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Criminal - Impaired Driving (5). R. v. Maniatis
In R. v. Maniatis (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, here against a successful summary conviction appeal, and that against an acquittal for a charge of "impaired operation under s. 320.14 of the Criminal Code".
Here the court extensively considered an interesting impaired driving 'presumption of operation' issue, including it's history and Charter treatment:[4] This appeal involves the interpretation of s. 320.35 [SS: 'Offences Relating to Conveyances - Presumption of operation'], which provides that if an accused is in the driver’s seat of a motor vehicle, they are presumed to have been operating the vehicle unless they establish that they did not occupy the driver’s seat for the purpose of setting the vehicle in motion. The interpretive question is: can the court presume that an accused was operating a vehicle if that vehicle is in fact inoperable and presents no realistic risk of danger?
[5] I would answer this question in the affirmative and dismiss the appeal. The appellant was found in the driver’s seat of a motor vehicle, and absent proof that he did not occupy that seat for the purpose of setting the vehicle in motion, the presumption applied, regardless of whether the vehicle was inoperable or posed no realistic risk of danger.
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D. Legislative scheme
1. Impaired operation
[10] The appellant was charged with two counts of impaired operation under ss. 320.14(1)(a) and (b) of the Criminal Code. Section 320.14(1)(a) makes it an offence to operate a conveyance while impaired. Section 320.14(1)(b) makes it an offence to have a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol per 100 ml of blood, within two hours after ceasing to operate a conveyance.
[11] “Conveyance” is defined in s. 320.11 as including a “motor vehicle”. “Operate” is also defined in s. 320.11 as meaning, “in respect of a motor vehicle, to drive it or to have care or control of it”.
[12] Here, given that the trial judge had a reasonable doubt about whether the appellant was driving the motor vehicle prior to the accident, we are concerned solely with the “care or control” aspect of operation.
[13] It is not immediately obvious what it means to have “care or control” of a motor vehicle, other than it must mean something other than driving. Parliament first created the offence of having care or control of a motor vehicle while intoxicated in 1925: An Act to amend the Criminal Code, S.C. 1925, c. 38, s. 5. Parliament’s objective in creating this offence was to prevent a risk of danger to public safety that inherently arises from the “mere ‘combination of alcohol and automobile’”: R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157, at para. 40, quoting Saunders. v. The Queen, 1967 CanLII 56 (SCC), [1967] S.C.R. 284, at p. 290.[1]
[14] For this reason, the Supreme Court has held that a “realistic risk of danger” is an essential element of care or control: Boudreault, at para. 33. Parliament only intended to criminalize conduct that creates a “realistic risk of danger”, and conduct that presents no such risk accordingly falls outside the ambit of the offence: Boudreault, at paras. 32, 40; see also The Queen v. Toews, 1985 CanLII 46 (SCC), [1985] 2 S.C.R. 119, at p. 126; R. v. Penno, 1990 CanLII 88 (SCC), [1990] 2 S.C.R. 865, at p. 877.
[15] By contrast, an intention to set the vehicle in motion is not an essential element of the offence: Boudreault, at para. 36; Ford v. The Queen, 1982 CanLII 16 (SCC), [1982] 1 S.C.R. 231, at pp. 248-249. An impaired individual who does not have an intention to set the vehicle in motion will not necessarily escape conviction. This is because such an individual may nevertheless present a realistic risk of danger in at least three ways. First, an impaired individual who does not initially intend to drive may change their mind. Second, an impaired individual may set the vehicle in motion by accident. Third, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property: Boudreault, at paras. 41-42.
[16] An example of this third scenario can be found in R. v. Vansickle, [1988] O.J. No. 2935 (Dist. Ct.), aff’d [1990] O.J. No. 3235 (C.A.). In that case, the accused was found impaired while in the driver’s seat of a stationary vehicle. The vehicle was straddling the centre lane of a highway during a snowstorm while it was dark out. The vehicle was damaged and immobile under its own power, and so the accused and his companion decided to wait out the storm inside the car by listening to music and drinking beer. The court concluded that this scenario created a situation of danger, even though the vehicle was immobile. For example, the accused could accidentally turn off the headlights, leaving the car completely unobservable to other drivers while in the middle of a highway during a snowstorm.
