of the various subsections are satisfied, the Crown may rely on the presumption of subsection (1)(c) whether it proceeds to prove the offence by means of the viva voce evidence of a qualified technician or by the production of a certificate under subsection (1)(f). The Court of Appeal indicated in the case of Regina v. Ware (1975), 30 C.R.N.S. 308 that both methods of proof are available to the Crown.

On the second question, counsel for the appellant restricted himself to the first part thereof, that concerning proof of the suitability of the substance or solution used in the breathalyzer machine at the time of the analyses of the samples of the accused’s breath. It was his contention that even if he was wrong as to the requirement of certificate evidence only to bring the Crown within s. 237(1)(c), it was nonetheless necessary, where the Crown proceeded by viva voce evidence, as it did here, to make proof of the suitability of the substance or solution used in the breathalyzer machine. Admittedly, no such element of proof by the Crown is expressed in s. 237(1)(c) and the principle expressed by Pigeon J. for this Court in R. v. Crosthwait[1] would appear to exclude its importation into that provision. The Crosthwait case concerned a drunk driving charge, similar to that in this case, but there the Crown sought to raise the statutory presumption under s. 237(1)(c) by producing a certificate of analyses of two breath tests through the officer who took the tests. A question was raised in that case as to the extent to which reliance could be placed upon a certificate made pursuant to s. 237(1)(f). Pigeon J. said

[Page 570]

this in the course of his reasons (at pp. 1099-1100):

In the instant case, the certificate filed at the trial fully complies with the conditions stated in para. (f). It was, therefore, by itself, evidence of the results of the analyses. With respect, I cannot agree that there is another implicit condition namely, that the instrument used must be shown to have been functioning properly, and the technician had followed the manufacturer’s instructions in testing its accuracy. It is clear from the wording of the Code that the rebuttable presumption arises from the mere statements in the certificate itself. The presumption may no doubt be rebutted by evidence that the instrument used was not functioning properly but the certificate cannot be rejected on that account. It may very well be that a scientist would not sign a certificate of analysis on the basis of the tests as performed by the technician, but this is irrelevant. Parliament has prescribed the conditions under which a certificate is evidence of the results of breath analyses and did not see fit to require evidence that the approved instrument was operating properly. Parliament did not see fit to require a check test be made with a standard alcohol solution and made reference only to the solution used for the actual test. Technicians are instructed to make a check test but the making of this test or its results have not been made conditions of the validity of the certificate and it has not been provided that the certificate would not be valid if it was not shown that the instrument had been maintained and operated in accordance with the manufacturer’s instruction.

This does not mean that the accused is at the mercy of the technician: while the certificate is evidence by itself, the facts of which it is evidence are “deemed to be established only in the absence of any evidence to the contrary”. Thus, any evidence tending to invalidate the result of the tests may be adduced on behalf of the accused in order to dispute the charge against him. As was pointed out in R. v. Proudlock, [[1979] 1 S.C.R. 525], it is not necessary in such cases that the rebutting evidence should do more than raise a reasonable doubt and, of course, this evidence may be sought in the depositions given by witnesses of the Crown as well as in depositions of defence witnesses. Therefore, in my view, the situation here is that the certificate was evidence of the results of the analyses by virtue of the express provisions of the Criminal Code, however, the further question remained: Was there evidence to the contrary sufficient at least to raise a reasonable doubt?

[Page 571]

Counsel for the appellant submitted, however, that he was not seeking to have the Court introduce an element of proof into a provision which did not express it but rather was seeking to have the Court give a proper interpretation to s. 237(1)(c) in the light of the various provisions of s. 237(1), including s. 237(1)(e) and (f). Subsections (1)(e) and (1)(f) are “certificate” clauses reading respectively as follows:

237. (1)…

(e) a certificate of an analyst stating that he has made an analysis of a sample of any substance or solution intended for use in an approved instrument and identified in the certificate and that the sample analyzed by him was found to be suitable for use in an approved instrument, is evidence that the substance or solution so identified is suitable for use in an approved instrument, without proof of the signature or the official character of the person appearing to have signed the certificate; and

(f) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 235(1), a certificate of a qualified technician stating

(i) that each chemical analysis of the samples has been made by means of an approved instrument operated by him in which a substance or solution suitable for use in that approved instrument and identified in the certificate was used,

(ii) the results of the chemical analyses so made,

and

(iii) if the samples were taken by him,

(A) [not yet proclaimed]

(B) the time when and place where each sample and any specimen described in clause (A) was taken, and

(C) that each sample was received from the accused directly into an approved container or into an approved instrument operated by the technician,

is evidence of the statements contained in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate.

Emphasis was laid by counsel for the appellant on the word “identified” in para. (f)(i). What

[Page 572]

counsel asserted was that this word did no more than require that the certificate name the substance or solution but left its suitability to be proved otherwise by the Crown. He invoked as well the judgment of Johnson J.A. in R. v. Gorgichuk[2] decided by the Alberta Appellate Division and the judgment of Taggart J.A. in R. v. Rogers[3] a decision of the British Columbia Court of Appeal. Counsel’s point was that where the Crown proceeded by certificate evidence under s. 237(1)(f) to seek the advantage of the presumption under s. 237(1)(c), it was still necessary to prove the suitability of the substance or solution in the breathalyzer instrument, either by resort to a certificate under (e) or by the evidence of a qualified witness, namely, the analyst. A fortiori, in his submission, was this necessary if the Crown proceeded by viva voce evidence alone to raise the presumption.

