Canadian Underwriter

What the top court said drivers need to beat an impaired charge

December 7, 2018   by David Gambrill

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Impaired drivers need more than just speculation to prove that a breathalyzer test may not be valid – they must put forward evidence to prove it, the Supreme Court of Canada has ruled.

The decision is of interest to the insurance industry in part because it raises the standard for impaired drivers to challenge their breathalyzer tests. This would not only have a residual impact on insureds’ driving records, but also potentially increase the likelihood of an insurer denying coverage based on an impaired driving conviction.

In the Quebec case, Marc Cyr‑Langlois was stopped in July 2012 by two police officers, identified in the decision as Constables Boissonneault and Cousineau, while driving his vehicle. Cousineau arrested Cyr-Langlois around 12:35 a.m. The officers frisk-searched Cyr-Langlois, who was then taken to the police station.

At the station, at 1:08 a.m., Boissonneault gave Cyr-Langlois a first breathalyzer test, which showed 157 mg of alcohol in 100 ml of blood. During the statutory 15- to 20-minuite waiting period prior to the second test, Boissoneault was not in the room with Cyr-Langlois; Constable Cousineau was instead.

At 1:30 a.m., Constable Boissonneault administered the second breathalyzer test, which showed 148 mg of alcohol in 100 ml of blood. Both results were therefore over the legal limit, with a difference of less than 10 mg.

Cyr-Langlois argued in court that the test was not conducted properly because Boissoneault did not stay in the room during the time between each breathalyzer test. This fact created a reasonable doubt about the test result, according to Cyr-Langlois, because something may have happened to skew the test result while the officer was not in the room. For example, the act of burping may have theoretically increased the blood-alcohol reading of the second breathalyzer test, thus changing a reading to above the legal limit. This would create a “reasonable doubt” about the results.

The lower courts flip-flopped on the issue.

The summary conviction judge agreed that Cyr-Langlois had raised a “reasonable doubt” about the test results, and therefore found him not guilty. The Crown appealed to the Superior Court, which cancelled the not guilty verdict and ordered a new trial. The Court of Appeal ruled in favour of Cyr-Langlois, saying the not guilty verdict should stand.

The Supreme Court cancelled the not guilty verdict and ordered a new trial.

“In the case of improper operation of an instrument [such as a breathalyzer], while abstract evidence alone may sometimes meet the requirement of raising a reasonable doubt about the reliability of the results, it is more likely that evidence that relates more concretely to the facts in issue will be required,” Supreme Court of Canada Justice Richard Wagner wrote for the court majority in an 8-1 decision.

“The mere improper operation alleged by the accused did not in itself tend to show that the reliability of the results was in doubt. Without evidence that related more concretely to the facts in issue, the accused’s argument was in the realm of speculation and could not satisfy the reasonable doubt test.”