Privacy challenge in DUI blood test case fails to sway Quebec Court of Appeal

Law360 Canada (August 19, 2025, 10:52 AM EDT) --

John L. Hill

Fighting an impaired driving charge can be challenging, but it is not impossible. Obstacles often stem from potential errors in police procedures, faulty breathalyzer readings and alternative explanations for a toxicologist’s report. These issues were highlighted in a recent Quebec Court of Appeal decision (R. v. Chartrand, 2025 QCCA 945).

On March 17, 2018, at approximately 2:52 a.m., Nadia Chartrand caused a head-on collision that resulted in the death of one driver and injuries to a passenger. A hospital blood test taken about 90 minutes later revealed her blood alcohol concentration (BAC) was between 172 and 233 milligrams per 100 millilitres, well above the legal limit. An expert testified that at such levels, impairment is inevitable and the likelihood of accidents significantly rises.

Investigators obtained Chartrand’s hospital blood samples through a search warrant on March 22, 2018, and later secured her medical records via production orders on March 27, 2018, and May 20, 2021.

Chartrand testified in her defence that she had consumed only a 20-ounce draft of Michelob Ultra beer at a St-Hubert restaurant, insisting she recognized the taste. The beer identified has lower alcohol content than other brands. She even filed a photo of the restaurant’s beer taps taken two weeks later, supposedly to prove Michelob beer was on tap. Based on this claimed consumption, cross-examination of the prosecution expert suggested her BAC would have been 0-73 milligrams per 100 millilitres — within legal limits if her description of the brand and quantity she consumed was accurate.

However, rebuttal evidence indicated that Michelob Ultra was not available on tap in Quebec in March 2018, undermining her version of events.

Chartrand was convicted on Sept. 27, 2022, by the Court of Quebec, Criminal Division, of (1) impaired driving causing death, (2) driving with a blood alcohol level over the legal limit causing a fatal accident, (3) impaired driving causing bodily harm, and (4) driving with a blood alcohol level over the legal limit causing an accident resulting in bodily harm. Due to the rule against multiple convictions, a conditional stay of proceedings was granted on counts 2 and 4.

Chartrand argued that the trial judge had erred in allowing the Crown to adduce rebuttal evidence. She maintained that the argument that her evidence about drinking a low-alcohol brand of beer was foreseeable and ought to have been dealt with when the Crown led evidence in chief. It was used to diminish Chartrand’s credibility.

The Court of Appeal acknowledged that the criteria for the admissibility of rebuttal evidence introduced by the prosecution are outlined in two Supreme Court of Canada cases: R. v. Krause, [1986] 2 S.C.R. 466 and R. v. Aalders, [1993] 2 S.C.R. 482. These cases explain that certain conditions must be satisfied: (1) the rebuttal evidence must aim to counter a new fact or argument presented by the defence, which the prosecution could not reasonably have foreseen; and (2) the new fact or argument must concern a critical issue that could be decisive in the case.

While a low percentage of alcohol in a particular brand of beer relates to a crucial and decisive issue, the defence was not one that the prosecution could have reasonably foreseen. The fact may damage Chartrand’s credibility, but this alone is not enough to conclude that it was wrongly admitted.

Chartrand also argued that using production orders to review her hospital records should not have been permitted, as it violated her privacy rights, a point also made in R. v. N.S., 2024 QCCA 876. She could have challenged its admissibility at trial. However, the Court of Appeal determined that the trial judge balanced the right to privacy against the necessity of establishing the appellant’s blood alcohol level through evidence. Essentially, the court viewed that using a small portion of the appellant's hospital records would not cause irreparable harm to the health care system or the patient-physician relationship and that the pursuit of truth should prevail in this case.

Chartrand did not oppose the admissibility of the expert report to establish her blood alcohol level, based on blood samples collected at the hospital and obtained through an uncontested search warrant. Even if there was an error, the judgment could be upheld by applying the curative proviso in s. 686(1)(b)(iii) of the Criminal Code.

The appeal court also rejected Chartrand’s argument that blood samples from the hospital in an unsealed bag bearing her name but listing the wrong room number should make the testing results inadmissible. This fails to show an error in the judge’s finding that the only reasonable conclusion from this circumstantial evidence is that the blood samples analyzed by the Forensic Science and Forensic Medicine Laboratory are from Chartrand.

Chartrand’s final argument was that the trial judge improperly assessed her credibility. The judge explained why he found her story, considering the evidence presented at trial, to be filled with improbabilities, inconsistencies and contradictions. In the absence of a clear and overriding error in this assessment, the appeal court must defer to this conclusion.

Chartrand was unable to challenge the admission of crucial evidence persuasively and was ordered to report herself to prison authorities by Aug. 5, 2025, at 3 p.m.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books) was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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