CRIMINAL CODE OFFENCES - Impaired operation or operation over the legal limit – Certificate of analysis

Appeal by the Crown from an appeal decision acquitting the appellant of driving over the legal limit and quashing his conviction for impaired driving and ordering a new trial on that count. The respondent was stopped for speeding. The officer noticed signs of alcohol consumption and transported the respondent to the station for a breathalyzer test. The officer never made a formal demand for a road or breathalyzer test. The trial judge declined to exclude the certificate of analysis on the basis that the Crown failed to establish a proper demand. The trial judge held defence counsel’s objection came too late as it was made after the certificate was received in evidence and the Crown had closed its case. He added that the results of the breath tests confirmed the presence of alcohol in the respondent’s body when he was driving and for some time thereafter. The trial judge entered a conviction for impaired operation and a conditional stay on driving over the legal limit charge. The appeal judge concluded that, absent evidence of a proper demand, the presumptions of accuracy and identity were not available to the Crown to prove the respondent’s blood alcohol concentration at the time of the sample or at the time of driving. He held that, in the absence of the presumptions, there was no admissible evidence of the respondent’s blood alcohol concentration, and that the trial judge erred in holding that an objection was necessary since the issue was not one of admissibility of the certificate, but whether the contents of the certificate could be used as evidence of their truth absent the availability of the presumptions.

HELD: Appeal dismissed. A new trial was ordered on both counts. The appeal judge did not err in concluding that the presumptive inferences in former ss. 258(1)(c) and 258(1)(g) of the Criminal Code were not available to the Crown in the absence of evidence of a demand for a breath sample under former s. 254(3). Proof of a demand under s. 254(3) was a condition precedent to access the evidentiary shortcuts of ss. 258(1)(c) and 258(1)(g). Where there was no such proof, the presumptive inferences were not engaged, and the trial judge erred in law in relying on them and finding the offence of operating a motor vehicle with a prohibited blood alcohol concentration proven beyond a reasonable doubt. To require the Crown to establish that a demand for a breath sample was made was not inconsistent with the purpose of the evidentiary shortcuts. The appeal judge did not err in law in holding that the trial judge erred in admitting the certificate under former s. 258(1)(g) for failure of timely objection to its admissibility. It was not until the end of the Crown’s case that it became clear that an argument was available to the respondent that the Crown failed to establish, by direct or circumstantial evidence, that the officer demanded of the respondent under former s. 254(3) that he provide breath samples for blood alcohol concentration analysis.

R. v. Hamel, [2020] O.J. No. 5383, Ontario Court of Appeal, D. Watt, G.T. Trotter and A.L. Harvison Young JJ.A., December 11, 2020. Digest No. TLD-February12021010