R. v. St. Pierre

LXX. The phrase "evidence to the contrary" in s. 258(1)(c) was already twice the focus of this Court's attention. In my opinion, R. v. Moreau and R. v. Crosthwait squarely apply.

LXXI. In Moreau, an accused failed a breathalyzer test with a reading of 90 mg of alcohol per 100 ml of blood. He was, in other words, just 10 mg over the legal limit. He adduced expert evidence to the effect that all Borkenstein Breathalyzers (the machine which had recorded his result) were inaccurate within 10 mg of alcohol per 100 ml of blood, and argued that this evidence constituted "evidence to the contrary" of the presumption set out in what is now s. 258(1)(c). The Court rejected that argument on the basis that such evidence was aimed not at rebutting the presumption but at defeating the scheme established by Parliament. What is more significant for our purposes, however, is the majority's explanation of the meaning of the phrase "evidence to the contrary". Beetz J., at p. 271, defined that phrase by citing with approval the following passage from the judgment of McFarlane J.A. in R. v. Davis (1973), 14 C.C.C. (2d) 513 (B.C.C.A.), at p. 516:

While not expressed too clearly, I think the intention of Parliament becomes manifest when it is remembered that the fact to be proved is the proportion of alcohol to blood at the time of the offence. The result of the chemical analysis is one method of proving that fact: and the certificates are evidence, inter alia, of that result. It follows, in my opinion, that the concluding part of the subsection means that the result of the chemical analysis is proof of the proportion of alcohol to blood at the time of the offence in the absence of evidence that the proportion at that time did not exceed 80 to 100. Any evidence, therefore, tending to show that at the time of the offence the proportion was within the permitted limits is "evidence to the contrary" within the meaning of the subsection. [Emphasis added by Beetz J.]

Beetz J. then made the following observation, at p. 271:

In order to comply with the wording of the Code, "evidence to the contrary" has to be evidence which tends to establish that the proportion of alcohol in the blood of the accused at the time when the offence was alleged to have been committed was not the same as that indicated by the result of the chemical analysis.

The apparent inconsistency between these two passages has spawned a lively debate as to the true meaning of "evidence to the contrary" in s. 258(1)(c) of the Code. The second passage is relied upon by the appellant in support of her argument that "evidence to the contrary" need not be capable of showing that the accused was actually under the legal limit at the time of the offence.

LXXII. Reading these two passages in the factual and legal context in which they arose, however, demonstrates in my opinion that Beetz J.'s remarks do not support the appellant's argument. It must be recalled that the accused was only 10 mg over the prescribed legal limit. As such, the expert evidence of a 10 mg margin of error in breathalyzers could be seen as "tending to show that at the time of the offence the proportion was within the permitted limits" (p. 271). Put another way, a trier of fact faced with this evidence could have entertained a reasonable doubt that the accused's blood alcohol level at the time of the offence was within legal limits. Given that the accused's evidence appeared to satisfy this initial threshold, Beetz J. therefore had to make it clear that "evidence to the contrary" could not be general in nature, but must also relate to the blood alcohol level of the particular accused. He therefore elaborated at p. 271 on his previous definition of what constitutes "evidence to the contrary" by stating that such evidence also must be

...evidence which tends to establish that the proportion of alcohol in the blood of the accused at the time when the offence was alleged to have been committed was not the same as that indicated by the result of the chemical analysis. [Emphasis added.]

He went on to note that the evidence adduced did not relate to the accused, and therefore did not constitute "evidence to the contrary":

There is no such evidence in the case at bar. Apart from the certificates, there is no evidence of any kind directed at showing what was the proportion of alcohol in the blood of the accused at the time when the offence was alleged to have been committed. [Emphasis added.]

In other words, Beetz J. concluded that general challenges to the breathalyzer scheme did not tend to show that this particular accused's blood alcohol level was any different at the time of the alleged offence, and that such evidence could not, as a matter of law, constitute "evidence to the contrary" because it did not relate to the particular accused. There is no ambiguity. Moreau set down a clear, two-part standard. The confusion that followed stemmed from the fact that many did not read Beetz J.'s comments in their proper context -- i.e. in light of the fact that the expert evidence in that case pointed to a discrepancy which could otherwise have brought the accused's blood alcohol level down to within the legal limit.