[17] To summarize, having care or control of a vehicle requires a realistic risk of danger, but a realistic risk of danger can arise even where a vehicle is “stationary or inoperable” and the accused has no intention of putting it in motion: Boudreault, at paras. 33, 41-42.
2. The presumption of operation set out in s. 320.35
[18] This appeal is about the interpretation of the presumption of operation found in s. 320.35. To assist in this interpretation, I (a) set out the legislative history and purpose of the presumption; (b) summarize the basis on which the presumption has been upheld as constitutional; and (c) discuss how it has been interpreted by this court and lower courts.
a. Legislative history and purpose
[19] The creation of the care or control offence in 1925 caused some problems. In particular, the fact that the accused was often highly intoxicated led some judges to enter acquittals on the basis that the accused was incapable of exercising care or control: see R. v. Whyte, 1988 CanLII 47 (SCC), [1988] 2 S.C.R. 3, at pp. 23-24, referring to Rex v. Butler, 1939 CanLII 214 (AB SCAD), [1939] 4 D.L.R. 592 (Alta. C.A); Forbes v. The King, 1943 CanLII 292 (ON HCJ), [1943] 1 D.L.R. 683 (Ont. Co. Ct.); Rex v. Armstrong, 1943 CanLII 302 (ON HCJ), [1944] 1 D.L.R. 233 (Ont. Co. Ct.).
[20] In response to this problem, in 1947, Parliament enacted the first version of the presumption now found in s. 320.35 of the Criminal Code: An Act to amend the Criminal Code S.C. 1947, c. 55, s. 10; R. v. Whyte, at pp. 24-25. Today, s. 320.35 reads as follows:In proceedings in respect of an offence under section 320.14 or 320.15, if it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a conveyance, the accused is presumed to have been operating the conveyance unless they establish that they did not occupy that seat or position for the purpose of setting the conveyance in motion. [21] Put simply, where an accused is found to be in the driver’s seat, they are presumed to have been operating the motor vehicle unless they can establish that they were in the driver’s seat for some other purpose, for example to keep warm, wait out the storm, or “sleep it off”.
[22] The presumption is one way the Crown can prove that the accused was operating a motor vehicle, but it is not the only way. Where the presumption is rebutted or not available on the evidence, the Crown can rely on actual or de facto care or control and prove the elements of the offence in the ordinary way: R. v. Smits, 2012 ONCA 524, 294 O.A.C. 355, at paras. 47-49.
[23] The purpose of the presumption when it was first introduced was said to be to “clarify the content of the offence and make it difficult for an accused to avoid conviction for the care or control offence on the ground that he or she was too impaired to assume control of the vehicle.”: Whyte, at pp. 24-25.
[24] During the debates in the House of Commons, then Minister of Justice James Lorimer Ilsley made the following statements about the purpose of the presumption:Before this amendment, if [an accused’s] state of intoxication were sufficiently advanced the courts in many of the provinces held that he did not have control of the motor vehicle. It is no longer open to an accused person to defend himself on those grounds. The early words in this proviso take that defence away from him. But they leave a defence to a person who, having got into the car for the purpose of setting it in motion, goes to sleep.
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If persons accused of driving a car while intoxicated can go into a court and say, “I was too drunk to be guilty,” it shocks the public; indeed it shocks us all, I believe.
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It should not be open to him to say “I was too drunk to be said to have the car under my control even though I was sitting behind the wheel.” It should not be open to him to be able to say that.
(Debates of the House of Commons, 3rd Sess., 20th Parl., Vol. VI, July 3, 1947, at pp. 5048-49) [25] The presumption was enacted in response to this problem with proving the mental element of the offence. As the Supreme Court put it in Whyte, at p. 26:On the one hand, it was repugnant to theories of criminal liability that a person could be convicted of an absolute liability crime, with no possibility of a defence based on the mental state of the accused. On the other hand, as the Minister of Justice commented, it is shocking to hear that an accused could be acquitted of an offence for which consumption of alcohol is a required element, because he was too intoxicated to be guilty. The presumption was added to resolve the problems caused by both of these alternatives. Parliament wished to discourage intoxicated people from even placing themselves in a position where they could set a vehicle in motion, while at the same time providing a way for a person to avoid liability when there was a reason for entering the vehicle other than to set it in motion. [Emphasis added.] [26] Though the wording of the presumption has changed somewhat over the years, the presumption in s. 320.35 is substantively the same as the original such that these statements of purpose apply equally to the current version.
