R. v. St-Onge Lamoureux (A.), (2012) 436 N.R. 199 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 13, 2011
• Jurisdiction: Canada (Federal)
• Citations: (2012), 436 N.R. 199 (SCC);2012 SCC 57

R. v. St-Onge Lamoureux (A.) (2012), 436 N.R. 199 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2012] N.R. TBEd. NO.001

Her Majesty the Queen and Attorney General of Quebec (appellants) v. Anic St-Onge Lamoureux (respondent) and Attorney General of Canada, Attorney General of Ontario, Attorney General of Manitoba, Attorney General of British Columbia, Attorney General of Alberta, Barreau du Québec, Association québécoise des avocats et avocates de la défense, Criminal Lawyers' Association of Ontario and Criminal Trial Lawyers' Association (intervenors)

(33970; 2012 SCC 57; 2012 CSC 57)

Indexed As: R. v. St-Onge Lamoureux (A.)

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein and Cromwell, JJ.

November 2, 2012.

Summary:

The accused was charged under s. 253(1)(b) of the Criminal Code with operating a vehicle with a blood alcohol level over the legal limit. A qualified technician took three breath samples from her using an Intoxilyzer 5000C instrument. The analyses showed blood alcohol levels of 164 mg, 124 mg and 130 mg in 100 ml of blood. The accused challenged the application of the presumption of accuracy on the basis of the differences in the test results. The accused also argued that the new provisions on breathalyzer test results (Criminal Code, ss. 258(1)(c), 258(1)(d.01) and 258(1)(d.1)) were unconstitutional.

The Court of Quebec (Judge Chapdelaine), in a decision cited 2010 QCCQ 8552, found that the qualified technician's testimony was sufficient to explain the differences in the results of the three analyses, and that the technician's certificate was proof of its content. Regarding the constitutional challenge, Judge Chapdelaine expressed the opinion that the statutory amendments did not bar the accused from presenting a "Carter defence" to rebut the presumption of accuracy. However, Judge Chapdelaine concluded that the accused's testimony about her alcohol consumption was not sufficiently serious or probative to raise a reasonable doubt. Finding that the qualified technician's explanations were sufficient and that the presumptions established in s. 258(1)(c) and s. 258(1)(d.1) of the Code applied, he convicted the accused of operating a vehicle with a blood alcohol level over the legal limit. The Crown appealed.

The Supreme Court of Canada allowed the appeal in part. Judge Chapdelaine erred in holding that the accused could rebut the presumption of accuracy in s. 258(1)(c) of the Code by presenting a Carter defence, but that error did not affect his conclusion since he did not believe the accused. The conviction was therefore upheld. With respect to the constitutional questions raised, the court held that ss. 258(1)(c), 258(1)(d.01) and 258(1)(d.1) of the Code did not infringe the right to make full answer and defence in s. 7 of the Charter or the protection against self-incrimination in s. 11(c) of the Charter. However, the court held that ss. 258(1)(c), 258(1)(d.01) and 258(1)(d.1) of the Code infringed the right to be presumed innocent in s. 11(d) of the Charter. With respect to whether the infringement was a reasonable limit under s. 1 of the Charter, the court stated that "Sections 258(1)(d.01) and 258(1)(d.1), and s. 258(1)(c) after severance of the words 'all of the following three things' and, "that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused's blood exceeded 80 mg of alcohol in 100 mL of blood, 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', are justified under s. 1 of the Charter". Cromwell and Rothstein, JJ., dissenting in part, agreed that the conviction should be upheld, but answered all of the constitutional questions in the negative.