LXXIII. If any doubts as to the meaning of the phrase "evidence to the contrary" in s. 258(1)(c) remained after Moreau, however, they were resolved once and for all in Crosthwait, decided some two years later. Crosthwait raised the question of whether expert evidence that the particular breathalyzer in question was not operated properly -- and therefore may have been inaccurate -- constituted "evidence to the contrary" of the presumption in s. 258(1)(c). Pigeon J., for the Court, rejected that argument in the following terms (at p. 1101):

Mere possibility of some inaccuracy will not assist the accused. What is necessary to furnish evidence to the contrary is some evidence which would tend to show an inaccuracy in the breathalyzer or in the manner of its operation on the occasion in question of such a degree and nature that it could affect the result of the analysis to the extent that it would leave a doubt as to the blood alcohol content of the accused person being over the allowable maximum. [Emphasis added.]

It appears that Pigeon J. essentially combined the two thresholds proposed by Beetz J. in Moreau into one: the alleged discrepancy must tend to show that the accused's blood alcohol level could have been below the legal limit at the time of the offence, and the evidence must relate to the particular accused's blood alcohol level, rather than to the scheme in general.

LXXIV. The majority of the Court of Appeal in the present case concluded, at p. 223, that this Court's judgments in Moreau and Crosthwait were dispositive of the appeal:

I think it must be taken as having been settled by the Supreme Court of Canada that, in order for evidence to amount legally to "evidence to the contrary" as that expression is used in s. 258(1)(c), the evidence must tend to show that at the time of the alleged offence the accused person's blood alcohol level did not exceed 80 mg of alcohol in 100 ml of blood.

On the other hand, Arbour J.A., in dissent, sought to distinguish these two cases from situations such as the present one involving post-driving drinking. Arbour J.A. identified a distinction between what she refers to as the "presumption of accuracy" and the "presumption of identity". It is to this question that I now turn.

LXXV. According to Arbour J.A., the "presumption of accuracy" refers to the presumption that the breathalyzer device correctly reflects the accused's actual blood alcohol level at the time of the test. The "presumption of identity", on the other hand, refers to the presumption that the accused's blood alcohol level at the time of the test is the same as that at the time of the offence. To the extent that Moreau and Crosthwait stand for the proposition that "evidence to the contrary" is only that which tends to show that the accused's blood alcohol level at the time of driving was below 80 mg per 100 ml of blood, it is argued that these two authorities do not govern a situation where it is not the accuracy of the particular breathalyzer results that is questioned (i.e. the presumption of accuracy) but rather the presumption that these results reflect the blood alcohol level at the time of driving (i.e. the presumption of identity).

LXXVI. It is argued that these two presumptions are not inconsistent because they flow from different provisions in the Code. The "presumption of accuracy" is said to flow from s. 258(1)(g), whereas the "presumption of identity" is said to flow from s. 258(1)(c). With all due respect, I believe this interpretation to be incorrect. In fact, to invoke an argument that my colleague, himself, relies upon in his reasons, I believe that it defies the "plain wording" of the two provisions. Section 258(1)(g) reads:

(g) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), a certificate of a qualified technician stating

(i) that the analysis of each of the samples has been made by means of an approved instrument operated by the technician and ascertained by the technician to be in proper working order by means of an alcohol standard, identified in the certificate, that is suitable for use with an approved instrument,

(ii) the results of the analyses so made, and

(iii) if the samples were taken by the technician,

(A) [not in force]

(B) the time when and place where each sample and any specimen described in clause (A) was taken, and

(C) that each sample was received from the accused directly into an approved container or into an approved instrument operated by the technician,

is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate; [Emphasis added.]

LXXVII. Section 258(1)(g), taken together with s. 25(1) of the Interpretation Act , R.S.C., 1985, c. I-21 , is said to create a presumption that the reading registered on the breathalyzer is an accurate determination of the accused's blood alcohol level at the time of the testing. It is therefore concluded that the certificate is evidence proving the accused's actual blood alcohol level. My reading of s. 258(1)(g), however, is different. Section 258(1)(g) only deems "the facts alleged in the certificate" to represent, inter alia, the "results of the analyses so made" (s. 258(1)(g)(ii)) (emphasis added). For lack of a better term, I would refer to this presumption as the "presumption of the continuity of the evidence". This presumption is very different from the "presumption of accuracy", since the latter presumes that the results of the analysis are equal to the accused's actual blood alcohol level at the time of testing. There is no reference in s. 258(1)(g), however, to "actual blood alcohol level". Put another way, s. 258(1)(g) is nothing more than a documentary exception to the hearsay rule (see also Martin's Annual Criminal Code 1995, synopsis of s. 258). "Evidence to the contrary" of s. 258(1)(g) (pursuant to s. 25(1) of the Interpretation Act) would only be evidence that tends to show that the information in the certificate is not reflective of the actual results indicated by the breathalyzer (i.e. the technician who administered the test reported the machine's result to the accused as being 120 mg, and yet the certificate shows the accused's blood alcohol level as being 220 mg). With respect, the plain wording of s. 258(1)(g) simply does not support my colleague's explanation of its evidentiary effects.