b. Constitutionality
[27] In Whyte, the Supreme Court held that the presumption (then set out in s. 237(1)(a)) infringed s. 11(d) of the Charter, but was justified under s. 1.[2]
[28] Section 11(d) of the Charter guarantees the right to be presumed innocent until proven guilty. The presumption of innocence requires the trier of fact to be convinced beyond a reasonable doubt of each essential element of an offence before convicting. Accordingly, a provision that permits conviction in spite of a reasonable doubt about an essential element of an offence violates the presumption of innocence: Whyte, at p. 16, referring to R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636, at p. 656.
[29] The presumption under s. 320.35 requires the trier of fact to presume an essential element of the offence notwithstanding a reasonable doubt. A person can be in the driver’s seat without an intention to assume care or control – for example, to take shelter from poor weather, or to sleep. Therefore, the Supreme Court held that it infringed s. 11(d) of the Charter.
[30] However, the Supreme Court determined that the presumption was justified under s. 1. The presumption, along with related sections, is aimed at addressing the pressing social problem of impaired operation: Whyte, at pp. 20-21. There is “plainly” a rational connection between the proved fact (occupation of the driver’ seat) and the fact to be presumed (care or control) given that “[t]he driver’s seat is designed to give the occupant access to all the controls of the car, to be able to operate it.”: pp. 21-22. The presumption also impairs the right as little as possible, because, viewed in the context of the legislative history discussed above, the presumption “represents a restrained parliamentary response to a pressing social problem.”: at p. 26-27. Finally, the court held that the presumption strikes a proportionate balance. Although the presumption infringes s. 11(d), it also “in effect, affords a defence to an accused which could not otherwise be made available”, because intention is not a required element of the offence: at p. 27.
c. Interpretation in previous cases
[31] This court interpreted the presumption that is now found in s. 320.35 in R. v. Hatfield (1997), 1997 CanLII 2938 (ON CA), 33 O.R. (3d) 350 (C.A.).[3] In Hatfield, the accused was found sitting in the fully-reclined driver’s seat of a parked car. He said he had been drinking at a restaurant and, after driving for a short distance, decided he was not fit to drive and pulled into a parking lot to sleep it off. He argued that the presumption was rebutted because at the time the police officers found him in his car, he no longer intended to put the vehicle in motion. This court disagreed and held that “where an intoxicated person is discovered occupying the driver’s seat of a vehicle, the presumption will apply unless the person can demonstrate that his or her occupancy began without the purpose of setting the vehicle in motion.”: at p. 354.
[32] Hatfield did not decide the interpretive issue in this appeal; that is, whether evidence that a vehicle is inoperable and no longer poses a realistic risk of danger can rebut the presumption in s. 320.35. Many lower courts have considered the issue and have come to differing conclusions.
[33] A number of cases have held that inoperability and/or the absence of a realistic risk of danger can rebut the presumption: see e.g., R. v. Brienza, 2019 ONSC 5402, 381 C.C.C. (3d) 414, at para. 28; R. v. Coomansingh, 2014 ONCJ 560, at para. 35; R. v. Lanno, 2014 ONCJ 655, at paras. 28; R. v. Lu, 2013 ONCJ 73, at paras. 30-31; R. v. Rule, 2015 ONCJ 253, at paras. 54-56. There is also a line of cases reaching the opposite conclusion: see e.g., R. v. Smith, 2004 CanLII 34316 (ON SC), [2004] O.T.C. 26 (S.C.), at para. 25; R. v. Maslek, 2004 CanLII 6228 (ON SC), [2004] O.T.C. 710 (S.C.), at paras. 9-10; R. v. Ferguson (2005), 2005 CanLII 1060 (ON SC), 15 M.V.R. (5th) 74 (Ont. S.C.) at paras. 12-13; R. v. Danji, 2005 ONCJ 70, 16 M.V.R. (5th) 1, at para. 36.
