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OFFENCES-80 OR OVER-SECTION 320.14(1)(b) CRIMINAL CODE-PROOF OF ALCOHOL STANDARD BEING “CERTIFIED BY AN ANALYST”-SECTION 320.31(1)(A) CRIMINAL CODE

In Rousselle v. R., 2024 NBCA 3, January 11, 2024, the accused was convicted of the offence of 80 or over, contrary to section 320.14 Criminal Code.  His appeal of conviction was dismissed by the summary conviction appeal court.  He was grated leave to appeal to the New Brunswick Court of Appeal.  The issue on appeal was the proper interpretation of section 320.31(1)(a) of the Criminal Code which requires proof that alcohol standard used was “certified by an analyst” for the results of the analysis to be proof of the accused’s blood-alcohol level.

The appeal was dismissed.  The Court of Appeal concluded that proof that the alcohol standard was certified by an analyst can be achieved through the certificate of the qualified technician (at paragraphs 1 to 8):

Tony Rousselle seeks leave to appeal the decision by which a judge of the Court of King’s Bench, sitting as a summary conviction appeal court judge, found him guilty on a charge of having had a blood alcohol concentration equal to or exceeding 80 mg of alcohol in 100 mL of blood within two hours after ceasing to operate a motor vehicle, an offence under s. 320.14(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46.

In 2018, Parliament amended the Code to reform the offence of impaired driving, to simplify and modernize the provisions relating to the proof of blood alcohol concentration, to reorganize the presumptions and evidentiary shortcuts available to the Crown, and to streamline prosecutions. In this appeal, the Court is tasked with determining whether these amendments now require the Crown, in order to enjoy the presumption of accuracy which lies at the heart of this new scheme, to lead additional evidence at trial directly from an analyst (either by certificate or by way of viva voce evidence) that the alcohol standard was “certified” by an analyst.

There are two conflicting lines of jurisprudence in this country regarding the issue before the Court. To date, two courts of appeal, in Alberta and in the Yukon, have ruled on the issue.

In R. v. Goldson, 2021 ABCA 193, [2021] A.J. No. 709 (QL) (application for leave to appeal to the S.C.C. dismissed, [2021] S.C.C.A. No. 294 (QL)), the Court of Appeal of Alberta held that the phrase “certified by an analyst” in s. 320.31(1)(a) of the Code requires that certification of the alcohol standard be provided directly by the analyst either by certificate or by way of viva voce evidence. According to that Court, a qualified technician’s evidence stating that the alcohol standard was certified by an analyst is inadmissible hearsay which, as a result, does not allow the Crown to establish that the conditions for reliance on the presumption of accuracy set out in the new s. 320.31(1) have been met.

In R. v. MacDonald, 2022 YKCA 7, [2022] Y.J. No. 73 (QL), the Court of Appeal of Yukon (Bauman C.J.B.C., writing for the Court) considered the interpretation given to s. 320.31(1) by the Court of Appeal of Alberta in Goldson and adopted a contrary interpretation. In MacDonald, the Court held that the exception to the hearsay rule provided for in the Code survived the amendment to the Code. As in the past, at trial, the Crown need only lead the evidence of a qualified technician, either by certificate or by oral testimony, attesting to the fact that he or she used an alcohol standard that was certified by an analyst; only the qualified technician’s evidence is required. In other words, the Crown may benefit from the hearsay evidence of the qualified technician to satisfy the preconditions set out in s. 320.31(1).

In my view, the interpretation to be preferred is the one adopted by Bauman C.J. in MacDonald, the interpretation that was adopted in this case by the summary conviction appeal judge.

Absent a constitutional challenge, our function is to give effect to Parliament’s intention, which is clear in this case. Parliament’s stated intention was to simplify the law relating to the proof of blood alcohol concentration. With respect to impaired driving prosecutions, I find that Parliament did not intend to heighten the Crown’s burden of proof.

The certificate of the qualified technician is admissible as evidence of the facts stated therein. On its own, this evidence, which states in particular that the alcohol standard was certified by an analyst, meets the conditions set out in s. 320.31(1), and the Crown may therefore rely on the presumption of accuracy set out therein.