R. v. St. Pierre (G.R.), (1995) 79 O.A.C. 321 (SCC)

• Judge: Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 02, 1994
• Jurisdiction: Canada (Federal)
• Citations: (1995), 79 O.A.C. 321 (SCC)

R. v. St. Pierre (G.R.) (1995), 79 O.A.C. 321 (SCC)

MLB headnote and full text

[French language version follows English language version]

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

....................

Gail Roberta St. Pierre (appellant) v. Her Majesty The Queen (respondent)

(File No. 23518)

Indexed As: R. v. St. Pierre (G.R.)

Supreme Court of Canada

Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.

March 2, 1995.

Summary:

The accused was stopped by police because of erratic driving. She failed an A.L.E.R.T. roadside screening test and was taken to the police station for a breathalyzer test. Before taking the breathalyzer test the accused drank two miniature 50 ml. bottles of vodka. The breathalyzer results showed an excessive blood-alcohol content. The accused was charged with a care and control offence. At trial, the Crown relied on the breathalyzer test results to prove that the concentration of alcohol in the accused's blood at the time of the alleged offence exceeded 80 mg. of alcohol in 100 ml. of blood. The Crown did not call an expert to interpret those results. Rather, the Crown relied on the presumption in s. 258(1)(c) of the Criminal Code that the accused's blood­alcohol level at the time of the breathalyzer test was the same as the level at the time of the offence. The accused alleged that the con­sumption of the vodka was "evidence to the contrary" which ren­dered the presump­tion inapplicable.

The Ontario Provincial Court held that the presumption did not apply and acquitted the accused. The Crown appealed.

The Ontario Court (General Division), in a decision reported (1991), 30 M.V.R. 13, dismissed the appeal. The Crown appealed again.

The Ontario Court of Appeal, Arbour, J.A., dissenting, in a decision reported 58 O.A.C. 47, allowed the appeal and convicted the accused. The accused appealed.

The Supreme Court of Canada, L'Heureux-Dubé, La Forest, Gonthier and McLachlin, JJ., dissenting, allowed the appeal, set aside the conviction and restored the acquittal. The court held that the evi­dence that the accused drank the two bottles of vodka was "evidence to the contrary" within the meaning of s. 258(1)(c). There­fore, the Crown could not rely on the pre­sumption that the accused's blood-alcohol level at the time of the testing was the same as her blood-alcohol level at the time of the offence. Since there was no other evidence establishing the accused's blood-alcohol level at the time of the offence, the accused was acquitted.

Criminal Law - Topic 1362

Motor vehicles - Impaired driving - Evi­dence and proof - [See first and second Criminal Law - Topic 1374 ].

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Certificate evidence - Presumptions - Evidence to the contrary - The accused was detained for a breathalyzer test - Before the test, she drank two 50 ml. bottles of vodka - The accused was charged with a care and control offence - At trial, the Crown did not call expert evidence to interpret the breathalyzer results, but relied on the presumption in s. 258(1)(c) of the Criminal Code that the ac­cused's blood-alcohol level at the time of the test was the same as at the time of the alleged offence - The accused argued that the consumption of the vodka was "evi­dence to the contrary" within the meaning of s. 258(1)(c) and therefore the presump­tion was inapplicable - The Supreme Court of Canada agreed and entered an acquittal.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Certificate evidence - Presumptions - Evidence to the contrary - The Supreme Court of Canada reviewed the operation of and distinguished between the presumptions in the Criminal Code which assist the Crown in proving "over 80" offences, i.e., the presumption of accuracy (s. 258(1)(g)) and the presump­tion of identity (s. 258(1)(c)) - Further, the court discussed what constituted "evidence to the contrary" sufficient to rebut each of these presumptions - See paragraphs 22 to 63.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Certificate evidence - Presumptions - Evidence to the contrary - The Criminal Code, s. 258(1)(c), provided that the blood-alcohol level at the time of driving will be presumed to be the same as at the time of the breathalyzer test unless the accused leads "evidence to the con­trary" - The Supreme Court of Canada stated that "evidence to the contrary" meant "evidence which shows that the accused's blood-alcohol level at the time of the offence (driving) and the time of the testing has changed" - The court rejected the argument that "evidence to the con­trary" meant evidence which shows that the accused's blood-alcohol level at the time of driving was below .08 - See para­graph 44.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Certificate evidence - Presumptions - Evidence to the contrary - The Criminal Code, s. 258(1)(c), provided that the blood-alcohol level at the time of driving will be presumed to be the same as at the time of the breathalyzer test unless the accused leads "evidence to the con­trary" - The Supreme Court of Canada stated that "evidence to the contrary" meant "evidence which shows that the accused's blood-alcohol level at the time of the offence (driving) and the time of the testing has changed" - See paragraph 44 - The court noted, however, that rebuttal of the presumption does not render the certi­ficate of analysis inadmissible and a con­viction may follow if, on all the evidence, the judge is satisfied beyond a reasonable doubt that the accused was over .08 when driving - See paragraph 53.

Criminal Law - Topic 1374

Motor vehicles - Impaired driving - Breathalyzer - Certificate evidence - Presumptions - Evidence to the contrary - The Criminal Code, s. 258(1)(c), created a presumption that, in the absence of "evi­dence to the contrary", an accused's blood­alcohol level when driving and at the time of the breathalyzer were the same - The Supreme Court of Canada stated that "evi­dence to the contrary" meant "evidence which shows that the accused's blood­alcohol level at the time of the offence (driving) and the time of the testing has changed" - The court held that because the fact that blood-alcohol level in an intoxi­cated per­son constantly changes could be used to rebut the presumption, the effect of normal biological processes of absorption and elimination of alcohol could not of and by itself constitute "evidence to the con­trary" - See para­graphs 59 to 61.