Editor's Note: The decision of the Supreme Court of Canada in R. v. Dineley (S.) determined that the Criminal Code amendments at issue in this case did not operate retrospectively. That decision is reported at 436 N.R. 59.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - Section 258(1)(c) of the Criminal Code provided that the test results were conclusive proof of the blood alcohol level of the accused both at the time when the analyses were made and at the time when the offence was alleged to have been committed "in the absence of evidence tending to show all of the following three things - that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused's blood exceeded 80 mg of alcohol in 100 mL of blood, 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" - Section 258(1)(d.01) excluded evidence of the alcohol consumption of the accused ("Carter evidence") insofar as it was adduced to show that the instrument was malfunctioning or was operated improperly - The Supreme Court of Canada held that the combined effect of s. 258(1)(c) and s. 258(1)(d.01) of the Code did not limit the right to make full answer and defence protected by s. 7 of the Charter - The rebuttal of the presumptions established in s. 258(1)(c), as clarified by s. 258(1)(d.01), had not been rendered illusory - See paragraphs 68 to 81.

Civil Rights - Topic 4304

Protection against self-incrimination - General - Compellability - General - Section 258(1)(d.1) of the Criminal Code provided that if the results of the analyses showed a blood alcohol level over .08, evidence of the results of the analyses was proof that the concentration of alcohol in the accused's blood at the time of the alleged offence exceeded .08, in the absence of evidence tending to show both that: (1) the accused's consumption of alcohol was consistent with a blood alcohol level that did not exceed .08 at the time when the offence was alleged to have been committed; and (2) the accused's alcohol consumption was consistent with the test results - The Supreme Court of Canada held that s. 258(1)(d.1) of the Code did not infringe the protection against self-incrimination under s. 11(c) of the Charter - The court stated that "even without the presumption of identity, the accused might be required to raise a doubt about his or her unusual alcohol consumption if nothing in the evidence indicates that the expert's assumptions are erroneous. It therefore seems artificial to say that requiring the accused under s. 258(1)(d.1) to testify about his or her alcohol consumption imposes an evidentiary burden on the accused. The choice by the accused to testify in this regard flows from a decision that must be made whenever the Crown's evidence is sufficient to support a conviction. Thus, s. 11(c) of the Charter is not infringed" - See paragraphs 93 to 96.

Civil Rights - Topic 4951

Presumption of innocence - Evidence and proof - Statutory presumptions - The Supreme Court of Canada stated that "A statutory presumption violates the right to be presumed innocent if its effect is that an accused person can be convicted even though the trier of fact has a reasonable doubt" - See paragraph 24.

Civil Rights - Topic 4951

Presumption of innocence - Evidence and proof - Statutory presumptions - The Supreme Court of Canada stated that "Whether a statutory presumption can be justified under s. 1 [of the Charter] depends on several factors, including the importance of the legislative objective, how difficult it would be for the prosecution to prove the substituted fact beyond a reasonable doubt, whether it is possible, and how easy it is, for the accused to rebut the presumption, and, as can be seen from the instant case, scientific advances" - See paragraph 31.

Civil Rights - Topic 4951

Presumption of innocence - Evidence and proof - Statutory presumptions - Section 258(1)(c) of the Criminal Code provided that the test results were conclusive proof of the blood alcohol level of the accused both at the time when the analyses were made and at the time when the offence was alleged to have been committed "in the absence of evidence tending to show all of the following three things - that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused's blood exceeded 80 mg of alcohol in 100 mL of blood, 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" - Section 258(1)(d.01) excluded evidence of the alcohol consumption of the accused ("Carter evidence") insofar as it was adduced to show that the instrument was malfunctioning or was operated improperly - The Supreme Court of Canada found that s. 258(1)(c) and s. 258(1)(d.01) of the Code infringed the presumption of innocence guaranteed by s. 11(d) of the Charter - The court stated that "the infringement lies in the fact that, as Parliament recognized, the instruments can malfunction or be operated improperly, and therefore that the trier of fact could have a reasonable doubt about the guilt of the accused where the only evidence before him or her consists of the test results" - The court concluded that the second and third requirements under s. 258(1)(c) were not justified under s. 1 of the Charter - If the second and third requirements provided for in s. 258(1)(c) were severed, the court found that the limit on defences that was established in s. 258(1)(c) and s. 258(1)(d.01) was a justified infringement of the right to be presumed innocent - See paragraphs 21 to 67.

