R. v. Boucher (E.) (2005), 342 N.R. 42 (SCC)
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
………………..
Temp. Cite: [2005] N.R. TBEd. DE.002
Her Majesty The Queen (appellant) v. Eric Boucher (respondent)
(30256; 2005 SCC 72; 2005 CSC 72)
Indexed As: R. v. Boucher (E.)
Supreme Court of Canada
McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.
December 2, 2005.
Summary:
The accused was charged with operating a motor vehicle while his blood-alcohol level exceeded the legal limit. A judge of the Municipal Court of Montreal convicted the accused. The accused appealed.
The Quebec Superior Court allowed the appeal. The Crown appealed.
The Quebec Court of Appeal, Forget, J.A., dissenting, dismissed the appeal. See [2004] R.J.Q. 423. The Crown appealed.
The Supreme Court of Canada, Charron, Binnie, LeBel, Deschamps and Fish, JJ., dissenting in part, allowed the appeal.
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) – The Supreme Court of Canada stated that “The standard of proof that must be met to rebut the presumptions of identity and accuracy [in s. 258(1) of the Criminal Code] is the same: reasonable doubt. The defence has no burden of proof. Where there is evidence tending to show (1) that the blood-alcohol level recorded on the certificate is not the same as the level at the time of the offence, (2) that the level did not exceed 80 mg or (3) that the certificate does not accurately reflect the blood-alcohol level, the court does not have to be satisfied on a balance of probabilities. This evidence can come from that adduced by the Crown or the accused.” – See paragraph 15.
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) – The Supreme Court of Canada stated that “Section 258(1)(c) Cr. C. [Criminal Code] expressly provides that the alcohol level measured by a test administered within two hours after the vehicle was driven is, ‘in the absence of evidence to the contrary’, the same as the level at the time when the offence was alleged to have been committed. Although s. 258(1)(g) Cr. C. does not use the expression ‘in the absence of any evidence to the contrary’, those words are included therein by implication because of s. 25(1) of the Interpretation Act, R.S.C. 2985, c. I-21, which allows the presumption to be rebutted by evidence to the contrary: ’25.(1) Where an enactment provides that a document is evidence of a fact without anything in the context to indicate that the document is conclusive evidence, then, in any judicial proceedings, the document is admissible in evidence and the fact is deemed to be established in the absence of any evidence to the contrary.'” – See paragraph 17.
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) – The accused was charged with operating a motor vehicle while his blood-alcohol level exceeded the legal limit – At trial, the accused testified to the amount of alcohol that he had consumed and a defence expert presented evidence respecting average elimination rates – He claimed that this was “evidence to the contrary” – The trial judge convicted the accused – She was of the opinion that his testimony was not credible and so could not serve as a basis for the expert opinion – The accused was successful on two appeals, the first brought by the accused, the second by the Crown – The Crown appealed – The Supreme Court of Canada reinstated the conviction – The court stated that the case “… was not one to which [R. v. D.W.] applied. To neutralize the presumption, the judge needed only to have a reasonable doubt about the accuracy of the breathalyzer result. The approach set out in D.W. is not a sacrosanct formula that serves as a straitjacket for trial courts. Trial judges deliver oral judgments every day and often limit their reasons to the essential points. It would be wrong to require them to explain in detail the process they followed to reach a verdict. They need only give reasons that the parties can understand and that permit appellate review” – See paragraph 29.
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) – The accused was charged with operating a motor vehicle while his blood-alcohol level exceeded the legal limit – At trial, the accused testified to the amount of alcohol that he had consumed and a defence expert presented evidence respecting average elimination rates – He claimed that this was “evidence to the contrary” – The trial judge convicted the accused – She was of the opinion that his testimony was not credible and so could not serve as a basis for the expert opinion – The accused was successful on two appeals, the first brought by the accused, the second by the Crown – The Crown appealed – The Supreme Court of Canada reinstated the conviction – The court stated that “If the expert evidence is based on the accused’s testimony and the accused’s testimony is not believed, the expert’s evidence cannot assist the court or constitute evidence to the contrary.” – See paragraph 31.
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) – The accused was charged with operating a motor vehicle while his blood-alcohol level exceeded the legal limit – At trial, the accused testified to the amount of alcohol that he had consumed and a defence expert presented evidence respecting average elimination rates – He claimed that this was “evidence to the contrary” – The trial judge convicted the accused – The accused was successful on two appeals, the first brought by the accused, the second by the Crown – The Crown appealed – The Supreme Court of Canada reinstated the conviction – The court stated that “… the evidence regarding absorption time presented by the expert in the case at bar was inadmissible. The expert’s evidence was based not on the accused’s personal reaction to alcohol but rather on the absorption process in general and the fictional nature of the presumption itself.” – See paragraph 39.
