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Criminal - Impaired Driving (3). R. v. Rousselle
In R. v. Rousselle (SCC, 2025) the Supreme Court of Canada dismissed a defendant's impaired driving appeal, this brought against an NBCA appeal that "upheld the summary conviction appeal judge’s decision and confirmed the conviction", that brought against a successful Crown summary conviction appeal, and that brought against a trial acquittal of a charge [under CCC s.320.14(1)(b)] "with having a BAC equal to or exceeding 80 mg of alcohol in 100 mL of blood within two hours of ceasing to operate a motor vehicle."
Here the court considers the history and the current law of 'over 80' prosecutions:A. “80 and Over” Offence
[37] Since 1969, the Criminal Code has prohibited operating a conveyance with a BAC over 80 mg percent (St-Onge Lamoureux, at para. 5; Department of Justice, Legislative Background: reforms to the Transportation Provisions of the Criminal Code (Bill C-46) (2017) (“C-46 Backgrounder (2017)”), at p. 6; see, e.g., Criminal Code, s. 253(1)(b), as it appeared in 2017). Given the legal BAC threshold, the offence was historically called the “over 80” offence.
[38] In 2018, the Amending Act repealed the “over 80” offence and enacted a new offence under Part VIII.1 of the Criminal Code (C-46 Backgrounder (2019), at p. 23; C-46 Backgrounder (2017), at pp. 13-14; Jokinen and Keen, at p. 21). Pursuant to s. 320.14(1)(b), it is an offence for a person to have a BAC that is “equal to or exceeds” 80 mg percent within two hours after they have ceased to operate a conveyance:320.14 (1) Everyone commits an offence who
....
(b) subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood; Due to the lowered legal BAC threshold as compared to the historical “over 80” offence, this current offence is commonly known as the “80 and over” offence.
[39] Section 320.14(5) sets out an exception to the “80 and over” offence:(5) No person commits an offence under paragraph (1)(b) if
(a) they consumed alcohol after ceasing to operate the conveyance;
(b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of breath or blood; and
(c) their alcohol consumption is consistent with their blood alcohol concentration as determined in accordance with subsection 320.31(1) or (2) and with their having had, at the time when they were operating the conveyance, a blood alcohol concentration that was less than 80 mg of alcohol in 100 mL of blood. B. Proving Blood Alcohol Concentration Through Breath Samples
[40] In this section, we discuss the evidentiary scheme set out in Part VIII.1 for proving, among other impaired offences listed in that Part, “80 and over” offences. Throughout these reasons, we will refer to the scheme set out in ss. 320.31 to 320.34 as the “2018 evidentiary scheme”.
(1) Section 320.31(1): Presumption of Accurate Breath Alcohol Results
[41] The presumption of accuracy in s. 320.31(1) functions as an evidentiary shortcut for proving “80 and over” offences. The presumption allows the Crown to rely on the accused’s breath alcohol test results as “conclusive proof” of the accused’s BAC at the time that the tests were conducted. This relieves the Crown from having to lead expert evidence to prove the accuracy and reliability of breath test results in each impaired driving prosecution. If the results of the breath alcohol test are different, the Criminal Code allows the Crown to rely on the lowest of the results as conclusive proof of the accused’s BAC:320.31 (1) If samples of a person’s breath have been received into an approved instrument operated by a qualified technician, the results of the analyses of the samples are conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made if the results of the analyses are the same — or, if the results of the analyses are different, the lowest of the results is conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made .... [42] The presumption of accuracy stems from Parliament’s stated confidence in the accuracy and reliability of breath alcohol test results from an approved instrument:320.12 It is recognized and declared that
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(c) the analysis of a sample of a person’s breath by means of an approved instrument produces reliable and accurate readings of blood alcohol concentration; .... The declaratory statement in s. 320.12(c) aligns with this Court’s recognition in St-Onge Lamoureux of the scientific accuracy and reliability of the results from approved instruments (paras. 40 and 72; see also C-46 Backgrounder (2017), at p. 45; C-46 Backgrounder (2019), at p. 46).
[43] That said, Parliament’s confidence in the accuracy and reliability of breath alcohol analysis results is contingent on the approved instrument being operated in accordance with the ATC’s recommended procedures (C-46 Backgrounder (2017), at p. 22; C-46 Backgrounder (2019), at p. 45; see also Jokinen and Keen, at pp. 347-48; Kenkel, at p. 263). For this reason, before the Crown can benefit from the presumption, it must first prove that a series of operational procedures were followed:320.31 (1) ....