[34] Other provincial appellate court decisions support this second line of authority. In R. v. Burbella, 2002 MBCA 106, 166 Man. R. (2d) 198, the Court of Appeal of Manitoba held that “[t]he presence or absence of danger will have no effect when the statutory presumption applies and is not rebutted.”: at para. 16. And, in R. v. MacAulay, 2002 PESCAD 24, 218 Nfld. & P.E.I.R. 312, the Appeal Division of the Prince Edward Island Supreme Court held that the fact that the accused did not have keys or any means of actually starting his car did not rebut the presumption because “[i]t is the purpose of the occupant, not his or her means or ability, that Parliament chose to address in [the presumption].”: at para. 22. At paras 37-49 the court walks through a statutory interpretation exercise regarding CCC s.320.35, concluding:[50] As I have explained, the trial judge erred in law when he concluded that the presumption under s. 320.35 could be rebutted by evidence that the appellant’s vehicle was inoperable and posed no realistic risk of danger. I agree with the summary conviction appeal judge that the presumption may only be rebutted by proof that the appellant did not enter the driver’s seat for the purpose of setting the vehicle in motion. Accordingly, I would dismiss the appeal and remit the matter to the Ontario Court of Justice for a new trial. . R. v. Serkissoon
In R. v. Serkissoon (Ont CA, 2026) the Ontario Court of Appeal allowed a Crown criminal appeal, this brought against acquittals for "impaired driving counts on a directed verdict application" and for "dangerous driving counts after a judge-alone trial."
Here the court reviews the historical and statutory basis of 'impaired driving':b. Statutory Framework
[31] Before dealing with the Crown’s argument, it is helpful to review the history and context of the offence of driving with excess BDC.
[32] Since 1969, the Criminal Code has outlawed driving with a blood alcohol content (“BAC”) of over 80 mg/100 mL: R. v. Rousselle, 2025 SCC 35, 453 C.C.C. (3d) 1, at para. 37.
[33] Parliament enacted various “evidentiary shortcuts” to simplify and streamline impaired driving proceedings: R. v. Alex, 2017 SCC 37, [2017] 1 S.C.R. 967, at para. 2. These evidentiary shortcuts historically provided that, where breath samples were tested via certain approved instruments, the result of that analysis was proof of the accused’s BAC both at the time the sample was taken and at the time the offence was alleged to have been committed, if certain conditions were met and in the absence of certain categories of evidence rebutting the presumption.
[34] In 2018, Parliament passed a comprehensive revision to the driving related provisions in the Criminal Code via An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, S.C. 2018, c. 21. This was a complete overhaul of the Criminal Code’s driving provisions and replaced all the former driving-related offences under a new Part VIII.1 of the Criminal Code: R. v. Wolfe, 2024 SCC 34, 441 C.C.C. (3d) 415, at paras. 11-12; Rousselle, at para. 100.
[35] Two features of this overhaul are important for purposes of this appeal.
[36] First, Parliament implemented new BDC offences, designed to combat drug-impaired driving in advance of cannabis legalization: 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, at pp. 7, 25.
[37] The new offence relevant to this appeal is found in s. 320.14(1)(c), which prohibits having a BDC that is equal to or exceeds the amount prescribed by regulation “within two hours after ceasing to operate a conveyance”:(1) Everyone commits an offence who
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(c) subject to subsection (6), has, within two hours after ceasing to operate a conveyance, a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation[.] [38] According to s. 2 of the Blood Drug Concentration Regulations, SOR/2018-148, the prescribed amount for THC is 5 ng/mL of blood.
[39] This new BDC offence is different in structure than the previous “over 80” provision as it appeared prior to the 2018 amendments. The previous “over 80” offence criminalized operating a motor vehicle and other conveyances with a BAC exceeding 80 mg/100 mL of blood. It is now an offence to have a certain BAC or BDC within two hours of having operated a conveyance. This makes it unnecessary to prove the accused’s BAC or BDC at the time of driving: Rousselle, at para. 100.
