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Criminal - Impaired Driving (4). R. v. Larocque
In R. v. Larocque (SCC, 2025) the Supreme Court of Canada allowed a defendant's criminal appeal, here brought against an NBCA decision that supported a conviction for "having a BAC that was equal to or over 80 mg percent within two hours of operating a motor vehicle, contrary to s. 320.14(1)(b) of the Criminal Code".
Here the court considers "whether the Crown must prove the target value of an alcohol standard as part of the precondition to the presumption of accuracy in s. 320.31(1)(a)":[1] Like its companion case, R. v. Rousselle, 2025 SCC 35, this appeal relates to the interpretation of s. 320.31(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46. The provision forms part of the evidentiary scheme for proving blood alcohol concentration (“BAC”) for purposes of impaired operation offences under s. 320.14(1) of the Criminal Code.
[2] As in Rousselle, the appellant Mr. Larocque argues that the New Brunswick Court of Appeal erred in interpreting what the Crown must prove to satisfy the precondition to the presumption of accurate breath test results provided for in s. 320.31(1) (“presumption of accuracy”). Mr. Larocque joins Mr. Rousselle in arguing that proof that an alcohol standard used in the system calibration check is certified by an analyst must come from the analyst’s own evidence, either by certificate or viva voce. We adopt our reasons in Rousselle which fully dealt with that issue.
[3] Mr. Larocque also appeals the Court of Appeal’s holding in his case that s. 320.31(1)(a) does not require the Crown to prove the target value of an alcohol standard that is certified by an analyst. These reasons address this related, but distinct, issue.
[4] In light of the principles articulated in Rousselle and the reasons that follow, we conclude that while the Crown must disclose the target value to the accused as required by s. 320.34(1)(b), the Crown does not need to prove the target value at trial to rely on the presumption of accuracy. Parliament did not intend to make the target value itself a precondition, only the fact that the qualified technician conducted a system calibration check, the result of which was within 10% of the target value. Requiring the Crown to prove the target value would amount to reading in an additional technical requirement in s. 320.31(1)(a) in a manner that is contrary to Parliament’s intention as regards this precondition to the presumption of accuracy.
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[7] The holding in Rousselle applies to all 80 and over cases; it provides one way to satisfy the requirements of s. 320.31(1)(a). However, the statutory interpretation issue in Rousselle addressing whether a qualified technician can give evidence as to the fact that the alcohol standard was “certified by an analyst” has no bearing on the disposition of this appeal. Unlike Rousselle, the Crown in this case produced and relied on two certificates from two analysts and the certificate of the qualified technician to satisfy the preconditions to the presumption of accuracy.
[8] The sole issue in this appeal is whether the Crown must prove the target value of an alcohol standard as part of the precondition to the presumption of accuracy in s. 320.31(1)(a):(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; ....
[21] In determining whether the Crown must prove the target value as part of the precondition in s. 320.31(1)(a), we rely on our analysis set out in Rousselle, including: the summary of breath alcohol testing procedures, the statutory scheme for 80 and over prosecutions, and the principles of statutory interpretation. Further, as in Rousselle, we have taken notice of certain undisputed facts that are relevant background to understanding the statutory interpretation question at issue in this appeal.
A. The Target Value Must Be Disclosed Under Section 320.34(1)(b)
[22] We begin by addressing whether the Crown must disclose the target value as of the time of testing under s. 320.34(1)(b). This question is directly related to the issue on appeal, and the Court has the benefit of submissions from the parties and reasons from the New Brunswick Court of Appeal.
[23] We agree with the interveners, the Attorneys General of Alberta and British Columbia, that the target value falls within the Crown’s mandatory disclosure obligation in s. 320.34(1)(b) of the Criminal Code. Crown counsel conceded this point at the hearing.
[24] The purpose of the Crown’s disclosure obligations in s. 320.34(1) is to ensure that the accused has “information sufficient to determine whether the conditions set out in paragraphs 320.31(1)(a) to (c) have been met”. Section 320.34(1)(b) requires the Crown to disclose the “results of the system calibration checks” to the accused.
[25] One can readily understand why Parliament requires the Crown to disclose the results of the system calibration check when the evidentiary scheme is considered as a whole. The results of the system calibration checks are necessary to enable the accused to verify the proper operation of the approved instrument. It may also, depending on the circumstances of the case, provide a basis for the accused to raise a reasonable doubt as to whether the Crown has proven all the preconditions to the presumption of accuracy. For example, if the Crown proceeds by producing the certificate of the qualified technician, the results of the system calibration check may form the basis for arguing the likely relevance of cross-examining the qualified technician’s assertion that a system calibration was conducted, the result of which was within 10% of the target value under s. 320.32(3).