Civil Rights - Topic 4951

Presumption of innocence - Evidence and proof - Statutory presumptions - Section 258(1)(d.1) of the Criminal Code provided that if the results of the analyses showed a blood alcohol level over .08, evidence of the results of the analyses was proof that the concentration of alcohol in the accused's blood at the time of the alleged offence exceeded .08, "in the absence of evidence tending to show" both that: (1) the accused's consumption of alcohol was consistent with a blood alcohol level that did not exceed .08 at the time when the offence was alleged to have been committed; and (2) the accused's alcohol consumption was consistent with the test results - The Supreme Court of Canada held that s. 258(1)(d.1) infringed the right to be presumed innocent under s. 11(d) of the Charter, but that it was a justified infringement under s. 1 of the Charter - See paragraphs 82 to 92.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See second, third and fourth Civil Rights - Topic 4951 ].

Civil Rights - Topic 8380.14

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Severance of portion of statute or section - [See third Civil Rights - Topic 4951 ].

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See Civil Rights - Topic 3133 ].

Criminal Law - Topic 1374

Offences against person and reputation - Motor vehicles - Impaired driving - Breathalyzer or blood sample - Evidence and certificate evidence (incl. evidence tending to show) - [See Civil Rights - Topic 3133 , Civil Rights - Topic 4304 and third and fourth Civil Rights - Topic 4951 ].

Cases Noticed:

R. v. Boucher (E.), [2005] 3 S.C.R. 499; 342 N.R. 42; 2005 SCC 72, refd to. [paras. 6, 139].

R. v. Carter (1985), 7 O.A.C. 344; 19 C.C.C.(3d) 174 (C.A.), refd to. [paras. 7, 110].

R. v. Gilbert (T.) (1994), 74 O.A.C. 56; 92 C.C.C.(3d) 266 (C.A.), refd to. [para. 7].

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161; 2005 SCC 37, refd to. [para. 9].

R. v. Milne (R.S.) (1996), 90 O.A.C. 348; 107 C.C.C.(3d) 118 (C.A.), refd to. [para. 9].

R. v. Coutts (D.) (1999), 121 O.A.C. 342; 45 O.R.(3d) 288 (C.A.), refd to. [para. 9].

R. v. Huff, [2000] O.J. No. 3487 (C.A.), refd to. [para. 9].

R. v. Powichowski (2009), 70 C.R.(6th) 376; 2009 ONCJ 490, refd to. [para. 10].

R. v. Crosthwait, [1980] 1 S.C.R. 1089; 31 N.R. 603; 25 Nfld. & P.E.I.R. 509; 68 A.P.R. 509, consd. [paras. 16, 139].

R. v. Gibson (R.A.), [2008] 1 S.C.R. 397; 373 N.R. 1; 429 A.R. 327; 421 W.A.C. 327; 264 N.S.R.(2d) 331; 847 A.P.R. 331; 2008 SCC 16, refd to. [paras. 16, 128].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [paras. 22, 147].

R. v. Downey and Reynolds, [1992] 2 S.C.R. 10; 136 N.R. 266; 125 A.R. 342; 14 W.A.C. 342, refd to. [para. 22].

R. v. Vaillancourt, [1987] 2 S.C.R. 636; 81 N.R. 115; 10 Q.A.C. 161; 68 Nfld. & P.E.I.R. 281; 209 A.P.R. 281, refd to. [paras. 24, 149].

