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Quebec man to stand trial again after breathalyzer test challenge fails at SCC

|Written By Elizabeth Raymer
Quebec man to stand trial again after breathalyzer test challenge fails at SCC
James Foy of Addario Law Group LLP says that 'prior to today’s case, it was not clear that the defendant (or other witnesses) could testify about the impact of the malfunction or error on the results given evidentiary prohibitions in the Criminal Code.'

A Quebec man charged with two counts of impaired driving did not bring sufficient evidence to rebut the presumption that a breathalyzer test was conducted properly and must stand trial again, the Supreme Court of Canada ruled today.

In an 8-1 decision in R. v. Cyr-Langlois that overturned a decision of the Quebec Court of Appeal, the Supreme Court found that the accused’s evidence “was in the realm of speculation” and could not satisfy the reasonable doubt test.

Since the SCC’s decision in R. v. St‑Onge Lamoureux, “it has been settled that to rebut the presumptions in s. 258(1)(c) [of the Criminal Code], an accused must adduce evidence tending to show that the malfunctioning or improper operation of the approved instrument casts doubt on the reliability of the results,” Chief Justice Richard Wagner wrote for the majority.

“This requirement has two purposes. First, it aims to ensure continued scientific recognition of breathalyzer test results, and second, it promotes the proper functioning and proper operation of instruments in order to prevent the reliability of the results from being compromised.“

In order for the accused’s burden to be discharged, Wagner wrote, the following conditions must be met: (i) the accused adduces evidence relating directly to the malfunctioning or improper operation of the instrument, and (ii) the accused establishes that this defect tends to cast doubt on the reliability of the results. For the improper operation of the instrument to be established, it must be found that a specific procedure is generally required (the theoretical element), and it must then be shown that the procedure was not in fact followed (the practical element).

In this case, “there was clearly no evidence that this improper operation tended to cast doubt on the reliability of the results,” Wagner wrote.

The respondent, Marc Cyr-Langlois, was arrested in July 2012 and later charged with two counts of impaired driving. At the police station, the qualified technician failed to observe the accused himself for a period of 15 or 20 minutes before administering each breathalyzer test. Cyr-Langlois argued that this was a breach of the duty to operate the breathalyzer properly and that it was sufficient to rebut the presumptions of accuracy and identity applicable to breathalyzer test results under s. 258(1)(c) of the Criminal Code, which had to lead to his acquittal in the absence of additional evidence from the Crown. At trial, only the technician testified.

The trial judge found that because the observation procedure, whose purpose is to ensure the reliability of the results, had not been followed in this case, a reasonable doubt about the reliability of the results could be raised. The 20-minute observation time is required to determine whether a suspected impaired driver vomited or belched, for example, prior to being tested, as either action might allow alcohol in the digestive system to make its way to the mouth and render the test less reliable.

Before the Court of Quebec, the respondent had argued that the improper operation of the instrument cast doubt on the reliability of the results, “because, in such a case, the police might not notice certain digestive issues that can have a distorting effect,” the Supreme Court noted in its decision.

The trial judge accordingly acquitted the accused, but on appeal the Superior Court set aside the judgment of acquittal and ordered a new trial. A majority of the Court of Appeal set aside the Superior Court’s judgment and restored the verdict of acquittal.

Wagner noted that in light of the material on record and in particular “the consistency of the results,” there was “absolutely no evidence tending to show that the alleged defect cast doubt on the reliability of the results.”

In dissenting reasons, Justice Suzanne Côté emphasized the importance of following the relevant procedures “faithfully” in order to obtain accurate results.

As well, “To require . . . evidence tending to show that the improper operation of the breathalyzer in fact led to inaccurate results — for example, in this case, by imposing an obligation on the accused to testify about his physiological reactions (such as burping) — would upset the delicate balance between the constitutional rights of accused persons and Parliament’s objectives.”

James Foy of Addario Law Group LLP in Toronto, who was a counsel for the intervener Criminal Lawyers' Association before the Supreme Court, says the decision was helpful in addressing how operator error or machine malfunction could affect the reliability of breathalyzer results.

“Prior to today’s case, it was not clear that the defendant (or other witnesses) could testify about the impact of the malfunction or error on the results given evidentiary prohibitions in the Criminal Code,” Foy told Legal Feeds by email. “The CLA raised this concern with the Court and the Chief Justice responded: evidence related to . . . accused’s consumption of alcohol is relevant and admissible evidence when there is machine error or machine malfunction.”

In addition, said Foy, “Justice Côté’s dissent raises important concerns about ensuring that the pursuit of efficiency in drinking-and-driving cases does not overwhelm a person’s right to be presumed innocent and [the] right to a fair trial. Courts will have to bear in mind the ‘delicate balance’ aptly described by Justice Côté as they apply the majority’s reasons in the future.”