[26] However, limiting disclosure to the results of the system calibration check would only partly fulfill Parliament’s intended purpose for the disclosure obligation in s. 320.34(1)(b). Section 320.34(1)(b) also requires the target value of an alcohol standard to be disclosed.
[27] The target value is the “set” number against which the accused can compare the “variable” system calibration check result (K. Jokinen and P. Keen, Impaired Driving and Other Criminal Code Driving Offences (2nd ed. 2023), at p. 341). Unless the target value at the time of testing is known, one cannot understand the significance of the result of a system calibration check (see R. v. Vigneault, 2024 QCCA 793, at para. 21). Unlike the system blank check, where the expected result is set out in the Criminal Code itself — the approved instrument passes if it produces a result under 10 mg percent — the system calibration check asks only whether the result is “within 10% of the target value”. In other words, the precondition is not seeking one specific alcohol concentration, but instead a factual determination of whether the approved instrument produces a result within the margins dictated by the target value. For example, if the accused does not know that the target value at the time of testing was 100 mg percent, knowing that a system calibration check produced a result of 97 mg percent — which is within 10% of the target value — is not useful.
[28] Therefore, the Court of Appeal erred in holding that s. 320.34(1)(b) requires the Crown to disclose the results of the system calibration checks but “does not require the prosecution to disclose any information whatsoever about the target value of the alcohol standard used” (para. 49). In our view, the target value at the time of testing is inherently tied to the results of the system calibration check, and must be disclosed in addition to those results.
[29] We note, as a related point, that the target value can be disclosed to the accused through several different sources depending on the type of alcohol standard (dry gas or wet bath) used in the system calibration check. Section 320.34(1)(b) imposes an obligation on the Crown to disclose the results of the system calibration check, including the target value, but does not specify how disclosure is to be effected. Unlike, for example, s. 320.34(1)(e), which specifically requires disclosure of “a certificate of an analyst”, the Crown does not need to disclose a particular document to comply with its obligation under s. 320.34(1)(b). To that end, the target value does not necessarily need to come from the certificate of the analyst.
[30] For dry gas alcohol standards, the qualified technician has direct knowledge of the corrected target value, which is based on barometric pressure at the time and place of testing. The baseline sea-level target value for a dry gas alcohol standard (82 mg percent) is normally printed on the gas cylinder used in the system calibration check (see, e.g., R. v. Kelly, 2023 NSPC 19, at para. 20; R. v. Cardwell, 2022 BCPC 308, at para. 14), and would be known only to the analyst who certified the cylinder. However, the target value that is relevant to the system calibration check — the corrected target value — is determined by the approved instrument at the testing location. Therefore, it is the qualified technician who can produce the corrected target value in their certificate. The analyst is not in a position to know the corrected target value for a particular system calibration check. The corrected target value may also appear, at least for the Intox EC/IR II, alongside the results of the system calibration checks on the approved instrument printout (R. v. Underhill, 2020 NBPC 3, 61 M.V.R. (7th) 31, at para. 44; see also Arkansas Department of Health, Intoximeter EC/IR II: Senior Operator Training Manual (2023), at p. 4-1).
[31] The target value for a wet bath alcohol standard is a constant 100 mg percent (Jokinen and Keen, at p. 340). While it will be known to the analyst who certifies that the alcohol standard is suitable for use, the qualified technician is also competent, by virtue of the qualified technician’s training in this area, to assert that the target value for a wet bath alcohol standard is 100 mg percent (see, e.g., R. v. Pelaia, 2019 ONCJ 676, 58 M.V.R. (7th) 338, at para. 53; R. v. Lafontaine, 2020 QCCQ 3575, at para. 23; R. v. Le, 2025 ONCJ 86, 572 C.R.R. (2d) 353, at para. 44; R. v. Hepfner, 2022 ONSC 6064, at para. 69).
[32] We also agree with the Court of Appeal that the text of s. 320.31(1)(a) indicates Parliament did not intend that the target value would be something known only to the analyst. The English and French versions of a bilingual statute are equally authoritative; the shared meaning of a provision governs (R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390, at para. 53). The English text of s. 320.31(1)(a) states “the target value of an alcohol standard that is certified by an analyst”. However, the French text, which states “la valeur cible de l’alcool type certifié par un analyste”, is clear that target value is not linked to the analyst’s knowledge of an alcohol standard’s suitability for use. “[V]aleur cible” (feminine noun) is not grammatically linked to “alcool type” (masculine noun), and, “certifié” is singular, which means it does not apply to both the target value and the alcohol standard (C.A. reasons, at para. 50). This interpretation makes sense viewed in light of our discussion above. It cannot have been Parliament’s intention to permit only the analyst to disclose something that the analyst does not know, in the case of a dry gas corrected target value, or something that is known to both the analyst and the qualified technician, in the case of a wet bath target value.
