Marcotte, Healy, Gagné

Appeal from a judgment of the Superior Court allowing the appeal from a conviction. Dismissed. 

The Court of Québec convicted the respondent of operating a vehicle with a blood alcohol concentration that exceeded the legal limit. The Superior Court acquitted him. The issue here is whether the prosecution can rely on the presumption of accuracy set out in section 320.31(1)(a) of the Criminal Code (R.S.C. 1985, c. C-46) without proving the target value of the alcohol standard or whether the target value, if it is a necessary element, may be proved by the qualified technician’s certificate or must be proved by the certificate or testimony of an analyst. The Superior Court accepted the second hypothesis. Provincial courts of appeal are divided as to the conditions for the presumption of accuracy to apply.

There is obviously an ambiguity in the syntactical construction of section 320.31(1)(a) Cr. C. It could be interpreted to mean (i) that the analyst need only certify the alcohol standard for the presumption of accuracy to operate or (ii) that the analyst must also certify the target value of the alcohol standard. There is a further ambiguity that relates to the manner in which these elements may be established.

There is nothing in the provisions of the Criminal Code, amended in 2018, to suggest an intention to change the law in this regard and section 320.32 Cr. C. reinforces the admissibility of hearsay in the qualified technician’s report. If the qualified technician can report the content of the analyst’s certificate, the qualified technician’s certificate is incomplete if it does not include an assertion of the target value. Even if that assertion is a hearsay statement derived from the certificate of the analyst, it must be present in the qualified technician’s certificate.

Undoubtedly, proof of the target value of the alcohol standard certified by the analyst is an essential condition for the operation of the presumption of accuracy. The target value of the alcohol standard must be put in evidence in a calculated or readily calculable form because, first, the plain words of the provision must be given meaning. In addition, a requirement that the analyst state the target value is consistent with a standard of strict construction of penal statutes.

The Court therefore disagrees with the second conclusion of the Superior Court that the certificate or testimony of an analyst is necessary for the presumption of accuracy to apply. To rely on the presumption by means of a certificate, the target value of the alcohol standard that was certified by the analyst must be asserted in the analyst’s certificate or that of the qualified technician.

In short, the conclusions contained in the Superior Court judgment may be relaxed to permit a statement of the target value of the alcohol standard in either the certificate of a qualified technician or an analyst.

Legislation interpreted: s. 320.31(1)(a) Cr. C.  

Text of the decision: http://citoyens.soquij.qc.ca