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Police - Breath Alcohol Testing. 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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