[40] Second, Parliament enacted statutory presumptions to facilitate proving this and other related offences. The statutory presumption relevant to this appeal is s. 320.31(2), which provides that “the result of an analysis” made by an “analyst” “is proof” of a person’s BDC at the time the sample was taken, in the absence of evidence that the analysis was conducted improperly:The result of an analysis made by an analyst of a sample of a person’s blood is proof of their blood alcohol concentration or their blood drug concentration, as the case may be, at the time when the sample was taken in the absence of evidence tending to show that the analysis was performed improperly. [41] “Analyst” is a defined term in s. 320.11:analyst means a person who is, or a person who is a member of a class of persons that is, designated by the Attorney General under subparagraph 320.4(b)(ii) or paragraph 320.4(c). [42] Section 320.4(b)(ii) provides that the Attorney General may designate a person or class of persons as qualified to analyze samples of bodily substances.
[43] The statutory presumption in s. 320.31(2) is an evidentiary shortcut; it is not an element of the offence that the Crown is required to prove. If the preconditions for relying on the statutory presumption are not met, the Crown may still prove the case against the accused in other ways depending on the evidence before the court. As the Supreme Court recently explained in the context of BAC in Rousselle, at para. 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 [Emphasis added, citations omitted.] [44] The trial judge in this case determined that the statutory presumption in s. 320.31(2) does not apply to blood samples seized via a s. 487 warrant.
[45] Subsequently, Edwards J. released a decision disagreeing with the trial judge on this point and finding that the statutory presumption does apply to blood samples seized in this way: R. v. Zhou, 2025 ONSC 6043. In reaching a different conclusion from the trial judge here, Edwards J. wrote as follows, at para. 108:I agree with the submissions of the Crown that Serkissoon did not engage in statutory interpretation using the modern approach reading the provision in its ordinary grammatical sense. Rather, it would appear that the court in Serkissoon relied on s. 320.3 of the Code, a provision that does not concern the presumption of accuracy but rather permits testing of samples taken “for the purposes of this part” for either alcohol or drugs both. I agree with the submission of the Crown that Parliament’s purpose in rewriting the presumption of accuracy as set forth in s. 320.31(2) cannot be informed by a different search power. I agree with the submission of the Crown that Parliament’s choice to remove reference to samples “taken pursuant to a demand”, or “taken under” specified sections, must be given effect in interpreting s. 320.31(2). [46] Edwards J. went on to cite the Supreme Court of Canada’s decision in Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, at para. 134, for the principle that Parliament is presumed not to speak in vain.
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[51] I agree with the Crown that the statutory presumption in s. 320.31(2) applies, notwithstanding that the respondent’s blood samples were obtained via a s. 487 warrant. I reach this conclusion by considering the text, context and purpose of s. 320.31(2): Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27; Rousselle, at paras. 80-81. This conclusion is sufficient to allow this ground of appeal.
[52] First, the text of s. 320.31(2) does not contain any qualifying language about how the blood sample was obtained. On its plain language, there is no basis to restrict its applicability to blood samples obtained via a warrant or police demand under Part VIII.1.
[53] Second, the context of s. 320.31(2) supports this interpretation. The trial judge relied on the context of other provisions in Part VIII.1, namely ss. 320.28 and 320.29, to conclude that the statutory presumption in s. 320.31(2) does not apply. Respectfully, I do not see anything in s. 320.3, even when read together with ss. 320.28 and 320.29, that would limit the application of the statutory presumption in s. 320.31(2).
[54] Section 320.3 is non-exclusive. It provides that “[s]amples of a person’s blood that are taken for the purposes of this Part may be analyzed to determine the person’s… blood drug concentration”. It permits samples taken for the purposes of Part VIII.1 to be analyzed to determine blood drug concentration. However, it does not say that only samples taken for the purposes of this Part may be analyzed to determine blood drug concentration.
[55] Moreover, even if s. 320.3 were exclusive, the blood samples in this case were taken “for the purposes of this Part”. While the blood samples were seized using a warrant obtained under a different Part, it is clear that the purpose of the seizure was to analyze the respondent’s blood for the purpose of proving an offence under Part VIII.1. I see no reason to construe s. 320.3 so narrowly as to exclude evidence seized for this purpose.
