Ontario Superior Court clarifies rule on presumption of accuracy in impaired driving case

The Ontario Superior Court has clarified the rule on the presumption of accuracy (POA) in a recent impaired driving case.

In R. v. Gault, 2023 ONSC 2994, David Gault was involved in a hit-and-run on Royal York Road in Toronto. Police received a telephone call reporting that the driver was possibly impaired. A police officer testified that when he approached Gault, the defendant was not steady on his feet and had “glossy eyes.” The officer arrested Gault for impaired driving and demanded a sample of his breath for analysis. The officer took Gault to the police station, where he provided two samples of breath that were analyzed.

Analysis of the first sample reported 190 mg of alcohol in 100ml of blood, and the second sample provided a blood alcohol (BAC) reading of 170mg of alcohol in 100ml of blood. Gault was charged with having a BAC of “80 or over” within two hours of ceasing to operate a conveyance under the Criminal Code.

Gault’s acquittal

During the trial, Gault testified that he had been drinking vodka at a friend’s house when he started to feel intoxicated. He wanted to get to a pub quickly to eat some food. Gault was driving when the hit-and-run incident occurred.

At the trial, the Crown filed a certificate of qualified technician (CQT) to establish Gault’s blood alcohol concentration, which was “80 or over.” However, the arresting officer and a qualified technician did not testify, and there was no certificate of analyst (COA) to prove the certification and target value of the alcohol standard used for system calibration checks. The Crown relied on the CQT and the presumption of accuracy.

The defence argued that the Crown failed to establish the statutory prerequisites to the operation of the POA beyond a reasonable doubt. The defence pointed out the printout from the approved instrument (AI), which showed that there had been a system calibration check, followed by a “deficient sample,” and then no further calibration check before Gault’s first breath sample that was analyzed. The defence asserted that a deficient sample is considered a “sample” under the Criminal Code, which necessitated a new system calibration check before any sample of Gault’s breath could be analyzed by the AI. The defence argued that since there was no new calibration check after the deficient sample, the statutory prerequisites to the POA were not met.

The trial judge acquitted Gault, finding that the POA could not be applied. The judge held that the Crown failed to prove that Gault’s blood alcohol content was “80 or over.”

The Crown’s appeal

The Crown appealed the acquittal, arguing that the trial judge wrongly interpreted the statutory prerequisites to the POA. The Crown asserted that a deficient sample is not a “sample” within the meaning of s. 320.31(1)(a) of the Criminal Code, and calibration checks were not required to be performed immediately before each sample.

The Ontario Superior Court agreed with the Crown’s argument. The court found that the trial judge made an error in his interpretation of the statutory prerequisites to the operation of the POA under the Criminal Code. POA is an evidentiary shortcut for the Crown to prove BAC. This presumption deems that the BAC determined by testing that meets all the statutory requirements of the law is conclusive proof of the person’s blood alcohol level at the time of testing. The Crown can establish the POA requirements through a CQT. The Crown could file a CQT attesting that all the statutory preconditions to the POA have been met, which will conclusively prove the BAC without calling an analyst to testify.

The court held that a breath sample that is deficient because the defendant did not blow with enough force could not be interpreted to be a “sample” within the meaning of the law. The court found that the respondent made several inadequate attempts to provide a breath sample by not blowing with enough force. The AI printout showed that the deficient sample was not a sample that was analyzed. The printout shows a complete absence of any analysis for the deficient sample. Accordingly, the court held that the deficient sample registered by the AI was not an intervening event that could have adversely affected the reliability of the breath test results. The statutory requirement of a new calibration check before the first sample that was analyzed was not triggered. The court accordingly found that the Crown had satisfied all prerequisites to the operation of the POA, and a conviction should have followed.

The Crown also pointed out that if the statute compelled a new air blank test and a new calibration check after every single inadequate attempt to provide a sample, this would lead to the absurd result of also requiring a 15-minute interval after every such failed blow. The Crown asserted that this would be contrary to Parliament’s intent to simplify and streamline drinking and driving investigations and prosecutions.

The court agreed that there is no legislative requirement that the mandated system calibration check occurs immediately before each sample. The court emphasized that a new system calibration check between the “deficient sample” and the first sample of the defendant’s analyzed breath is unnecessary.

The court accordingly concluded that the Crown was entitled to rely on the POA to prove that Gault’s blood alcohol level was 80 or over.