February 05, 2019
Duval Hesler, Ruel, Cohen (ad hoc)
Appeal from a judgment of the Superior Court allowing an appeal of a judgment of the Court of Quebec and convicting the appellant of operating a motor vehicle with a blood alcohol level exceeding the legal limit. Dismissed.
The appellant was arrested and taken to the police station to undergo a breathalyzer test. A qualified technician collected a first breath sample, whose analysis showed a blood alcohol level of 173 mg of alcohol per 100 ml of blood. While the second sample was being taken, the breathalyzer registered a result, but the sergeant cancelled the sequence and eliminated the reading obtained without looking at the display screen because he judged that the breath was not sufficiently deep to provide deep lung (alveolar) air. A third sample showed a result of 160 mg of alcohol per 100 ml of blood. The trial judge acquitted the appellant on the ground that he entertained a reasonable doubt regarding the reliability of the tests due to the incorrect use of the breathalyzer. The Superior Court allowed the prosecution’s appeal on the basis that the judge erred in law by putting aside, without valid cause, the presumption of accuracy of the results referred to in the qualified technician’s certificate.
Qualified technicians have the authority to ensure the adequacy of the samples in order to obtain a suitable analysis within the meaning of s. 254(3)(a)(i) of the Criminal Code (R.S.C. 1985, c C-46) Cr. C.). Technicians have discretion to refuse a sample due to inadequate or insufficient exhaling, even if the instrument has triggered or produced an analysis, but they must provide the reasons for their decision. However, a sample or an analysis rejected based on the technician’s opinion does not constitute a sample within the meaning of s. 258(1)(c) Cr. C., which confers upon the breathalyzer results a presumption of accuracy and of identity.
The fact that a qualified technician acting in good faith erases the result of a breathalyzer test for a valid ground does not deprive an accused of evidence relevant to the conduct of his defence. Here, the qualified technician properly exercised his discretion. He believed that the second sample was inadequate and would not provide a suitable analysis of the accused’s blood alcohol level, because the accused stopped exhaling before he was asked to do so, and it is difficult to question his good faith in this regard. The reading of the second test would have been of no use to the appellant as its lack of reliability resulted from an inadequate breath, and not from any deficiency of the breathalyzer or its improper operation such that the reliability of the other two results, which have not been challenged, would be affected.
*Summary by SOQUIJ
French version of the judgment: Http://citoyens.soquij.qc.ca
English version of the judgment: Http://citoyens.soquij.qc.ca
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