R v Cyr-Langlois : What Does It Take to Rebut the Presumption of Reliability for Breathalyzer Tests?
In 2018, the Supreme Court of Canada [“SCC” or “the Court”] heard three appeals dealing with various aspects of impaired driving proceedings. The first two were both heard in February, and decisions were released in late October. In R v Awashish, 2018 SCC 45 [“Awashish”], the Court considered the common law remedy of certiorari and its availability against interlocutory judgments (see TheCourt.ca’s post on the case here). R v Gubbins, 2018 SCC 44 [Gubbins] (see TheCourt.ca’s post here), by contrast, dealt with whether the Crown must disclose the maintenance records of breathalyzer machines to the accused (depending on whether these records are categorized as first party or third party records). The third case, R v Cyr-Langlois, 2018 SCC 54 [Cyr-Langlois], is the subject of this post.
At issue in Cyr-Langlois was the scope of the evidence that an accused must produce in order to rebut the presumption of reliability of a breathalyzer test, as set out in section 258(1)(c) of the Criminal Code, R.S.C. 1985 c. C-46. The Court ruled from the bench when the appeal was heard on October 15, 2018, allowing the Crown’s appeal and ordering a new trial. It provided written reasons on December 6, 2018. While the majority’s reasons are perhaps appropriate to the specific circumstances of the case, their brevity overlooks important constitutional considerations. Justice Côté’s compelling dissent takes into account these larger issues engaged by raising the burden on the accused to rebut the presumption of reliability.
Facts and Case History
On July 12, 2012 Marc Cyr-Langlois was stopped by two police officers on the suspicion of impaired driving. One officer, Constable Cousineau, proceeded to arrest him at approximately 12:35 a.m. Mr. Cyr-Langlois was searched and then taken to the police station at 12:54 a.m. where he was taken into a room and monitored briefly by Constable Cousineau while the other officer – Constable Boissonneault, a qualified breathalyzer technician – prepared the breathalyzer instrument and ran a control test. Constable Cousineau left Mr. Cyr-Langlois alone while he conferred with counsel via telephone. He was monitored through the window by Constable Cousineau, and the call ended at 1:05 a.m. Shortly after this, Mr. Cyr-Langlois was administered the first breathalyzer test at approximately 1:08 a.m. by Constable Boissonneault. This test showed 157 mg of alcohol in 100 mL of blood – well over the legal limit of 80 mg of alcohol in 100 mL of blood. The second test was administered at 1:30 a.m. and the results were 148 mL of alcohol in 100 mL of blood.
Despite the difference in results between the first and second tests, Mr. Cyr-Langlois’ results in both tests were well over the legal limit, and he was subsequently charged with operation while impaired (“over 80”) under section 253(1)(b) of the Criminal Code. Mr. Cyr-Langlois argued that burping is known to throw off the results, and since Constable Cousineau could not have observed whether the respondent burped while speaking to counsel, the proper procedure had not been followed and there was doubt about the reliability of the tests.
Chief Justice Wagner opens the majority’s reasons with a reassertion of previous SCC jurisprudence that has established the procedure for a rebuttal under section 258(1)(c) of the Criminal Code. According the Court’s ruling in R v St-Onge Lamoureux, 2012 SCC 27 [St-Onge Lamoureux], an accused may rebut the presumption of accuracy and identity of a breathalyzer test by adducing “evidence tending to show that the malfunctioning or improper operation of the approved instrument casts doubt on the reliability of the results” (Cyr-Langlois, para 3). The accused is successful when (1) he or she produces evidence that relates to the malfunctioning or improper operation of the breathalyzer equipment, and (2) when this evidence gives rise to a reasonable doubt about the accuracy of the results of said test.
At the Court of Québec, the trial judge ruled that Constable Cousineau’s failure to observe the accused consistently for 15 or 20 minutes prior to administering the breathalyzer test raised a reasonable doubt. The judge therefore acquitted the accused. The Crown, arguing that the accused had not provided evidence to rebut the presumption of reliability, appealed the acquittal to the Quebec Superior Court (2015 QCCS 4369). The Court allowed the appeal, finding that the trial judge erred in law by not requiring the accused to produce evidence to support the rebuttal. It set aside the acquittal and ordered a new trial. But this ruling was overturned by the Quebec Court of Appeal (2017 QCCA 1033), which set aside the Superior’s court ruling and reinstated the trial judge’s acquittal.
Chief Justice Wagner, for the majority of the Court, identified the one issue to be addressed at the SCC: Can purely speculative evidence satisfy the accused’s burden to raise a reasonable doubt surrounding the reliability of the breathalyzer test results? In short order, the majority rejected the idea that “mere hypothetical possibilit[ies]” are insufficient to engage reasonable doubt (Cyr-Langlois, para 15). This does not rule out the possibility that abstract evidence may raise a reasonable doubt as to the proper operation and functioning of the instrument, but the majority found that a factual determination will more often be required to rebut the presumption.
