Case information

Criminal law — Evidence — Breathalyzer results — Target value of alcohol standard — Whether Court of Appeal erred in law in its interpretation and application of s. 320.31(1) of Criminal Code — Whether Crown must establish target value of alcohol standard used in system calibration check of instrument to be able to invoke presumption of accuracy set out in s. 320.31(1)(a) — Whether testimony of qualified technician or certificate provided by them constitutes hearsay evidence that is admissible and sufficient to ensure compliance with condition set out in s. 320.31(1)(a) that results of system calibration check of instrument were within 10% of target value of alcohol standard certified by analyst.

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On the basis of breathalyzer results, the respondent was charged with having a blood alcohol concentration equal to or exceeding 80 mg of alcohol in 100 mL of blood within the two hours after he ceased to operate a motor vehicle. At trial, a certificate of a qualified technician was filed as evidence of the breathalyzer results; the certificate included a statement that before the taking of each sample, the technician conducted a system calibration check the result of which was within 10% of the alcohol standard certified by the analyst. There was no mention in the certificate of the target value of the alcohol standard.

The trial judge found that the certificate of the qualified technician was sufficient to allow the Crown to benefit from the presumption of accuracy set out in s. 320.31 Cr. C. The respondent was convicted. The Superior Court allowed his summary conviction appeal, finding that the target value of the alcohol standard must first be established by an analyst or by the filing of their certificate containing the information regarding the target value. In the absence of such certification by the analyst, the evidence from the technician constituted hearsay that was inadmissible in evidence. The Superior Court ordered that the respondent be acquitted.

The Court of Appeal dismissed the Crown’s appeal, finding that even if the certificate or the testimony of the analyst is necessary to report the target value of the alcohol standard, the certificate of the qualified technician in this case, which stated nothing about the target value, was insufficient to allow the Crown to benefit from the presumption of accuracy.