(a) before each sample was taken, the qualified technician conducted a system blank test the result of which is not more than 10 mg of alcohol in 100 mL of blood and a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst;
(b) there was an interval of at least 15 minutes between the times when the samples were taken; and
(c) the results of the analyses, rounded down to the nearest multiple of 10 mg, did not differ by more than 20 mg of alcohol in 100 mL of blood. [44] The preconditions in s. 320.31(1)(a) to (c) correspond with the ATC’s recommended procedures to ensure accurate results, as discussed above. For example, the precondition in s. 320.31(1)(a) requires the qualified technician to conduct a system blank test before each breath alcohol test, “the result of which is not more than” 10 mg percent. The precondition also requires the qualified technician to conduct “a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst”. Both of these requirements codify the ATC’s recommended margins of error for the system blank test and system calibration check (see Recommended Operational Procedures, at p. 4).
[45] In addition, the precondition in s. 320.31(1)(b), which requires two breath alcohol samples to be separated by “an interval of at least 15 minutes”, codifies the ATC’s recommended period of time that a qualified technician should wait between tests (see Jokinen and Keen, at p. 335; see also Cyr-Langlois; C-46 Backgrounder (2019), at p. 46). Similarly, the precondition in s. 320.31(1)(c), which requires the results of the breath alcohol test results (rounded down to the nearest multiple of 10 mg) to be within 20 mg percent of each other, reflects the ATC’s recommendation to re-test if two results differ by more than that margin (Recommended Operational Procedures, at p. 5).
[46] In sum, the preconditions set out in s. 320.31(1)(a) to (c) are derived from the operational procedures recommended by the ATC. Following these procedures gives rise to a conclusive presumption that the breath alcohol test results are accurate and reliable.
[47] The conclusive nature of the presumption of accuracy has implications for the standard of proof that attaches to the preconditions in s. 320.31(1). As this Court held in R. v. Egger, 1993 CanLII 98 (SCC), [1993] 2 S.C.R. 451, at pp. 474-75, when admission of evidence may “have a conclusive effect with respect to guilt, the criminal standard is applied”. If the presumption of accuracy is established, the accused will be unable to challenge the accuracy or reliability of the test results, and a finding of guilt will ordinarily follow. For this reason, the lower burden of proof on a balance of probabilities is not appropriate. Instead, the Crown must prove each precondition in s. 320.31(1) beyond a reasonable doubt (see also Jokinen and Keen, at pp. 331-32; Kenkel, at p. 264; C-46 Backgrounder (2017), at p. 45; C-46 Backgrounder (2019), at p. 45).
[48] While the presumption of accuracy functions as an evidentiary shortcut for proving “80 and over” offences, it is not itself an element of the offence. Failure to prove the statutory preconditions beyond a reasonable doubt means that the Crown cannot rely on the presumption to prove an accused’s BAC at the time of testing. However, there may be other avenues for the Crown to prove its case against the accused, depending on the evidence before the court (see Jokinen and Keen, at p. 348).
(2) Section 320.34: Disclosure of Information
[49] Section 320.34(1) of the Criminal Code requires the Crown to “disclose to the accused” information “sufficient to determine” whether the preconditions in s. 320.31(1) have been met. Namely, the Crown must disclose:320.34 (1) In proceedings in respect of an offence under section 320.14, the prosecutor shall disclose to the accused, with respect to any samples of breath that the accused provided under section 320.28, information sufficient to determine whether the conditions set out in paragraphs 320.31(1)(a) to (c) have been met, namely:
(a) the results of the system blank tests;
(b) the results of the system calibration checks;
(c) any error or exception messages produced by the approved instrument at the time the samples were taken;
(d) the results of the analysis of the accused’s breath samples; and
(e) a certificate of an analyst stating that the sample of an alcohol standard that is identified in the certificate is suitable for use with an approved instrument. [50] If an accused person seeks further disclosure, s. 320.34(2) provides that they may “apply to the court for a hearing” on that matter. Section 320.34(3) and (4) sets out the form, content and procedural requirements of this application.