R. v. Whyte, [1988] 2 S.C.R. 3; 86 N.R. 328, refd to. [paras. 24, 151].

R. v. Dubois, [1985] 2 S.C.R. 350; 62 N.R. 50; 66 A.R. 202, refd to. [paras. 24, 141].

R. v. Hummel (1987), 36 C.C.C.(3d) 8 (Ont. H.C.J.), refd to. [para. 30].

R. v. Phillips (1988), 27 O.A.C. 380; 42 C.C.C.(3d) 150 (C.A.), refd to. [para. 30].

R. v. Drolet, 2010 QCCQ 7719, refd to. [para. 35].

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks et al.

R. v. Videoflicks et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239, refd to. [para. 39].

R. v. Chaulk and Morrissette, [1990] 3 S.C.R. 1303; 119 N.R. 161; 69 Man.R.(2d) 161, refd to. [para. 39].

Hutterian Brethren of Wilson Colony et al. v. Alberta, [2009] 2 S.C.R. 567; 390 N.R. 202; 460 A.R. 1; 462 W.A.C. 1; 2009 SCC 37, refd to. [para. 39].

R. v. Duff (R.A.) (2010), 501 A.R. 122; 2010 ABPC 319, refd to. [para. 40].

R. v. Gillespie, 2010 BCPC 207, refd to. [para. 40].

R. v. Muzuva (2010), 206 C.R.R.(2d) 18 (Ont. C.J.), refd to. [para. 40].

R. v. Cayer, 2010 QCCQ 9352, refd to. [para. 40].

R. v. Laforge, 2010 QCCQ 7718, refd to. [para. 44].

R. v. St. Pierre (G.R.), [1995] 1 S.C.R. 791; 178 N.R. 241; 79 O.A.C. 321, consd. [paras. 53, 139].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 62].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81, refd to. [paras. 71, 128].

R. v. Morgentaler, Smoling and Scott, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 77].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 78].

R. v. Kasim (R.Y.) (2011), 515 A.R. 254; 532 W.A.C. 254; 2011 ABCA 336, refd to. [para. 78].

R. v. Darrach (A.S.), [2000] 2 S.C.R. 443; 259 N.R. 336; 137 O.A.C. 91; 2000 SCC 46, refd to. [para. 93].

R. v. Paszczenko (M.) et al. (2010), 272 O.A.C. 27; 103 O.R.(3d) 424; 2010 ONCA 615, refd to. [paras. 95, 174].

R. v. Grosse (P.) (1996), 91 O.A.C. 40; 29 O.R.(3d) 785 (C.A.), refd to. [paras. 95, 174].

R. v. Hall (S.) (2007), 219 O.A.C. 251; 83 O.R.(3d) 641; 2007 ONCA 8, refd to. [paras. 95, 174].

R. v. Bulman (W.) (2007), 221 O.A.C. 210; 2007 ONCA 169, refd to. [paras. 95, 174].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 140].

R. v. Appleby, [1972] S.C.R. 303, refd to. [para. 141].

R. v. Schwartz, [1988] 2 S.C.R. 443; 88 N.R. 90; 56 Man.R.(2d) 92, refd to. [para. 151].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 30]; sect. 7, sect. 11(c), sect. 11(d) [para. 1].

Criminal Code, R.S.C. 1985, c. C-46, sect. 258(1)(c), sect. 258(1)(d.01), sect. 258(1)(d.1) [Appendix].

Authors and Works Noticed:

Canada, Hansard, House of Commons Debates, vol. 141, 1st Sess. 39th Parliament (January 30, 2007), pp. 6185 [para. 12]; 6186 [para. 83].

Canada, Senate, Standing Committee of Legal and Constitutional Affairs, Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, No. 9, 2nd Sess., 39th Parliament ( February 21, 2008), at p. 37 [para. 73].

Canadian Society of Forensic Science, Recommended Standards and Procedures of the Canadian Society of Forensic Science Alcohol Test Committee (2009), 42 Can. Soc. Forensic Sci, J. 1, p. 14 [para. 25].

Cross, Sir Rupert, and Tapper, Colin, Cross on Evidence (7th Ed. 1990), at p. 60 [para. 71].

Hansard - see Canada, Hansard, House of Commons Debates.