LXXVIII. Moreover, I believe that my interpretation of the evidentiary effect of s. 258(1)(c) is identical to that adopted by Pigeon J. for the Court in Crosthwait. Namely, Pigeon J. refused, at p. 1099, to find as an implicit condition of s. 237(1)(f) (now s. 258(1)(g)) a requirement that the breathalyzer instrument be shown to be working properly:

In the instant case, the certificate filed at the trial fully complies with the conditions stated in para. (f). It was, therefore, by itself, evidence of the results of the analyses. With respect, I cannot agree that there is another implicit condition namely, that the instrument used must be shown to have been functioning properly.... The presumption [that the breathalyzer result is accurate] may no doubt be rebutted by evidence that the instrument used was not functioning properly but the certificate cannot be rejected on that account. [Emphasis added.]

A requirement that the instrument be shown to be in working order is integral to the "presumption of accuracy". If that requirement is not implicit in s. 258(1)(g), then it follows that the "presumption of accuracy" cannot reside there either. Pigeon J. goes on at pp. 1100-1101 to conclude that where an accused is seeking to challenge the accuracy of the breathalyzer on the basis that the breathalyzer device was inaccurate, then this challenge must come within the rubric of "evidence to the contrary" in s. 258(1)(c) (then s. 237(1)(c)). I am therefore in respectful disagreement with my colleague's conclusion as to the significance of Crosthwait to the present appeal.

LXXIX. An examination of s. 258(1)(c), by contrast, reveals it to be the source of both of Arbour J.A.'s presumptions. Section 258(1)(c) reads:

(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if

(i) [not in force]

(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,

(iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and

(iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,

evidence of the results of the analyses so made is, in the absence of evidence to the contrary, proof that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed was, where the results of the analyses are the same, the concentration determined by the analyses and, where the results of the analyses are different, the lowest of the concentrations determined by the analyses; [Emphasis added.]

Section 258(1)(c) presumes breathalyzer results taken at a later point in time to equal actual blood alcohol levels at the time of the offence. "Evidence to the contrary" of the presumption is evidence which will tend to negate either (1) the presumption that the breathalyzer result is an acceptably accurate indicator of the accused's blood alcohol level at the time of the test; or (2) the presumption that the accused's blood alcohol level at the time of the test is acceptably representative of his blood alcohol level at the time of the offence. The failure of either of these links breaks the logical chain and removes from the Crown the comfort and convenience of relying on the presumption. Both of these logical links are contained within s. 258(1)(c).

LXXX. I therefore conclude, on the basis of my examination of both the plain wording of s. 258(1)(c) and (g) and this Court's ruling in Crosthwait, that both the "presumption of accuracy" and the "presumption of identity" actually flow from the same provision: s. 258(1)(c). Given that both presumptions actually relate to the same phrase in the same provision in the Code, I am most unconvinced that it is still tenable to conclude that "evidence to the contrary" can give rise to two completely different legal standards of proof in relation to the same charge.

LXXXI. The appellant argues that s. 258(1)(c) makes no mention of a requirement that the accused must show that he was not over .08 for the presumption not to apply, and that this Court should reject Galligan J.A.'s interpretation of "evidence to the contrary" in s. 258(1)(c) on the basis that it is not supported by the plain wording of that provision. It is further submitted that the plain meaning of s. 258(1)(c) requires only that an accused adduce evidence that there is a difference, of no particular magnitude, between the accused's blood alcohol level at the time of testing and at the time of the offence. At the same time, the authority of this Court's decisions in Moreau and Crosthwait is accepted for the proposition that challenges to the "presumption of accuracy" will only be "evidence to the contrary" if they are capable of demonstrating that the accused's blood level could have been below the legal limit.

