Impaired Driving: Evidentiary Issues for “80 and Over” Clarified
R. v. Rousselle, 2025 SCC 35 (CanLII), is one of the two most recent decision from the Supreme Court of Canada on s. 320.14(1)(b), “80 and over”. There are several reasons why this case is important for defence counsel practising in the impaired driving offences area.
1. The Crown can rely on certificate evidence from qualified technician (which must be signed) or viva voce evidence to prove that alcohol standard used in instrument system calibration test was certified by analyst in order to benefit from statutory presumption of accuracy for breath sample analyses results in s. 320.31(1) of the Criminal Code [para. 51].
2. The accused’s breath alcohol test results are a “conclusive proof’” of her Blood Alcohol Concentration ("BAC") at the time of the tests [para. 41].
3. Because the statutory presumption of accuracy must be proved beyond a reasonable doubt, the Crown must “disclose to the accused” information “sufficient to determine” whether the preconditions in s. 320.31(1)(a) to (c) have been met [paras. 43 and 49, respectively]:
(a) the results of the system blank tests;
(b) the results of the system calibration checks;
(c) any error or exception messages produced by the approved instrument at the time the samples were taken;
(d) the results of the analysis of the accused’s breath samples; and
(e) a certificate of an analyst stating that the sample of an alcohol standard that is identified in the certificate is suitable for use with an approved instrument.
4. Ss. 320.32 and 320.33 functions as statutory exceptions to the common law rule against the admissibility of hearsay evidence and “may be used for other purposes” [para. 56].
Takeaway:
The 2018 amendments to the Criminal Code simplified and streamlined the trial process and made the impaired driving offences easier to prosecute. Defence counsel should meticulously scrutinize disclosure, focus on evidentiary issues, and pursue all available defenses, including Charter violations, to challenge the admissibility of the accused’s breath alcohol test results at trial.