(3) Sections 320.32 and 320.33: Relying on the Presumption of Accuracy at Trial
[51] As described above, s. 320.31(1)(a) to (c) sets out the preconditions to the presumption of accuracy. It is open to the Crown to seek to prove these preconditions by viva voce evidence at trial. Alternatively, documentary evidence — namely, the certificate of an analyst, certificate of a qualified technician, and the printout from an approved instrument — may satisfy the preconditions. Sections 320.32 and 320.33 permit these documents to be received in evidence for the truth of their contents without viva voce evidence.
[52] Specifically, s. 320.32(1) permits certificates of analysts, qualified medical practitioners, and qualified technicians to be admitted for the truth of “the facts alleged in the certificate” without evidence from the person who signed the certificate:320.32 (1) A certificate of an analyst, qualified medical practitioner or qualified technician made under this Part is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person who signed the certificate. [53] The procedure for admitting certificate evidence is set out in s. 320.32(2) to (5). Notably, the provisions employ the term “produce” to mean place into evidence at trial; this is distinct from the term “disclose”, which is utilized in the statutory disclosure obligation provision, s. 320.34, discussed above.
[54] While it will often be the Crown who is seeking to rely on certificate evidence in its case against the accused (see C-46 Backgrounder (2017), at p. 24; C-46 Backgrounder (2019), at p. 49), the wording in s. 320.32(2) to (5) is party-neutral. Under s. 320.32(2), before trial begins, a party seeking to “produce” the certificate must provide the other party with “reasonable notice” of its intent to produce the certificate, as well as a copy of the certificate. Under s. 320.32(3), the party “against whom the certificate is produced may apply” for leave to cross-examine the individual who signed the certificate. The application must be in writing and it must “set out the likely relevance of the proposed cross-examination with respect to the facts alleged in the certificate” (s. 320.32(4)).
[55] Section 320.33 stipulates that a printout from an approved instrument can also be admitted for the truth of its contents without viva voce evidence, provided that it is signed by a qualified technician who certifies it to be such a printout:320.33 A document that is printed out from an approved instrument and signed by a qualified technician who certifies it to be the printout produced by the approved instrument when it made an analysis of a sample of a person’s breath is evidence of the facts alleged in the document without proof of the signature or official character of the person who signed it. [56] Thus, ss. 320.32 and 320.33 function as statutory exceptions to the common law rule against the admissibility of hearsay evidence. Among other things, they offer a pathway for the Crown to establish the preconditions to the presumption of accuracy via documentary evidence. However, we hasten to add that ss. 320.32 and 320.33 may be used for other purposes; these reasons should not be read as limiting the potential uses of these provisions in prosecutions under Part VIII.1 of the Criminal Code. . R. v. Rousselle
In R. v. Rousselle (SCC, 2025) the Supreme Court of Canada dismissed a defendant's impaired driving appeal, this brought against an NBCA appeal that "upheld the summary conviction appeal judge’s decision and confirmed the conviction", that brought against a successful Crown summary conviction appeal, and that brought against a trial acquittal of a charge [under CCC s.320.14(1)(b)] "with having a BAC equal to or exceeding 80 mg of alcohol in 100 mL of blood within two hours of ceasing to operate a motor vehicle."
Here the court summarizes procedures for breath alcohol testing:III. Breath Alcohol Testing: How It Works and Operational Procedures
[12] Before we interpret s. 320.31(1)(a) and apply it to the facts of this case, we pause to summarize the technical and procedural aspects of breath alcohol testing — that is, how a breath analysis machine functions and the process followed to obtain a breath alcohol reading — as well as the statutory scheme for “80 and over” prosecutions.
[13] In so doing, we take notice of certain facts which are “beyond serious controversy” (R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at para. 65). In this instance, it is only by reference to that which is not in dispute that one can properly make sense of that which is: whether Parliament intended to permit the Crown to prove that an alcohol standard was certified by an analyst by means of the certificate of the qualified technician.