LXXXII. I am unable to reconcile such inconsistency between the "presumption of accuracy" and the "presumption of identity", given that they both flow from the same phrase in the same provision. How can one conclude that the plain meaning of s. 258(1)(c) must prevail in the context of the "presumption of identity" and yet that it need not prevail with respect to the "presumption of accuracy"? On the "plain meaning" of s. 258(1)(c), evidence indicating that the particular breathalyzer test was inaccurate (i.e. rebutting the "presumption of accuracy") is just as "contrary" to the presumption set out in s. 258(1)(c) as evidence "of no particular magnitude" rebutting the "presumption of identity". On a consistent reading, evidence of either event should disentitle the Crown from relying on that presumption. Yet this Court in Crosthwait effectively rejected one possible interpretation of s. 258(1)(c) -- the "plain meaning" approach advocated by the appellant -- and adopted an interpretation that was more consistent with the spirit of the law, having regard to the mischief which the legislation was intended to address, as well as with the spirit and purpose of the presumption.

LXXXIII. I believe that the distinction between the "presumption of identity" and the "presumption of accuracy" is artificial and unnecessary, given that both spring from the identical phrase in the identical provision in the Code. This Court should either explicitly overrule Moreau and Crosthwait, and apply the same "plain language" standard across the board, or recognize that they are still good law and apply them to the case at hand. To accept one standard for the former presumption and another, higher standard for the latter presumption is needlessly confusing. I believe, moreover, that effect can be given to an equally viable "plain meaning" interpretation of s. 258(1)(c) that uses a single legal standard for all circumstances, and that is completely consistent with both Moreau and Crosthwait. I will elaborate below on why I prefer to define "evidence to the contrary" in s. 258(1)(c) as evidence which tends to show that there is a legally material difference between the accused's blood alcohol level at the time of testing and at the time of the offence. What is legally material will, in turn, depend on the charge in relation to which the Crown seeks to invoke the benefit of the presumption in s. 258(1)(c).

LXXXIV. "Plain meaning" must not be used as an end in itself, particularly where it inevitably leads to absurd results which must be inconsistent with what Parliament would have intended. The thoughts of Justice Shamgar, President of the Supreme Court of Israel (as reproduced in Selected Judgments of the Supreme Court of Israel, vol. VIII (1992), at p. 263) strike me as particularly insightful:

... language does not govern the purpose, rather it serves it. The law is an instrument for realizing legal policy, and therefore interpretation needs to aim toward emancipating the wording from its semantic bonds, were these to distance it from the legislative purpose which the words are intended to realize.

"Under a purposive approach, the court defers to the legislature not by decoding its language but by ensuring that its plans are carried out": Driedger on the Construction of Statutes (3rd ed. 1994), at p. 35. The absurdity that flows from a "plain meaning" approach to s. 258(1)(c) is borne out in several possible contexts, all of which strongly suggest that a narrow interpretation of the wording of s. 258(1)(c) distances us from the legislative purpose and intent rather than bringing us closer.

LXXXV. There are four basic means by which an accused may seek to adduce "evidence to the contrary" within the meaning of s. 258(1)(c):

1.Evidence that the breathalyzer machine's results were in error and that a proper result would have been less than 80 mg of alcohol in 100 ml of blood;

2.the "Carter defence" -- i.e. the accused disputes the accuracy of the breathalyzer reading on the basis of what he or she had to drink prior to driving (usually combined with evidence of a forensic toxicologist);

3.the "last drink" defence -- i.e. the accused alleges that his or her pattern of alcohol consumption was such that the blood alcohol concentration was still rising at the time he or she was driving and that it had not yet exceeded 80 mg in 100 ml of blood;

4.the "drinking after driving" defence -- i.e. the accused alleges that he or she consumed alcohol after driving but before the samples were taken.

(See S. Porter, "`Evidence to the Contrary' in Drinking and Driving Cases" (1994), 5 J.M.V.L. 277, at pp. 278-79.) Questions going to the "presumption of identity" arise in the third and fourth instances. If this Court were to accept the appellant's suggested approach to the presumption in s. 258(1)(c), then it would suffice in the fourth instance for an accused to adduce credible evidence of any amount of post-driving drinking, no matter how little, in order to rebut the presumption. As such, if it is credibly asserted that a 200-pound man who has blown twice the legal limit on the breathalyzer test had consumed half a beer after driving but before taking the breathalyzer, a court would have to find that evidence of this consumption of alcohol is "evidence to the contrary" of the presumption contained in s. 258(1)(c), and would have to conclude that the Crown can no longer rely on that presumption. The same result would inure, for that matter, if an individual testified to having taken even a single swallow from a flask in his pocket. The Crown would then have to undertake the time and expense of calling an expert toxicologist to testify to the fact that the effect of the minimal quantity of alcohol consumed after driving would not have been significant enough, given the accused's sex, weight and size, to raise a possibility that the accused's blood alcohol would have been under the legal limit were it not for the additional alcohol. All of this extra time and expense would be precipitated by evidence which an accused need not even show is capable of being legally material to the outcome of the charge.