B. Proof of the Target Value Is Not a Precondition to the Presumption of Accuracy
[33] While the Crown must disclose the target value as part of its obligation under s. 320.34(1)(b) to disclose the results of the system calibration checks, we disagree with Mr. Larocque that the Crown must prove the target value at the time of testing in order to rely on the presumption of accuracy in s. 320.31(1). Parliament did not intend to make the target value itself a statutory precondition. Instead, s. 320.31(1)(a) requires proof that the qualified technician obtained a result that was within 10% of the target value when the qualified technician conducted the system calibration check.
[34] Interpreting s. 320.31(1)(a) as requiring proof of the target value at the time of testing is inconsistent with the purpose of the An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other acts, S.C. 2018, c. 21. We agree with the Crown that proving the target value is an additional technical requirement that is not in line with Parliament’s objective to simplify and streamline 80 and over prosecutions (see Rousselle, at paras. 102-5; R. v. Wolfe, 2024 SCC 34, at para. 78).
[35] Mr. Larocque’s interpretation is also inconsistent with the text and the context of s. 320.31(1)(a). The proposed interpretation would transform the data points in s. 320.31(1)(a) — the results of the system calibration check and the numerical target value at the time of testing — into preconditions themselves. Mr. Larocque submits there is support for his view in Vigneault, where the Quebec Court of Appeal held that affirmation of the target value itself is “not an element of picayune detail”, but rather essential to establishing the accuracy of the system calibration check (paras. 25-26).
[36] We agree with the Quebec Court of Appeal in Vigneault to this extent: the target value is essential to understanding the results of the system calibration check. As discussed above, this is why the target value is to be disclosed under s. 320.34(1)(b). However, it misapprehends Parliament’s intention to treat this as a precondition for s. 320.31(1)(a).
[37] The presumption of accuracy is based on the scientific consensus that when specific procedures are followed, a person’s breath alcohol test results accurately reflect their BAC at the time of testing (see s. 320.12). For this reason, s. 320.31(1)(a) refers to two procedures that the qualified technician must perform before obtaining a breath alcohol sample: the system blank check and the system calibration check. In regard to the system calibration check portion of s. 320.31(1)(a), Parliament requires that the Crown prove that the qualified technician conducted the check according to the specific procedures set by the Canadian Society of Forensic Science’s Alcohol Test Committee. Parliament has not required that the Crown prove the actual results of the system calibration check or the target value. While those data points must be disclosed, proving them at trial is not a precondition to the presumption of accuracy.
[38] As discussed in Rousselle, the relationship between the precondition to the presumption of accuracy in s. 320.31(1)(a) and s. 320.32 is also instructive. Under s. 320.32(1), the certificate of the qualified technician is deemed admissible for the truth of its contents. Therefore, if the qualified technician states that the system calibration check produced a result that was within 10% of the target value, the Crown has proven this s. 320.31(1)(a) precondition. The accused may apply to cross-examine the qualified technician on the certificate under s. 320.32(3) if the disclosure — which includes the results of the system calibration check and the target value at the time of testing — shows that the system calibration check was not performed in accordance with the Criminal Code (e.g., the result was not within 10% of the target value, or the printout shows an error occurred during the system calibration check, etc.).
[39] Therefore, we reject Mr. Larocque’s arguments that s. 320.31(1)(a) should be interpreted strictly to preserve the rights of an accused person. There is no ambiguity in what the Crown must establish to prove the precondition to the presumption of accuracy in s. 320.31(1)(a). The Crown may choose to introduce the underlying data from the entire breath alcohol testing process into evidence. However, as a matter of statutory interpretation, the Criminal Code does not require that evidence to be introduced in order to rely on the presumption of accuracy. Where the Crown has proven the preconditions to the presumption of accuracy, a finding of guilt will ordinarily follow, as Parliament intended. . 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 the case result:[1] This appeal relates to the interpretation of s. 320.31(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46. This provision forms part of the evidentiary scheme for proving blood alcohol concentration (“BAC”) for purposes of prosecuting impaired operation offences under s. 320.14(1) of the Criminal Code.
[2] Section 320.31(1) establishes a “presumption of accuracy” which allows the Crown to rely on a person’s breath alcohol test results as “conclusive proof” of their BAC at the time the breath tests were conducted. In order to benefit from this presumption, the Crown must prove beyond a reasonable doubt a series of preconditions set out in s. 320.31(1)(a) to (c). Notably, as part of the precondition in s. 320.31(1)(a), there must be 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”.