Reliance was placed on the following passage from the reasons of Johnson J.A. in the Gorgichuk case, at p. 496:

This other question also concerns the technician’s certificate. It is whether the production of this certificate alone, without at the same time producing an analyst’s certificate that he has analyzed the “substance or solution” and found it “suitable for use in an approved instrument” is sufficient to prove the proportion of alcohol in the blood of the appellant.

Subsection (1)(c) provides:

(c) where a sample of the breath of the accused has been taken pursuant to a demand made under subsection (1) of Section 223, if

(iv) a chemical analysis of the sample was made by means of an approved instrument operated by a qualified technician,

evidence of the result of the chemical analysis so made is, in the absence of any evidence to the contrary, proof of the proportion of alcohol in the blood of the accused at the time when the offence was alleged to have been committed;

[Page 573]

This on its face would appear to be all that is required to establish proof of the alcohol content of the blood. However, the following clauses of the subsection make it clear that the approved instrument can only be operated if it is supplied by a “substance or solution” analyzed by an analyst and found to be suitable for use in an approved instrument (s-s. (1)(f)(i)).

Subsection (6) defines an approved instrument and the Approved Breathalyzer Order, SOR/69-583, approved a “Borkenstein Breathalyzer as suitable for the purposes of section 224A of the Criminal Code”. There is no provision made for the approval of the “substance or solution” intended to be used in the approved instrument other than by an analyst who has analyzed a sample of the same and his finding of suitability may be proved by his certificate under s-s. (1)(e). It is clear such a certificate, or failing that, viva voce evidence by the analyst, is a part of the Crown’s case when it proceeds under these sections.

The Rogers case, unlike Gorgichuk, was one where the Crown sought to prove a drunk driving charge against an accused by viva voce evidence, that of a police officer, a qualified technician, who took breath samples with an approved breathalyzer instrument. As in Gorgichuk, so in Rogers, the Court held that it was necessary for the Crown to introduce evidence to show that the approved instrument contained a substance or solution suitable for use in the breathalyzer instrument, as well as evidence that a chemical analysis was conducted. “Without such evidence” said Taggart J.A. for the Court, “there is no proper basis for an opinion as to the quantity of alcohol in the bloodstream of the person who is the subject of the analysis” (at p. 500).

The judgment in Rogers was somewhat diluted by the British Columbia Court of Appeal in its recent judgment in R. v. York, September 16, 1980, not yet reported. It was an appeal from affirmation of a summary conviction on a drunk driving charge and the argument made on behalf of the appellant was that there was no evidence as

[Page 574]

to the suitability of the solution used in the breathalyzer instrument, there was no evidence as to the identity of the solution and there was no evidence as to the making of a chemical analysis. As in the Rogers case, the Crown sought to prove the charge by the viva voce evidence of a qualified technician who took the breath samples with an approved breathalyzer instrument.

Taggart J.A., who delivered the judgment in Rogers, delivered the principal judgment in the York case. The conviction was affirmed and the distinction drawn in respect of the Rogers case was that there the appeal was by way of stated case and not by way of a straight appeal alleging a want of evidence. Taggart J.A. added that he was not at all satisfied that the nature of the evidence adduced before the trial judge in the Rogers case was in any way similar to the nature of the evidence adduced in the York case. On the merits, he was of the view that the testimony of the qualified technician as to his use of an approved breathalyzer instrument and with which he took the required breath samples followed by a check of the instrument, was sufficient to enable the County Court Judge to draw the inference that the solution used was suitable and that it was properly identified. Section 237(1)(c) was satisfied without more, even as to the chemical analysis.

I find considerable difficulty in reconciling the two cases of Rogers and York but, in any event, I think that Robins J., who purported to follow the judgment of the Ontario Court of Appeal in R. v. Ware[4] was correct in doing so even if he were not bound to it by stare decisis. Lacourcière J.A. who spoke for the Ontario Court of Appeal in the Ware case said this (at p. 315) on the point in issue here:

…in my view, the learned trial Judge was in error in holding that the suitability of the substance or solution for use in an approved instrument had to be proved as part of the Crown’s case before the accused could be found guilty of the offence charged. In my view subs. (1)(e) is merely an evidentiary subsection providing the Crown with the means by which to rebut any evidence that the substance or solution was unsuitable. I am of

[Page 575]

opinion that it is sufficient for the Crown, in order to prove the commission of the offence, merely to bring the accused within subs. (1)(a) and to file the certificate under subs. (1)(f) or prove the three enacted requirements of subs. (1)(c) by viva voce evidence.

Parliament created a new offence, the actus reus of which includes the prohibited blood‑alcohol concentration; it set out a workable procedure to prove it. With great respect, it is not for the courts to defeat the laudable social purpose of the legislation, i.e., keeping off the roads people whose blood-alcohol proportion may exceed the prescribed limit, by adding, as part of the required [sic] proof of an offence, the necessity of an analysis of the solution in every case. I am required to “approach the matter by considering what is the mischief aimed at by this Act” […] and to avoid reading into the section technical requirements which do not flow from the language used by Parliament.

In short, the Crown may obtain the advantage of the statutory presumption under s. 237(1)(c) by offering proof, by certificate or by oral evidence, of the three elements specified therein. Nothing more is required, in the absence of any evidence to the contrary. In my opinion, both Gorgichuk and Rogers were wróngly decided.

I would dismiss the appeal.

Appeal dismissed with costs.

Solicitors for the appellant: Bastedo, Cooper, Kluwak & Shostack, Toronto.

Solicitor for the respondent: The Attorney General for Ontario, Toronto.

 



[1] [1980] 1 S.C.R. 1089.

[2] (1970), 1 C.C.C. (2d) 492.

[3] (1972), 6 C.C.C. (2d) 496.

[4] (1975), 30 C.R.N.S. 308.

 

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