LXXXVI. Even more absurd, however, is the application of the appellant's suggested approach to the third type of defence mentioned above -- the "last drink" defence. As I understand the implications of that approach, an accused need only adduce evidence of having consumed one or several drinks in rapid succession immediately before embarking in his vehicle in order to rebut the presumption in s. 258(1)(c). No expert evidence would be necessary. This conclusion flows irrevocably from two premises: (1) the fact that judicial notice can be taken of the basic fact that alcohol consumption will, over time, raise blood alcohol level (see Batley v. The Queen (1985), 32 M.V.R. 257 (Sask. C.A.)) and (2) the fact that the "presumption of identity" would be rebutted by any credible evidence (other than evidence about the normal fluctuations involved in metabolizing alcohol) which tends to show that the breathalyzer result may be unrepresentative of the accused's blood alcohol level at the time of the offence.

LXXXVII. In fact, in such cases, it would be to the accused's benefit not to adduce expert evidence, since the Crown would inevitably cross-examine that expert and, should it turn out that in the expert's opinion, the amount of alcohol consumed was incapable of lowering the accused's blood alcohol level below the legal limit, then the Crown could use the expert's evidence to overcome the fact that it cannot rely on the presumption in s. 258(1)(c). If, on the other hand, an accused simply shows up with witnesses willing to support his story of recent alcohol consumption, then the Crown will face three alternatives: (1) it can try to find its own expert toxicologist who is available to testify on the spur of the moment; (2) it can ask for an adjournment in order to obtain this expert at a later date; or (3) it can withdraw the charges. Both the first and second alternatives are costly and time-consuming. The third alternative will be an all-too-easy escape route for Crowns whose dockets are already filled to overflowing with drinking and driving cases.

LXXXVIII. Moreover, as I have already mentioned, preserving the distinction between the "presumption of accuracy" and the "presumption of identity" would result in different standards as to what constituted "evidence to the contrary" stemming from the very same provision of the Code. If an accused were to allege that the particular breathalyzer test was improperly administered and therefore materially inaccurate, then he must provide evidence capable of raising a reasonable doubt that his blood level was below the legal limit at the time of the offence. If, on the other hand, he were to invoke the "last drink defence" or the "drinking after driving defence", then there would be no obligation on him to show that this evidence, if believed, was capable of raising a reasonable doubt that he was under the legal limit at the time of the offence. If he were to raise both defences, then the trial court would have to wrestle with two completely different evidentiary standards in relation to the same provision and the same charge. Such an implication strikes me as highly incongruous. Surely this is an untenable approach, which could not possibly have been intended by Parliament.

LXXXIX. I believe that we need not even look beyond the confines of the present appeal to find absurdities in the interpretation suggested by the appellant. At the close of the Crown's case, the trial judge remarked upon the fact that he was acquitting the appellant even though he was fully aware of the fact that the alcohol which the appellant claimed to have consumed would not have affected her blood alcohol concentration enough to raise a doubt that it was below the legal limit at the time of the offence:

Maybe I am misunderstanding something but the Crown has adduced evidence in this case that empty alcohol bottles were found on Mrs. St. Pierre's person and the Crown sought to introduce a statement made by her that she had consumed alcohol from those bottles after driving, and before giving the tests.

. . .

And in the absence of a forensic toxicologist, who could tell me that 100 millilitres of vodka, rum, or any standard alcohol would not reduce 180 milligrams percent to below 80 milligrams percent? I mean, we both know that as a matter of reality, but I do not know that judicially. [Emphasis added.]

Imposing a burden on the Crown to adduce expert toxicological evidence in circumstances where, practically speaking, there is not even an air of reality to the accused's defence seems clearly at odds with the mischief that Parliament meant to address by way of this presumption. More significantly, it seems clearly at odds with the way in which we generally treat evidentiary onuses on an accused to permit such an onus to be displaced by evidence that is actually legally immaterial to the outcome.