Hodgson, Brian T., The Validity of Evidential Breath Alcohol Testing (2008), 41 Can. Soc. Forensic Sci. J. 83, pp. 83 [paras. 26, 34]; 94 [para. 11].

Martin, T.L., Wigmore, J.G., Woodall, K.L., A Comparison of Blood Alcohol Concentrations Estimated From Drinking Histories of Drivers Charged with 'Over 80' and Their Intoxilyzer® 5000C Results (2004), 37 Can. Soc. Forensic Sci. J. 187, generally [para. 72].

Robertson, Robyn, Vanlaar, Ward, and Simpson, Herb, National Survey of Crown Prosecutors and Defence Counsel on Impaired Driving: Final Report (June 2009), p. 72 [para. 73].

Sommers, Marilyn Sawyer et al., "Nurse, I Only Had a Couple of Beers": Validity of Self-Reported Drinking Before Serious Vehicular Injury (2002), 11 Am. J. Critical Care 106, generally [para. 72].

Wigmore, J.G., Man vs. Machine: Self-Reported Alcohol Consumption of Drinking Drivers vs. Evidential Breath Alcohol Tests. Is the Restriction of Evidence to the Contrary Scientifically Valid? (2009), 54 Crim. L.Q. 395, generally [para. 72].

Counsel:

Michel Déom, Jean-Vincent Lacroix, Marie-Ève Mayer and Patricia Blair, for the appellants;

Patrick Fréchette, for the respondent;

François Joyal and Ginette Gobeil, for the intervener, the Attorney General of Canada;

James V. Palangio and Philip Perlmutter, for the intervener, the Attorney General of Ontario;

Christian Vanderhooft and Nathaniel Carnegie, for the intervener, the Attorney General of Manitoba;

Rodney Garson and Roger F. Cutler, for the intervener, the Attorney General of British Columbia;

Jason R. Russell and Robert Palser, for the intervener, the Attorney General of Alberta;

Marco LaBrie and Jean-Philippe Marcoux, for the intervener, Barreau du Québec;

Éric Downs and Julie Bolduc, for the intervener, Association québécoise des avocats et avocates de la défense;

Patrick Ducharme and Paul Burstein, for the intervener, the Criminal Lawyers' Association of Ontario;

Shannon K. C. Prithipaul, for the intervener, the Criminal Trial Lawyers' Association.

Solicitors of Record:

Attorney General of Québec, Montreal, Quebec, for the appellants;

Fréchette, Blanchette, Sherbrooke, Quebec, for the respondent;

Attorney General of Canada, Montreal, Quebec, for the intervener, the Attorney General of Canada;

Attorney General of Ontario, Toronto, Ontario, for the intervener, the Attorney General of Ontario;

Attorney General of Manitoba, Winnipeg, Manitoba, for the intervener, the Attorney General of Manitoba;

Attorney General of British Columbia, Victoria, British Columbia, for the intervener, the Attorney General of British Columbia;

Attorney General of Alberta, Edmonton, Alberta, for the intervener, the Attorney General of Alberta;

LaBrie, Gariépy & Associés, Longueuil, Quebec, for the intervener, Barreau du Québec;

Downs Lepage, Montreal, Quebec, for the intervener, Association québécoise des avocats et avocates de la défense;

Ducharme Fox, Windsor; Burstein Bryant, Toronto, Ontario, for the intervener, the Criminal Lawyers' Association of Ontario;

Gunn Law Group, Edmonton, Alberta, for the intervener, the Criminal Trial Lawyers' Association.

This appeal was heard on October 13, 2011, before McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court was delivered in both official languages on November 2, 2012, including the following opinions:

Deschamps, J. (McLachlin, C.J.C., Lebel, Fish and Abella, JJ., concurring) - see paragraphs 1 to 101;

Cromwell, J., dissenting in part (Rothstein, J., concurring) - see paragraphs 102 to 180.