Blood-Alcohol Level and The Presumption of Identity

Section 258(1)(c)(ii) of the Criminal Code is part of the scheme to ease proof of the concentration of alcohol in the accused’s blood for, among other things, proving the “over 80” offence in section 253(b).   It provides the prosecution with an evidentiary short cut of sorts.  By putting the certificate of qualified technician into evidence, the prosecution is able to rely upon the breathalyzer test results as proof of an accused’s blood-alcohol level at the time of the offence, without the burden of calling further evidence on the point if the following preconditions are met:

•         the breath samples were taken pursuant to a valid demand and in accordance with section 254(3); 

•         each breath sample was taken “as soon as practicable” after the time when the offence was alleged to have been committed [the question to be asked is whether the police acted reasonably in circumstances];

•         the first sample was not taken more than two hours after the time when the offence was alleged to have been committed;

•         an interval of at least 15 minutes between samples;

•     each sample was received directly into an approved instrument operated by a qualified  technician;

•         the analysis of each sample was made using an approved instrument operated by a qualified technician; and

•         that there is an absence of evidence to the contrary (see "Rebutting the Presumption of Identity" below). 

In short, 258(1)(c)(ii) provides that where the breath samples were 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” then, provided certain other conditions are fulfilled, the prosecution may rely upon the presumption of identity. 

Rebutting the Presumption of Identity    The presumption of identity deems the results of the breath tests to be proof of the accused’s blood alcohol level at the time of the offence in the absence of evidence capable of rebutting the presumption--specifically, evidence tending to show that the blood-alcohol reading is not accurate, is the result of machine error or human error in the operation of the machine,  and that the actual blood alcohol concentration of the accused at the relevant time was 80mg/100ml or below.

Proof of the time of the offence

Proof of the time of the offence is a condition precedent if the Crown is to rely on the certificate of qualified technician as conclusive proof of its contents. That obligation is not satisfied by proof of the probable time of the offence even if based on reasonable expectations or assumptions when proof of a specific time of the offence is required. A guess is still a guess no matter how reasonably based. Probabilities are not sufficient to establish the condition precedent under s. 258(1) (c)(ii) of the Criminal Code.

R. v DeCastro, 2016 ONSC 8114 (CanLII), at para 14.

CRIMINAL CODE

258 (1) Proceedings under section 255 - 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 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

…

(ii) 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,

…

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 concentrations determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things -- that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused's blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused's blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged  to have been committed;