XC. Parliament enacted the presumption in s. 258(1)(c) in clear recognition of the difficulty and expense of requiring expert evidence in virtually every alcohol-related driving offence. In Canada in 1992 alone, police recorded 132,377 impaired driving incidents, of which 105,766 persons were charged with impaired driving related offences: "Impaired Driving -- Canada, 1992" (1994), 14:5 Juristat 1. The enormous burden on our court system posed by these offences must be appreciated. The presumption in s. 258(1)(c) is an important means by which Parliament has sought to address this problem. The presumption strikes a fair balance between collective and individual interests by permitting the efficient and effective enforcement of impaired driving laws in a way that does not in any material sense prejudice the right of individual accused to a full and fair trial. I therefore cannot accept that Parliament could have intended this presumption to be suspended in every case where the accused invokes either the "last drink" defence or the "post-driving drinking" defence, where there is not even an iota of proof to suggest that the discrepancy occasioned by the alcohol consumption would be of any legal relevance to conviction or acquittal on a charge of "over 80", and where the only effect in the vast majority of cases is to increase the time and expense of successful prosecution. To adopt the approach suggested by the appellant would be to disregard that clear intention.

XCI. If ever a case existed for rejecting a tightly tailored "plain meaning" approach in the face of consequences that are both absurd and contrary to the spirit and purpose of the law, it is raised in the present appeal. Of course, it is not for a court to second-guess the wisdom of the legislature since, subject to constitutional constraints, the legislature is entitled to legislate irrationally if it so chooses. Nonetheless, this Court should not adopt an interpretation of s. 258(1)(c) that would lead to absurd consequences when the mischief intended to be addressed is so poignantly clear (see Driedger, supra, at pp. 80-99). The wording of the provision, while not a model of clarity, can be reasonably and purposively interpreted when placed within its proper context. Parliament could not have intended to be more lenient toward individual drivers who, intentionally or not, act in such a way as to defeat the very purpose of the scheme intended by Parliament to regulate their potentially dangerous behaviour.

XCII. This Court has on previous occasions eschewed reliance on the "plain meaning" of provisions in the Criminal Code in instances where adopting that interpretation would frustrate Parliamentary intent in an absurd and obviously unintended manner. It would be breaking no new ground to adopt a similar position in the present case.

XCIII. In R. v. B. (G.), [1990] 2 S.C.R. 3, this Court was called upon to interpret the meaning of former s. 586 of the Code, which imposed a corroboration requirement on unsworn children's evidence. The plain meaning of that section appeared to require that the corroborative evidence must, itself, implicate the accused. Wilson J., speaking for the Court, rejected this interpretation, notwithstanding the fact that it flowed from the plain meaning of the provision. She turned to a purposive analysis of s. 586 and interpreted the provision "liberally" to mean that the only evidence required was evidence that tended to demonstrate the truth of the child's story (at pp. 28-29). In the face of a "plain meaning" reading that seemed to defy both common sense and the purpose and intent of the legislation, this Court adopted an interpretation that was consistent with the mischief Parliament sought to avoid and yet that did not render the accused's trial unfair.

XCIV. In R. v. Penno, [1990] 2 S.C.R. 865, this Court was asked to clarify whether former s. 234(1) of the Code, which made it an offence to assume care or control of a motor vehicle while impaired, could operate in an instance where the accused claimed to be so intoxicated that he recalled nothing of the events. Arguably, the ordinary meaning of "care and control" within its immediate context would dictate the conclusion that an individual cannot have care or control if they are too drunk to have such a capability. McLachlin J. rejected such an approach in the following terms (at pp. 899-900):

Impairment being an essential element of the crime, it is illogical and contradictory to suppose that Parliament intended that its express aim of making such impairment criminal should be defeated by an unexpressed implication of law that the same impairment may provide an effective defence.

...

Failure to recognize the inherent contradiction involved in the proposition that an essential element of an offence may also be a defence leads to absurdity. It leads, for example, to the conclusion that the more impaired a person is, the more likely he or she is to be acquitted of the offence of impaired driving. That a person should be too impaired to be convicted of impaired driving strikes most people as ridiculous. It represents, in short, a contradiction in terms.

I query whether it would not also strike most people as ridiculous that a person who claims to have consumed alcohol in the police station before submitting herself to a breathalyzer test should be able to rely on that evidence, without taking any steps to show its legal materiality, as a defence to a charge of driving "over 80", requiring the Crown to adduce the expert evidence of a forensic toxicologist or to proceed upon the less precise charge of impaired driving.