A. How Does an Approved Instrument Measure Blood Alcohol Concentration?
[14] The scientific basis for breath alcohol testing is well established (R. v. St-Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187, at paras. 34 and 40). The analysis of a breath sample to determine BAC is based on the principle that the quantity of alcohol in a person’s breath is proportional to the quantity of alcohol in a person’s blood. This is known as the blood to breath ratio. Thus, measuring breath concentration can establish whether a person’s BAC is equal to or exceeds the prescribed legal limit. A “breathalyzer”, literally a “breath” “analyzer”, applies this principle by receiving samples of a person’s breath and analyzing them to determine their BAC (see B. T. Hodgson, “The Validity of Evidential Breath Alcohol Testing” (2008), 41 Can. Soc. Forensic Sci. J. 83, at pp. 83-85; K. M. Dubowski, The Technology of Breath-Alcohol Analysis (1992), at pp. 2-5; A. W. Jones and J. M. Cowan, “Reflections on variability in the blood-breath ratio of ethanol and its importance when evidential breath-alcohol instruments are used in law enforcement” (2020), 5 Forensic Sciences Research 300).
[15] While the word “breathalyzer” has entered the common lexicon to describe any breath analysis instrument, it comes from Robert F. Borkenstein’s “Breathalyzer”, the commercial name for one of the earliest breath analysis instruments that could quantify alcohol concentration (see R. F. Borkenstein and H. W. Smith, “The Breathalyzer and its Applications” (1961), 2 Med. Sci. & L. 13, at p. 21). Since the “Breathalyzer” was introduced in 1954 for use in impaired driving prosecutions, numerous other breath analysis instruments have been developed and adopted into use by law enforcement. Although various instruments employ somewhat different technology, they all determine the same thing: how much alcohol is in a person’s blood.
[16] Parliament has granted authority to the Attorney General, under s. 320.39(c) of the Criminal Code, to designate certain “approved instruments” as suitable to receive and make an analysis of a sample of a person’s breath to determine their BAC for impaired driving prosecutions (K.-E. Harrison, Capacités affaiblies: principes et application (3rd ed. 2017), at p. 132). Presently, approved instruments are set out in the Approved Breath Analysis Instruments Order, SI/85-201. Approved instruments now in use are more technologically advanced than the original Breathalyzer. While the Breathalyzer relied on the operator to ensure the instrument was operating properly or to detect an error, current approved instruments will abort the testing process if a required procedure is not followed and they will record such errors. They also produce printed records of the test results and of any errors, rather than (in the case of earlier instruments) relying on the operator’s handwritten records (Hodgson, at p. 87; see, e.g., R. v. Gault, 2023 ONSC 2994, at paras. 40-52 (approved instrument recording a “deficient sample” caused by inadequate blow)).
[17] In these reasons, we use the term “approved instrument” to mean any breath analysis machine that may be used in a Criminal Code prosecution, including the Intox EC/IR II — an approved instrument under s. 2(r) of the Approved Breath Analysis Instruments Order — that analyzed Mr. Rousselle’s breath samples.
B. What Are the Operational Procedures for Testing Breath Samples?
(1) Alcohol Test Committee
[18] The current breath alcohol testing procedures in the Criminal Code were prepared by the Canadian Society of Forensic Science’s Alcohol Test Committee (“ATC”). As we explain in more detail below, in the Amending Act, Parliament incorporated ATC recommendations in the Criminal Code procedures for breath alcohol testing (Department of Justice, Backgrounder for former Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, as enacted (2019) (“C-46 Backgrounder (2019)”), at p. 45). Thus, it is useful to understand these procedures and their scientific basis before considering the statutory requirements in issue.
[19] The ATC is comprised of forensic alcohol scientists from across Canada. It advises the Minister of Justice and Attorney General on quality assurance and operational standards for breath alcohol testing, including the operation of approved instruments. The ATC and its predecessors have existed since 1967 when the Canadian Society of Forensic Science established a “Special Committee on Breath Testing” to study breath alcohol testing science, technology and law enforcement (Canadian Society of Forensic Science Alcohol Test Committee: Recommended Operational Procedures, April 20, 2023 (online), at p. 1). Parliament adopted the committee’s recommendations on equipment suitable for use in Criminal Code prosecutions when it enacted the “over 80” offence in 1969 (K. Jokinen and P. Keen, Impaired Driving and Other Criminal Code Driving Offences (2nd ed. 2023), at pp. 9-10).