Criminal Law - Topic 5226

Evidence and witnesses - Burden of proof - "Evidence to the contrary" - Meaning of - [See first and second Criminal Law - Topic 1374 ].

Words and Phrases

Evidence to the contrary - The Supreme Court of Canada discussed the meaning of the phrase "evidence to the contrary" as it appeared in s. 258(1)(c) of the Criminal Code, R.S.C. 1985, c. C-46.

Cases Noticed:

R. v. Moreau, [1979] 1 S.C.R. 261; 23 N.R. 541; 89 D.L.R.(3d) 449; 42 C.C.C.(2d) 525, dist. [para. 12 et seq.].

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; 111 D.L.R.(3d) 431, dist. [para. 12 et seq.].

R. v. White (1986), 60 Nfld. & P.E.I.R. 70; 181 A.P.R. 70; 41 M.V.R. 82 (Nfld. C.A.), refd to. [para. 13].

R. v. Creed (1987), 67 Nfld. & P.E.I.R. 249; 206 A.P.R. 249; 7 M.V.R.(2d) 184 (P.E.I.C.A.), refd to. [para. 13].

R. v. Kays (1987), 82 N.S.R.(2d) 18; 207 A.P.R. 18; 3 M.V.R.(2d) 209 (C.A.), refd to. [para. 13].

R. v. Gallagher (1981), 37 N.B.R.(2d) 534; 97 A.P.R. 534; 64 C.C.C.(2d) 533 (C.A.), refd to. [para. 13].

R. v. Dubois (C.) (1990), 37 Q.A.C. 75; 62 C.C.C.(3d) 90 (C.A.), refd to. [para. 13].

R. v. Batley (1985), 39 Sask.R. 259; 32 M.V.R. 257 (C.A.), refd to. [paras. 13, 86].

R. v. Gibson (1992), 100 Sask.R. 88; 18 W.A.C. 88; 77 C.C.C.(3d) 28 (C.A.), refd to. [para. 19].

R. v. Davis, [1974] 1 W.W.R. 87; 14 C.C.C.(2d) 513 (B.C.C.A.), refd to. [para. 19].

R. v. Heisler (W.) (1994), 157 A.R. 178; 77 W.A.C. 178 (C.A.), disapprvd. [para. 42].

R. v. Pryor - see R. v. Heisler (W.).

R. v. Andrews (1983), 59 N.S.R.(2d) 149; 125 A.P.R. 149; 22 M.V.R. 213 (C.A.), disapprvd. [para. 42].

R. v. Hughes (1982), 38 A.R. 276; 70 C.C.C.(2d) 42 (C.A.), disapprvd. [para. 42].

R. v. Kizan (1981), 58 C.C.C.(2d) 444 (B.C.C.A.), refd to. [para. 52].

R. v. G.B. et al. (No. 1), [1990] 2 S.C.R. 3; 111 N.R. 1; 86 Sask.R. 81; [1990] 4 W.W.R. 577; 77 C.R.(3d) 327; 56 C.C.C.(3d) 161, refd to. [para. 93].

R. v. Penno, [1990] 2 S.C.R. 865; 115 N.R. 249; 59 C.C.C.(3d) 344; 49 C.R.R. 50, refd to. [para. 94].

R. v. Heywood (R.L.), [1994] 3 S.C.R. 761; 174 N.R. 81; 50 B.C.A.C. 161; 82 W.A.C. 161, refd to. [para. 95].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, generally [para. 57]; ss. 1, 11(d) [para. 105].

Criminal Code, R.S.C. 1985, c. C-46, sect. 253 [para. 58]; sect. 253(a) [para. 98]; sect. 253(b) [para. 2]; sect. 258(1)(c), sect. 258(1)(g) [para. 6 et seq.].

Interpretation Act, R.S.C. 1985, c. I-21, sect. 25(1) [paras. 25, 77].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Stat­utes (3rd Ed. 1994), pp. 35 [para. 84]; 80 to 99 [para. 91].

Martin's Annual Criminal Code (1995), Synopsis of s. 258, generally [para. 77].

Porter, Shawn, Evidence to the Contrary in Drinking and Driving Cases (1994), 5 J.M.V.L. 277, pp. 278, 279 [para. 85].

Selected Judgments of the Supreme Court of Israel (1992), vol. viii, p. 263 [para. 84].

Statistics Canada, Canadian Centre for Justice Statistics, Impaired Driving Stat­istics for 1992 (1994), 14:5 Juristat 1 [para. 90].

Counsel:

Graham Webb, for the appellant;

David Finley, for the respondent.

Solicitors of Record:

Graham Webb, Barrie, Ontario, for the appellant;

David Finley, Toronto, Ontario, for the respondent.

This appeal was heard on December 2, 1994, before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada. The decision of the court was delivered in both official languages on on March 2, 1995, including the following opinions:

Iacobucci, J. (Lamer, C.J.C., Sopinka, Cory and Major, JJ., concurring) - see paragraphs 1 to 63;

L'Heureux-Dubé, J., dissenting (La For­est, Gonthier and McLachlin, JJ., con­curring) - see paragraphs 64 to 109.