XCV. Most recently, in R. v. Heywood, [1994] 3 S.C.R. 761, Gonthier J., dissenting, declined to follow the ordinary meaning of the word "loiter", as it was used in s. 179(1) (b) of the Criminal Code . Rather, having regard to the legislative history, the context, and the purpose of the legislation -- which was to protect children against the material risk of recidivism in those convicted of sexual assaults -- he concluded that "loiter" must include some element of malevolent or ulterior purpose. His reading of this term permitted him to find that s. 179(1)(b) did not violate the Canadian Charter of Rights and Freedoms .

XCVI. I would note, as well, that references in s. 258(1)(c) to actual blood alcohol levels, although legally irrelevant for the purposes of conviction on an "over 80" charge, can nonetheless have meaningful sentencing implications with respect to such prosecutions. If there were no legislative presumption that properly administered breathalyzer results were retroactively accurate to the time of the offence, or if s. 258(1)(c) only presumed the breathalyzer result to be sufficiently accurate to determine that the accused was over the legal limit, then it would follow that the Crown could not point to extremely high levels of intoxication as an aggravating factor in sentencing unless it first adduced expert evidence to prove the accuracy of the breathalyzer result as a measure of the accused's alcohol level at the time of the offence. Requiring such expert evidence, however, would be both time-consuming and costly, and would once again frustrate the very mischief that Parliament sought to avoid by way of the presumption in the first place. I think that this is a pertinent consideration, however, which may partly explain why Parliament chose to formulate this presumption in terms of actual blood alcohol levels rather than in terms of whether the accused was presumably over or under the legally prescribed limit. A preferable approach, in my view, would be to acknowledge that although a discrepancy may not be legally material to conviction, it may nonetheless be a legitimate consideration at the sentencing stage.

XCVII. As such, in respect of a charge of "over 80" under s. 253(b) of the Code, I approve the reasoning of Galligan J.A., speaking for the majority of the Ontario Court of Appeal, at p. 230:

The offence created by s. 253(b) is driving with a blood alcohol concentration of more than 80 mg of alcohol in 100 ml of blood. A conviction will result if the concentration is over 80 and an acquittal if it is not. There is no obligation to establish the precise amount above 80 in order to prove the offence. So long as the concentration is over 80, the offence is established and it is legally immaterial, for purposes of conviction by how much the offence exceeds 80. Thus, so long as it is over 80, the exact concentration is legally immaterial. I must then ask, did Parliament intend to provide a presumption to prove the offence or to prove the exact amount by which the driver was over 80? The answer seems to me to be obvious. Parliament would not have intended to provide a mechanism to prove something which is legally immaterial. [Emphasis added.]

He then concludes at p. 231:

It is my opinion that to permit "evidence to the contrary" to be interpreted to include evidence which shows only that the concentrations at the time of driving and testing were not the same would permit the rebuttal of the presumption by the presentation of evidence which really only shows the possibility of some uncertainty about that element of the scheme.

On the other hand, evidence which tends to show that an accused, at the time of the offence, did not have a concentration of alcohol in his or her blood exceeding 80 mg of alcohol in 100 ml of blood ... constitutes evidence to the contrary because it tends to rebut the presumption and does not produce the absurd result produced by the other interpretation. It does not render an important part of the scheme ineffective.

As I have already mentioned, however, I wish to qualify his remarks in one very important respect. It must be recalled that Galligan J.A. was addressing the presumption in s. 258(1)(c) in the context of a proceeding in which the accused was only charged with being "over 80", contrary to s. 253(b). The same can be said of both Moreau and Crosthwait. As such, none of the above judgments addressed the interaction between the presumption in s. 258(1)(c) and the offence of impaired driving under s. 253(a). Although this question does not arise on the facts of the present case and was not raised by either of the parties, it is a concern mentioned by my colleague, and I will therefore address it briefly.

XCVIII. My colleague observes that actual blood alcohol levels, while not relevant to an "over 80" charge, may be of considerable importance where the Crown elects to proceed against the accused on an "impaired driving" charge pursuant to s. 253(a) of the Code. Indeed, breathalyzer results are frequently used as an element of proof of actual impairment, and a breathalyzer reading of 180 mg is no doubt greater support for a finding of actual impairment than would be a reading of 100 mg. I therefore agree with Justice Iacobucci that it could operate unfairly to the accused to hold that the presumption in s. 258(1)(c) will not be rebutted unless the accused adduces evidence tending to show that he could be under the legal limit.

