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CERTIFICATION OF THE ALCOHOL STANDARD USED-SECTION 320.31(1)(a) OF THE CRIMINAL CODE

In R. v. Goldson, 2021 ABCA 193, May 21, 2021, the accused was charged with the offence of operating a motor vehicle with a blood alcohol level equal to or exceeding eighty milligrams, contrary to section 320.14(b) of the Criminal Code.  At his trial, an issue arose as to whether the Crown had proven, as required by section 320.31(1)(a) of the criminal Code that the alcohol standard used was “certified by an analyst”. Section 320.31(1)(a) states as follows:

If samples of a person’s breath have been received into an approved instrument operated by a qualified technician, the results of the analyses of the samples are conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made if the results of the analyses are the same — or, if the results of the analyses are different, the lowest of the results is conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made — if

(a) before each sample was taken, the qualified technician conducted a system blank test the result of which is not more than 10 mg of alcohol in 100 mL of blood and a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst [Emphasis added]

The Crown called the qualified technician who performed the breathalyzer test as a witness. The technician testified as follows, concerning the certification of the alcohol standard utilized:

Q. So you had indicated — in your evidence you said the alcohol standard is certified by an analyst?

A Yes.

Q And what information do you have based on that?

A There’s a certificate of analyst that’s posted on the wall, and then when we run our initial checks of the system, we would match — well, first check that it’s not expired, and then we would check that to — there’s another little certificate on the side of the — just a handwritten certificate on the side of the instrument itself.

Q So, basically, your knowledge of the alcohol standard being certified by an analyst is a certificate. 

A Yeah. It’s an approved certificate that’s posted on the wall there, and we wouldn’t conduct any tests if it had have been expired or anything like that.

The trial judge held that this was hearsay evidence and inadmissible to satisfy the requirements of s. 320.31(1)(a) that the alcohol standard was certified by an analyst. The accused was acquitted, but the acquittal was overturned by the summary conviction appeal court.  The accused was granted leave to appeal to the Alberta Court of Appeal on the following question of law:

What is the proper interpretation of “certified by an analyst” in s 320.31(1)(a) of the Criminal Code and must the Crown tender evidence from an analyst, whether viva voce or through a certificate of analyst, to prove the requirements of this section?

The appeal was allowed and the acquittal restored.

The Alberta Court of Appeal concluded that compliance with section 320.31(1)(a) of the Criminal Code requires “evidence from the analyst regarding certification, either by way of the analyst’s viva voce evidence or by way of the statutorily recognized Certificate of Analyst”  (at paragraphs 83 to 85):

The answer to the question on leave is as follows: the proper interpretation of “certified by an analyst” in s. 320.31(1)(a) of the Criminal Code requires evidence from the analyst regarding certification, either by way of the analyst’s viva voce evidence or by way of the statutorily recognized Certificate of Analyst. The QT’s evidence about whether an alcohol standard is certified by an analysis is inadmissible hearsay.

Given our conclusion on the question, the appeal is allowed. Without evidence that the alcohol standard was certified by an analyst, the Crown has failed to establish the presumption of accuracy, which was the sole basis on which it was relying to establish the elements of the offence. The appellant is therefore acquitted of the “over 80” charge.

Given our conclusion on the question, the appeal is allowed. Without evidence that the alcohol standard was certified by an analyst, the Crown has failed to establish the presumption of accuracy, which was the sole basis on which it was relying to establish the elements of the offence. The appellant is therefore acquitted of the “over 80”