In the respondent’s case, the officers searched him twice, monitored him, and administered two breathalyzer tests, the results of which were consistent with the charge. The Court rejected the so-called burping defence, noting that “if there was a digestive issue [that] had a distorting effect, it must have occurred before each test and affected each result in the same way” (Cyr-Langlois, para 15). Evidence to support this argument was not provided.
The majority agreed with Justice Bélanger’s dissent in the Quebec Court of Appeal decision, noting that “the evidence should not be mere hypothesis or conjecture” (Cyr-Langlois, para 16). Because they found that only evidence produced to rebut the presumption was indeed based on conjecture and speculation, the majority held that the Court of Appeal’s majority ruling erred in reversing the lower court decision. Therefore, the majority found that because it is an error of law to accept theoretical evidence based on speculation as sufficient to raise a reasonable doubt, the Court of Appeal’s decision must be reversed and the Superior Court’s decision to set aside the acquittal and order a new trial be reinstated.
Justice Côté opened her dissent by noting that in St-Onge Lamoureux, the Court found that the evidentiary scheme for over 80 offences violates the presumption of innocence guaranteed by section 11(d) of the Canadian Charter of Rights and Freedoms [Charter]. This infringement was justified because “of the recognized reliability of breathalyzer test results” (Cyr-Langlois, para 20) and because the accused still has an opportunity to raise a reasonable doubt about the machine’s presumed reliability. Justice Côté agreed with the trial judge’s finding that the breathalyzer results may be unreliable, a finding based on expert testimony. At trial, a qualified technician testified that not complying with observation periods could raise a reasonable doubt about the reliability of the results (para 21). There was, therefore, no error in law at the trial level.
Justice Côté’s dissent is grounded in the majority’s reasons in St-Onge Lamoureux. Specifically, there the Court found that the constitutionality of the evidentiary scheme in section 253(1)(b) is justified under section 1 precisely because there is a real option for the accused to challenge the presumed reliability of the breathalyzer tests. Reliability depends on both the instruments functioning properly and the technicians following proper procedure in administering the tests. In other words, the Court in St-Onge Lamoureux did not rule out the possibility that human error could undermine the reliability of these tests. This proper procedure, Justice Côté noted, includes the stipulation that the technician observe the accused for 15 minutes before the test is administered (St-Onge Lamoureux, para 35). If reliability hinges on the instruments functioning properly and being operated properly, then the failure to follow procedure surrounding observation times may indeed suffice to raise a reasonable doubt.
With respect to the kind of evidence that must be presented to rebut the presumption, while the Court did not provide specifics in St-Onge Lamoureux, it did note that “the instruments may not function optimally if the suggested procedures are not followed” (Cyr-Langlois, para 30, quoting St-Onge Lamoureux, para 43). This is not a statutory condition, but Justice Côté noted that what is required is only the raising of a reasonable doubt, not evidence that the results themselves are inaccurate (Cyr-Langlois, para 33). If the accused successfully raises a reasonable doubt, the burden then shifts to the Crown to demonstrate that the doubt that has been raised did not adversely impact the accuracy of the test being administered (Cyr-Langlois, para 38).
Ultimately, Justice Côté’s objection to the majority’s holding that factual evidence must be provided by the accused is grounded in a concern that this will change the burden on the accused. The accused must undermine the presumed reliability of the test, not prove the accuracy of the results. Reliability and accuracy are not synonymous. While reliability relates to functioning without error over time, accuracy conjures up ideas of truth. Casting doubt of the accuracy of the results is too high a burden for the accused, and moreover, would infringe the presumption of innocence (Cyr-Langlois, para 35) beyond that which was justified in St-Onge Lamoureux. Because the presumption of reliability of breathalyzer tests only passes constitutional muster if the accused is afforded a real opportunity to rebut, requiring the accused to raise doubt about the accuracy of the results potentially invalidates the constitutionality of the whole presumption of reliability.
The majority’s reasons are almost too succinct in Cyr-Langlois, overlooking the very important context of the presumption of reliability raised by Justice Côté in her dissent. If indeed the constitutionality of section 253(1)(b) rests on the ability of the accused to rebut the presumption of reliability, and if the raising a doubt becomes too difficult for the accused, then “such a requirement would render even more illusory the defences on which the constitutionality of the evidentiary scheme at issue in St-Onge Lamoureux depends” (Cyr-Langlois, para 22). While the majority’s argument prevailed in Cyr-Langlois, Justice Côté’s compelling dissent raises the larger issues at stake in the appeal, both for the presumption of reliability and the presumption of innocence.
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