Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Canadian Charter of Rights and Freedoms – Fundamental justice – Presumption of innocence – Right to make full answer and defence – Right against self-incrimination – Criminal law – Offences – Operation while impaired – Evidence – Taking of bodily samples – Presumptions – Taking of breath samples – Breathalyser tests – Functioning of instruments – Presumption of accuracy and of identity – Whether words “is conclusive proof . . . in the absence of evidence tending to show” in para. 258(1)(c) of Criminal Code change nature of burden of proof imposed on accused – Nature of presumptions provided for in ss. 258(1)(c) and (d.1) of Criminal Code – Whether these presumptions infringe ss. 7, 11(c) and 11(d) of Canadian Charter of Rights and Freedoms – In event that these presumptions infringe any of these provisions, whether infringement is justified under s. 1 of Charter – Nature of burden of proof imposed on accused by ss. 258(1)(c), (d.01) and (d.1) of Criminal Code – Whether this burden of proof infringes ss. 7, 11(c) and 11(d) of Charter – In event that this burden of proof infringes any of these provisions, whether infringement is justified under s. 1 of Charter.

The respondent was charged with operating a vehicle with a blood alcohol level over the legal limit. She argued that ss. 258(1)(c), 258(1)(d.01) and 258(1)(d.1) Cr. C. were unconstitutional because they infringed the right to be presumed innocent, the right against self incrimination and the right to make full answer and defence. In a judgment applying to a series of cases, including the case at bar, the Court of Québec, in R. v. Drolet, 2010 QCCQ 7719, determined that the application of s. 258(1)(c) to the accused was constitutional provided that the words “all of the following three things” were severed together with the phrase “and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed”. It also determined that the application of s. 258(1)(d.01), as enacted, was constitutional, as was that of s. 258(1)(d.1) provided that subparagraph (ii) was severed. The respondent was found guilty as charged. She chose not to appeal her conviction; the Crown and the Attorney General have applied for leave to appeal with regard to the constitutional questions only.