[3] The interpretation of s. 320.31(1)(a) has been the subject of significant judicial debate since Parliament amended the evidentiary scheme in 2018 (see An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, S.C. 2018, c. 21, referred to throughout as the “Amending Act” or “Bill C-46”). Trial and appellate courts across Canada are divided on what the Crown must prove in order to rely on the presumption of accuracy, and how the Crown can meet its onus.
[4] In this case, the Crown seeks to rely on the presumption of accuracy to prove that Mr. Rousselle’s BAC was equal to or over 80 mg of alcohol in 100 mL of blood (“mg percent”) within two hours of ceasing to operate a conveyance, contrary to s. 320.14(1)(b) of the Criminal Code (commonly known as an “80 and over” offence). The issue is whether the Crown has proven all preconditions to the presumption, including the requirement that the alcohol standard be “certified by an analyst”. At trial, the Crown did not adduce evidence, whether by certificate or viva voce testimony, from the analyst who certified the alcohol standard used in the breath testing. Instead, the Crown opted to produce and rely on a certificate of the qualified technician, which contained an assertion that the alcohol standard was certified by an analyst.
[5] It is undisputed that previous iterations of the evidentiary scheme permitted the qualified technician to give evidence on whether an alcohol standard was suitable for use, in satisfaction of a precondition to the presumption of accuracy. The issue at the core of this appeal is to what extent, if at all, this evidentiary rule was carried forward into the 2018 evidentiary scheme by the Amending Act, such that a qualified technician can give evidence as to whether an alcohol standard was “certified by an analyst”.
[6] For the reasons that follow, we would dismiss the appeal. The text, purpose and context of the 2018 evidentiary scheme, together with the legislative evolution of the scheme, lead us to conclude that Parliament intended to maintain the scope of the evidence a qualified technician may give. Consequently, s. 320.31(1)(a) does not preclude the Crown from proving that the alcohol standard used in the system calibration check is “certified by an analyst” through the evidence of the qualified technician, either by certificate or viva voce testimony. The Crown is not required to produce evidence from the analyst, either by certificate or viva voce testimony, to prove this fact. At paras 80-144 the court walks through it's statutory interpretation assessment on this issue.C. Conclusion on the Interpretation of Section 320.31(1)(a)
[141] In conclusion, we disagree with Mr. Rousselle’s submission that the precondition in s. 320.31(1)(a) is a “significant change” from its preceding iterations. When Parliament enacted s. 320.32(1)(a), it intended to preserve the qualified technician’s ability to provide hearsay evidence as to the suitability of an alcohol standard in lieu of evidence from the analyst. None of the changes that Mr. Rousselle identified, including differences in the text and structure of ss. 320.31(1) and 320.32(1), suggest that Parliament intended to depart from this evidentiary rule.
[142] We note that Mr. Rousselle asks the Court to construe s. 320.31(1)(a) strictly so as to require the Crown to adduce evidence from both the qualified technician and the analyst in every case (A.F., at para. 52). Pursuant to Bell ExpressVu, other principles of interpretation, such as the strict construction of penal statutes, “only receive application where there is ambiguity” (para. 28). As explained above, there is no ambiguity in the meaning of “an alcohol standard that is certified by an analyst”. We would therefore decline Mr. Rousselle’s request to apply this doctrine of strict construction.
[143] In addition, as there is no constitutional challenge before us, the broader implications of the evidentiary scheme on an accused’s right to make full answer and defence are properly left for another day. This appeal raises only a question of statutory interpretation. While recourse to the Canadian Charter of Rights and Freedoms or division of powers doctrines may be necessary to resolve ambiguities in the modern approach to statutory interpretation, courts must be careful not to use constitutional principles to “create ambiguity where none exists” (R. v. Clarke, 2014 SCC 28, [2014] 1 S.C.R. 612, at para. 1). Questions of statutory interpretation must not become de facto constitutional questions. “This Court does not lightly wade into constitutional disputes that are unnecessary to resolve the appeal” (Telus Communications, at para. 82).
[144] Accordingly, the Crown is entitled to rely on the evidence of the qualified technician to prove that an alcohol standard was certified by an analyst, as required by the precondition in s. 320.31(1)(a). It is unnecessary for the Crown to call on the analyst to give evidence as to this fact, either by certificate or viva voce; requiring the Crown to do so would amount to reading in a technical requirement that is inconsistent with the purpose, text, and context of s. 320.31(1)(a).
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[147] For all these reasons, the Crown may rely on evidence from the qualified technician to prove that the alcohol standard used in the system calibration check was certified by an analyst as suitable for use with an approved instrument.
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