[20] More recently, the ATC has become the Department of Justice’s “principal scientific advisor on matters related to breath testing” (Recommended Operational Procedures, at p. 1). The ATC has developed operating procedures for approved instruments to ensure “accurate and reliable results” when police administer breath alcohol tests in the field (i.e., outside of a controlled laboratory environment) (p. 4). By “accurate and reliable” the ATC does not mean that an approved instrument will never malfunction or produce an incorrect result. The ATC acknowledges the possibility of errors in the operation of an approved instrument. But, any error will be detectable if the operational procedures are followed (J. F. Kenkel, Impaired Driving in Canada (7th ed. 2025), at p. 263; Alcohol Test Committee, “Documentation Required for Assessing the Accuracy and Reliability of Approved Instrument Breath Alcohol Test Results” (2012), 45 Can. Soc. Forensic Sci. J. 101, at p. 102). Put another way, the ATC’s operational procedures ensure that a subject’s breath alcohol test results will not include an undetectable false high, which would lead to a wrongful conviction if relied on in an impaired driving prosecution (Jokinen and Keen, at p. 328).
(2) Those Involved in Breath Testing Procedures and What They Do
(a) Analyst
[21] For the purposes of breath alcohol testing, s. 320.11 of the Criminal Code states that an analyst is an individual designated by the Attorney General pursuant to s. 320.4(c) “to certify that an alcohol standard is suitable for use with an approved instrument”. As we will explain below, an alcohol standard is used to ensure that the approved instrument is properly calibrated. The analyst conducts a test to confirm whether an alcohol standard was manufactured with the correct proportion of alcohol in a gas or liquid solution. The analyst’s certification of an alcohol standard — essentially a “guarantee of quality” (Jokinen and Keen, at p. 341) — accompanies the batch or lot of alcohol standard when it is sent to the qualified technician (Royal Canadian Mounted Police and Alberta Breath Test Committee, Intox EC/IR II Resource Reading Material, December 2018 (online) (“Intox EC/IR II Manual”), at p. F-2). The qualified technician then uses the alcohol standard to conduct the system calibration check, which is a process that we will explain below.
[22] As the alcohol standard is certified before it is sent to the qualified technician, the analyst may well be located outside of the jurisdiction where the breath alcohol testing takes place. For example, the analysts who certified the alcohol standard in the Larocque appeal were located in British Columbia while the offence occurred in New Brunswick (A.R. (Larocque), vol. I, at pp. 99-100).
(b) Qualified Technician
[23] For the purposes of breath alcohol testing, s. 320.11 of the Criminal Code states that a qualified technician is an individual designated by the Attorney General pursuant to s. 320.4(a) as qualified “to operate an approved instrument”. This means that a qualified technician determines that the approved instrument is functioning properly and operates the approved instrument in order to test a person’s breath samples so as to measure alcohol concentration. In practice, most qualified technicians are police officers who have received training as to how to operate an approved instrument (Jokinen and Keen, at p. 338).
(3) Conducting a Breath Test: What Are the Steps and the Purpose(s) of Each Step?
[24] The ATC prescribes the following procedures for the qualified technician to follow to ensure an accurate breath alcohol test result.
(a) System Blank Check
[25] The system blank check, also called an air blank check, is the first test procedure that must be conducted prior to obtaining a person’s breath alcohol sample. The system blank check is intended to prevent the breath alcohol test from being contaminated by a prior test or the environment of the testing location. The approved instrument purges any alcohol remaining in it, tests the alcohol content of the ambient air, and sets a baseline that eliminates the effect of any ambient alcohol in the test results (R. v. Gubbins, 2018 SCC 44, [2018] 3 S.C.R. 35, at para. 4(a); Kenkel, at p. 271).
[26] The ATC prescribes that the system blank check must produce a result that is not more than 10 mg percent (Recommended Operational Procedures, at p. 4). If the result is more than 10 mg percent, called an “ambient fail”, the approved instrument will not allow the qualified technician to process a sample from the subject (Jokinen and Keen, at p. 339).
(b) System Calibration Check
[27] If the approved instrument passes the system blank check, the qualified technician will then conduct a system calibration check. This procedure ensures that the approved instrument is generating accurate readings by testing it using a known product: the alcohol standard (Gubbins, at para. 4(b); R. v. Ocampo, 2014 ONCJ 440, 68 M.V.R. (6th) 291, at para. 56; Jokinen and Keen, at p. 340). Alcohol “standard” means a particular proportion of alcohol in a solution, either a gas (called “dry gas” standards) or liquid (called “wet bath” standards). Alcohol standards are prepared by a manufacturer and certified for use with an approved instrument by an analyst before they are shipped to the qualified technician. As above, certification by an analyst is a factual statement; it means the solution meets the requirement of the alcohol standards that are suitable for use with an approved instrument (Jokinen and Keen, at p. 341).