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) – The accused was charged with operating a motor vehicle while his blood-alcohol level exceeded the legal limit – At trial, the accused testified to the amount of alcohol that he had consumed and a defence expert presented evidence respecting average elimination rates – He claimed that this was “evidence to the contrary” – The trial judge convicted the accused – The Supreme Court of Canada held that the trial judge erred when she stated that the credibility of the accused and his witnesses could be assessed in light of the results of the breathalyzer tests before applying the presumption – Breathalyzer results could not be used to assess the credibility of a witness – It would be circular to rely on the test results to determine whether there was evidence that could raise a doubt regarding those very results – See paragraph 43.
Criminal Law – Topic 1376
Offences against person and reputation – Motor vehicles – Impaired driving – Breathalyzer or blood sample – Proof of blood-alcohol content – The Supreme Court of Canada stated that “Where samples of an accused’s breath have been taken pursuant to a demand made under s. 254(3) Cr. C. [Criminal Code], Parliament has established separate presumptions in s. 258(1) Cr. C. to facilitate proof of the accused’s blood-alcohol level: two presumptions of identity and one presumption of accuracy. According to the presumption of identity in s. 258(1)(c) Cr. C., the accused’s bloodalcohol level at the time when the offence was alleged to have been committed is the same as the level at the time of the breathalyzer test. According to s. 258(1)(d.1) Cr. C., where the alcohol level exceeds 80 mg at the time of the test, there is a presumption that it also exceeded 80 mg at the time when the offence was alleged to have been committed. The presumption of accuracy in s. 258(1)(g) Cr. C. establishes prima facie that the technician’s reading provides an accurate determination of the blood-alcohol level at the time of the test. These presumptions have certain similarities, but they remain distinct presumptions.” – The court discussed the similarities and differences between the presumptions – See paragraphs 14 to 23.
Criminal Law – Topic 4379
Procedure – Charge or directions – Jury or judge alone – Directions re evidence of character or credibility of accused – [See third
Criminal Law – Topic 1374
].
Criminal Law – Topic 4684
Procedure – Judgments and reasons for judgment – Reasons for judgment – Sufficiency of – [See third
Criminal Law – Topic 1374
].
Cases Noticed:
R. v. St. Pierre (G.R.), [1995] 1 S.C.R. 791; 178 N.R. 241; 79 O.A.C. 321, refd to. [paras. 2, 55].
R. v. Proudlock, [1979] 1 S.C.R. 525; 24 N.R. 199, refd to. [paras. 2, 57].
R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, not appld. [paras. 8, 57].
R. v. Latour (P.) (1997), 101 O.A.C. 108; 116 C.C.C.(3d) 279 (C.A.), refd to. [paras. 11, 55].
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, refd to. [para. 16].
R. v. Dubois (C.) (1990), 37 Q.A.C. 75; 62 C.C.C.(3d) 90 (C.A.), refd to. [paras. 28, 57].
R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 29].
R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161, refd to. [para. 29].
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. 41].
R. v. Duguay, [1993] Q.J. No. 58, refd to. [para. 42].
R. v. Bernard (1999), 140 C.C.C.(3d) 412 (Que. C.A.), not folld. [paras. 43, 64].
R. v. Gilbert (T.) (1994), 74 O.A.C. 56; 92 C.C.C.(3d) 266 (C.A.), not folld. [paras. 43, 64].
R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30, refd to. [para. 54].
R. v. Chambers (No. 2), [1990] 2 S.C.R. 1293; 119 N.R. 321, refd to. [para. 66].
R. v. Turcotte (T.) (2005), 339 N.R. 32; 216 B.C.A.C. 1; 356 W.A.C. 1; 2005 SCC 50, refd to. [para. 66].
Statutes Noticed:
Criminal Code, R.S.C. 1985, c. C-46, sect. 258(1)(c), sect. 258(1)(d.1), sect. 258(1)(g) [para. 13].
Authors and Works Noticed:
Béliveau, Pierre, and Vauclair, Martin, Traité général de preuve et de procédure pénales (11th Ed. 2004), para. 830 [para. 17].
Counsel:
Gaétan Plouffe and Germain Tremblay, for the appellant;
Alexandre St-Onge and Marco LaBrie, for the respondent.
Solicitors of Record:
Gaétan Plouffe and Germain Tremblay, Montréal, Quebec, for the appellant;
LaBrie, St-Onge, Boucher, Huet, Gariépy, Longueuil, Quebec, for the respondent.
This appeal was heard on May 10, 2005, by McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ., of the Supreme Court of Canada. The court delivered the following decision in both official languages on December 2, 2005, including the following opinions:
Deschamps, J. (McLachlin, C.J.C., Major, Bastarache and Abella, JJ., concurring) – see paragraphs 1 to 50;
Charron, J., dissenting in part (Binnie, LeBel and Fish, JJ., concurring) – see paragraphs 51 to 67.