XCIX. The same concerns, however, do not flow from my proposed interpretation of "evidence to the contrary" in s. 258(1)(c). Where the Crown seeks to rely on a breathalyzer result for the purposes of supporting an impairment charge under s. 253(a), then any evidence tending to raise a doubt as to impairment is legally material (other than, of course, fluctuations relating to the normal process of metabolizing of alcohol in blood). In such cases, materiality may very well depend upon factors such as the accused's actual blood alcohol level, the degree of discrepancy alleged, and the nature and extent of the other evidence as to impairment. In some cases, the exact breathalyzer reading may be highly relevant to an essential element of the offence and even small differences will be legally material. The same cannot be said in relation to an "over 80" charge.

C. There is no need to give s. 258(1)(c) different meanings depending on whether it applies in conjunction with s. 253(a) or (b). Rather, we need only recognize that a provision with one meaning may have different applications to the two different charges to which it relates. This proposition is hardly controversial or new. I hasten to add that it is certainly less novel than giving a single phrase in a single provision two different interpretations in respect of the same charge, which is the apparent result of the distinction between the presumptions of accuracy and identity.

CI. To summarize, then, I would only emphasize again that the presumption in s. 258(1)(c) must be interpreted in the context of the charge in relation to which it is being invoked. Moreover, as I have already mentioned, although actual blood alcohol levels may be legally immaterial to conviction, they may be relevant in the context of sentencing. As such, evidence which shows that the blood alcohol level of the convicted driver was lower than the test result may be a factor to consider in sentencing. I do not believe it to be either contrary to Charter values or in any way unjust to the accused to require that "evidence to the contrary" be legally material in respect of the offence with which the accused is charged. The onus on the accused is purely evidentiary in nature, and flows from an interpretation of the provision which avoids patent absurdity.

CII. I would also like to address briefly my colleague's concern that the presumption in s. 258(1)(c) not be interpreted so as to require the accused to prove his innocence, or so as to impose a burden upon the accused to raise a reasonable doubt as to his guilt before the Crown has put forward its entire case. If "evidence to the contrary" in s. 258(1)(c) is interpreted in the manner that I suggest, then all that is necessary for an accused to rebut this presumption will be for that individual to point to credible evidence which tends to show that there is a legally material difference between the accused's blood alcohol level at the time of the offence and the result indicated by the breathalyzer reading.

CIII. In the context of an "over 80" charge, it will be necessary for the accused to point to credible evidence which tends to show that his blood alcohol level could have been under the legal limit. This evidence will typically take the form of expert evidence to the effect that the alcohol consumed after driving (or immediately before embarking) would generally affect a person of the accused's sex, height and body weight within a certain range of values. Thus, for instance, an accused may adduce expert evidence indicating that when the effect of alcohol allegedly consumed after driving is subtracted from the actual blood alcohol reading on the breathalyzer, it would bring the accused's blood alcohol level to anywhere between 70 and 120 mg of alcohol per 100 ml of blood. This evidence would amount to "evidence to the contrary" of the presumption in s. 258(1)(c), and the Crown would no longer be able to rely on that presumption to prove its case against the accused. There is no need for the accused to demonstrate that his blood alcohol level is actually below .08. He need only adduce credible evidence tending to show that this is possible under the circumstances. He needs to show, in other words, that the discrepancy is legally material. The onus on the accused is strictly evidentiary in nature, and arises as a practical consequence of the Crown justifiably relying on the presumption in s. 258(1)(c) until the accused adduces some evidence to show that this reliance is unjustified to a legally material degree.

CIV. In the context of an impaired driving charge, by contrast, it will only be necessary for an accused to point to credible evidence of an overestimation of blood alcohol level that is sufficiently large that it tends to raise a doubt as to impairment. As I said earlier, the magnitude of the discrepancy required to rebut the presumption is a determination to be made in light of the totality of the facts in each case. Once again, however, the important point for our purposes is that the accused need not demonstrate that the discrepancy is large enough to disprove impairment, but need only point to evidence that is capable of raising a doubt as to impairment.

CV. I agree that the reversal of burden created by s. 258(1)(c) may indeed constitute a breach of s. 11(d) of the Charter , as suggested by my colleague, since this statutory presumption relieves the Crown of its duty to prove independently all of the elements of the offence beyond a reasonable doubt. However, I note without deciding that such an infringement would very likely survive Charter scrutiny under s. 1 as a reasonable and demonstrably justifiable limit on the right, given the overwhelming importance of effective enforcement measures to curb the dangers of drunk driving.