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| John L. Hill |
The appeals of Yewon Kim, Marcos Hepfner and David Gault prompted the Ontario Court of Appeal to examine, for the first time, what evidence the Crown must present at trial before it can rely on a conclusive presumption of correctness in blood alcohol concentration tests performed with an Approved Instrument in prosecuted impaired driving cases under s. 320.14 of the Criminal Code.
In Alberta, the evidential requirement is that the Crown must present direct evidence from the analyst
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Having an analyst sit in a courtroom all day and not being available in a lab where such tests are conducted creates obvious procedural and logistical issues.
A different approach was adopted in the Yukon Court of Appeal in R. v. MacDonald, 2022 YKCA 7. The MacDonald stance has been upheld in other provincial appellate courts: by the New Brunswick Court of Appeal in Rousselle v. R., 2024 NBCA 3, leave to appeal granted, [2024] S.C.C.A. No. 65; Larocque v. R., 2024 NBCA 4, leave to appeal granted, [2024] S.C.C.A. No. 67, and the Québec Court of Appeal in R. v. Vigneault, 2024 QCCA 793, leave to appeal requested, 41429. The MacDonald ruling mandates the Crown to demonstrate that the testing was performed according to established standards. Nonetheless, when a qualified technician states that the system calibration check was carried out against an alcohol standard certified by an analyst, this indicates that the alcohol standard was indeed certified by an analyst. The analyst is not required to be present in court. No further evidence is necessary to establish the presumption of accuracy.
The fact that appellate decisions in the provinces listed above, which have adopted the MacDonald approach, have been granted leave to the Supreme Court might raise concerns that Canada’s top court could confirm its 2021 decision to maintain the Goldson reasoning.
The Ontario Court of Appeal chose to follow the line of cases established in MacDonald. Its decision was based on the belief that it aligned with the principles of statutory interpretation. What the Appeal Court calls the “modern principle” requires a court to interpret statutory language through a textual, contextual and purposive analysis to find a meaning that fits with the Act as a whole (Piekut v. Canada, 2025 SCC 13, citing Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54 and R. v. Downes, 2023 SCC 6).
The Appeal Court quoted the Supreme Court in holding that “Statutory interpretation is centred on the intent of the legislature at the time of enactment and courts are bound to give effect to that intent”: Telus Communications Inc. v. Federation of Canadian Municipalities, 2025 SCC 15, 36 Admin. L.R. (7th) 173.
The Ontario Court of Appeal summarized that the convictions of the three appellants relied on their argument that the evidence used in their convictions was hearsay. They contended that the Crown must prove the alcohol standard through direct evidence from the analyst. The Crown’s practice of establishing that the Approved Instrument was functioning properly by using a Certified Qualified Technician is inadequate because the qualified technician has no direct knowledge that the alcohol standard used as a benchmark is what it claims to be. A qualified technician’s statement, whether via certificate or viva voce, that the alcohol standard they used was certified by an analyst is hearsay and inadmissible because the technician’s only source of that information is the certificate provided by the analyst. Therefore, the qualified technician has no way of knowing whether the statements in the analyst’s certificate regarding the alcohol standard are true and accurate.
However, the Appeal Court agreed that the wording of s. 329.32(1) is clear and precise. As the court held in MacDonald, “if the qualified technician’s certificate is ‘evidence of the facts alleged’ in it, the Crown has, by filing the certificate, introduced evidence that the alcohol standard was certified by the analyst.”
An accused person is not left without recourse if there is suspicion that the certificate of analysis is incorrect. If there is reason to cross-examine the analyst on the certificate of analysis, the appellant can apply before trial for leave to do so under s. 320.32(3). Suppose the Crown fails to disclose the certificate of analysis, and the accused wishes to argue that they have not been provided with sufficient information to assess whether the standard used was appropriate. In that case, this can be addressed by referring to the specific disclosure obligations in s. 320.34(1), using the same remedies available for any other disclosure shortcoming. No unfairness should result.
Until the Supreme Court of Canada makes the final decision, drivers charged with impairment in Ontario will be subject to the MacDonald interpretation.
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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