[28] Approved instruments, including the Intox EC/IR II, can accept either dry gas or wet bath alcohol standards to conduct the system calibration check. But, as the intervening Attorney General of Ontario and Attorney General of Alberta noted, police services in certain jurisdictions across Canada tend to use one or the other standard. Ontario is a “wet bath” jurisdiction, whereas RCMP jurisdictions, including New Brunswick and Alberta, typically use dry gas alcohol standards (I.F. (Attorney General of Ontario), at para. 31; I.F. (Attorney General of Alberta), at para. 21).
[29] The ATC prescribes that the system calibration check is successful if the approved instrument gives a reading within 10% of the target value of the alcohol standard certified by an analyst (Recommended Operational Procedures, at p. 4). “Target value” is the result that an approved instrument should produce when it reads the alcohol standard sample, expressed in mg of alcohol per 100 mL of solution/gas (Jokinen and Keen, at p. 340). The approved instrument draws in a sample of alcohol-saturated vapour that is produced by the alcohol standard. The approved instrument then reads the vapour sample in the same way as it would a breath sample. If the approved instrument reads that the alcohol standard sample has a concentration that is within 10% (e.g., 10 mg of alcohol per 100 mL of solution/gas for target values equal to or exceeding 100 mg percent) of the target value, then the approved instrument is operating properly (Intox EC/IR II Manual, at p. C-10). If the approved instrument does not produce a result that is within 10% of the target value, the approved instrument will not allow the qualified technician to test the subject’s breath samples (Gubbins, at para. 4(b)).
[30] Wet bath alcohol standards generally have a concentration of 121 mg of alcohol (plus or minus 3 mg) in 100 mL of liquid solution. These standards are known as “100 milligram percent solutions” (Jokinen and Keen, at p. 341) because they have a target value of 100 mg percent, provided that the temperature of the alcohol standard is within a range of 33.8 to 34.2˚C (Recommended Operational Procedures, at p. 4). Therefore, if the approved instrument reads a wet bath alcohol standard sample and produces a result of between 90 and 110 mg percent, the approved instrument is functioning properly (Intox EC/IR II Manual, at p. C-10).
[31] By contrast, the target value of a dry gas alcohol standard can fluctuate, even at the correct testing temperature. While dry gas alcohol standards generally have a base target value of 82 mg percent at sea level, the precise concentration of alcohol in the gas solution is subject to changes in barometric pressure. Prior to conducting a system calibration check with a gas alcohol standard, the approved instrument or an accessory device (depending on the particular approved instrument) will establish the corrected target value at the testing location at that time (Recommended Operational Procedures, at p. 4; Intox EC/IR II Manual, at p. C-10). For example, if the corrected target value is 80 mg percent due to a decrease in barometric pressure (lower pressure results in lower alcohol concentration), the approved instrument is functioning properly if it produces a system calibration check result of 72 to 88 mg percent.
[32] Each unit (e.g., a cylinder of dry gas) of an alcohol standard has both an expiry date and a limited number of uses. In the same way that a failed system calibration check will shut down the approved instrument, if an alcohol standard is used beyond its expiry date or number of tests, the approved instrument will not allow the qualified technician to conduct the test (Intox EC/IR II Manual, at pp. K-3 and K-4).
(c) Two or More Breath Samples
[33] If the system blank check and the system calibration check each produce the correct results, the qualified technician can proceed to obtain a breath sample from a person to measure their BAC. Then, prior to obtaining another sample, the qualified technician must repeat the entire testing process, beginning with the system blank check (Gubbins, at para. 4(f)).
[34] The ATC recommends that the qualified technician wait at least 15 minutes before starting or restarting the procedure to obtain a breath sample. The 15-minute observation period ensures that the sample is not distorted by a “digestive issue that had introduced alcohol into [the subject’s] mouth” (Jokinen and Keen, at p. 335; see also R. v. Cyr-Langlois, 2018 SCC 54, [2018] 3 S.C.R. 456; C-46 Backgrounder (2019), at p. 46).
[35] To further ensure accurate breath alcohol test results, the ATC also recommends that the qualified technician re-test if two results differ by more than 20 mg percent. The qualified technician will continue to conduct the entire testing process until the approved instrument has produced two results that are within 20 mg percent of each other (Recommended Operational Procedures, at p. 5).
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