[56] Third, Parliament must have had some purpose in removing the restriction that was in the previous version of this statutory presumption. For ease of reference, I provide a side-by-side comparison of the statutory presumption pertaining to blood samples in s. 320.31(2), and the previous statutory presumption pertaining to blood samples in s. 258(d), as it appeared before the 2018 amendments came into force.
[57] The relevant statutory presumption pertaining to blood samples, as it appeared before the amendments came into force, was:(d) if a sample of the accused’s blood has been taken under section 254 or 256 or with the accused’s consent, evidence of the result of the analysis of that sample is conclusive proof, in the absence of evidence tending to show that the analysis was performed improperly, that the concentration of alcohol in the accused’s blood both at the time when the sample was taken and at the time when the offence was alleged to have been committed was the concentration determined by the analysis […] [Emphasis added.] [58] The relevant current statutory presumption, as it appears after the amendments came into force, is:(2) The result of an analysis made by an analyst of a sample of a person’s blood is proof of their blood alcohol concentration or their blood drug concentration, as the case may be, at the time when the sample was taken in the absence of evidence tending to show that the analysis was performed improperly. [59] As explained by Prof. Sullivan, “[i]t is presumed that amendments to the wording of a legislative provision are made for some intelligible purpose: to clarify the meaning, to correct a mistake, to change the law”: Ruth Sullivan, The Construction of Statutes, 7th Ed. (Toronto: LexisNexis, 2022), at § 23.02.
[60] The same logic applies here. Some meaning must be given to Parliament’s choice to remove the restrictive language in the previous version of the statutory presumption pertaining to blood samples.
[61] The previous version of this statutory presumption began with clear qualifying language limiting its application to blood samples taken under s. 254 (samples demanded by a peace officer), s. 256 (samples obtained via warrant) or with the accused’s consent. The other statutory presumptions in the pre-2018 legislation pertaining to breath samples had similar qualifying language. This language was removed in the new version of the presumption. In my view, Parliament’s choice to remove this qualifying language in s. 320.31(2) should be given meaning. As stated by Edwards J. in Zhou, Parliament’s choice to remove reference to samples taken under specified sections of the Criminal Code must be given effect in interpreting s. 320.31(2): at paras. 107-108.
[62] In sum, looking to the text, context and purpose of s. 320.31(2), the trial judge erred in concluding that s. 320.31(2) does not apply to analyses of blood samples obtained via a s. 487 warrant.
[63] This is sufficient to remit the impaired driving counts for a new trial. The trial judge’s error deprived the Crown of the evidentiary shortcut in s. 320.31(2). Consequently, the trial judge did not assess whether Ms. Chow was a “designated analyst” and did not determine the “result of the analysis” through the proper framework.
[64] The Crown goes further and asks this court to apply the presumption, find that Ms. Chow is an analyst as designated by Parliament, and interpret the “result of an analysis” to mean 5.2 ng/mL on these facts, as opposed to the entire 95% confidence interval of 4.8-5.6 ng/mL. Relying on R. v. Moreau, 1978 CanLII 162 (SCC), [1979] 1 S.C.R. 261, and R. v. Gibson, 2008 SCC 16, [2008] 1 S.C.R. 397, from the breathalyzer context, the Crown submits that Parliament is understood to have taken measurement uncertainty into account in setting the criminal threshold for BAC. The Crown argues that “the same logic applies to the presumption of accuracy in s. 320.31(2) as it relates to the result of Ms. Chow’s analysis of the respondent’s blood”, and thus the result of the analysis for the purpose of the presumption in s. 320.31(2) is 5.2 ng/mL.
[65] I decline to make that finding here. It is more appropriate for the trial judge, applying the proper framework, to assess whether Ms. Chow is a designated analyst and determine the result of her analysis within the meaning of s. 320.31(2). It will also be for the trial judge to grapple with any constitutional issues raised, and this court’s recent decisions in R. v. Kelly, 2025 ONCA 92, 175 O.R. (3d) 577, and R. v. Robertson, 2026 ONCA 281, which were released after the trial judge rendered judgment in this case. These issues were not fully addressed on this appeal, nor were they addressed in the reasons below, given the trial judge’s conclusion that the statutory presumption did not apply. As such, this court is not well situated to make a definitive ruling.
[66] Accordingly, I would allow this ground of appeal and remit the impaired driving counts for a new trial.
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