CRIMINAL CHARGES WITHDRAWN
R. v. B.J.
CHARGES: Assault
“From the moment I spoke with your team, I knew I was in the right hands. You gave me the assurance everything would be attended to and handled with care. Your office has eased all the stress I felt when I was charged. You did everything you said you would, and I am extremely happy. You've gotten my family back together, and I couldn't be more thankful. I have never been in this situation before and am so glad I had your office by my side throughout this process. You made it easy for me. You were prompt. You were professional, and I cannot contain my excitement today. God bless you all.”
-B.J.
CRIMINAL CHARGES WITHDRAWN
R. v. H.K.
CHARGES: Impaired, Over 80
“PHEW, glad it has finally reached a resolution. Really appreciate the work and considerations taken to make my case a success. Needless to say, these have been some of the most stressful times of my life so far. Despite the negative aspects, I will try to take some valuable life lessons from this incident and use it as a positive going forward. Thank you very much, Team, for the efforts you took for my case. I truly cannot thank you enough. I hope everyone at your office stays blessed with health and happiness.”
-H.K.
CRIMINAL CHARGES WITHDRAWN
R. v. W.N.
CHARGES: Assault with a Weapon, Failure to Comply
“This is the greatest result I could ask for! You saved my life. Everyone should know about you guys. Whenever someone is in trouble with the law, you are who they should call. Absolute life saver! Thank you.”
-W.N.
CRIMINAL CHARGES WITHDRAWN
R. v. H.C.
CHARGES: Impaired Operation, Over 80
"If anyone is looking for a lawyer, I highly recommend that they hire this team. Excellent result. And fair with me from the start. Thank you."
-H.C.
CRIMINAL CHARGES WITHDRAWN
R. v. B.E.
CHARGES: Assault Cause Bodily Harm
“I feel completely exonerated. The best thing that could possibly happen in all of this mess. This was all a big baloney sandwich, to begin with, but you were patient and took me through every step of the process. The team was available to me 24 hours a day through the client portal. And although this was stressful, you made it easy and understandable. I’m not the easiest person to get along with. But you were patient and polite, and I thank you for your professionalism and for clearing my name of all of this. I can finally go back to life as normal. Thank you.”
-B.E.
CRIMINAL CHARGES WITHDRAWN
R. v. S.K.
CHARGES: Impaired Operation, Failure to Attend Court
“My father recommended I hire you to handle my impaired driving case...You got all of the criminal charges against me withdrawn. Now I’m recommending that all of my friends contact you when they’re in trouble. Your knowledge and expertise saved me. Thank you.”
-S.K.
CRIMINAL CHARGES WITHDRAWN
R. v. S.C.
CHARGES: Mischief to Property; Theft; Assault
“Criminal Charges were withdrawn before the first court date. Done and gone! No fingerprints or photographs. No criminal record. Wow! These guys are awesome, use them.”
-S.C.
CRIMINAL CHARGES WITHDRAWN
R. v. G.A
CHARGES: Impaired, Over 80, Fail to Remain
“I’m definitely going to recommend you to anyone who gets in this situation. I’m grateful for your help and hard work. This is an excellent result. Thank you.”
-G.A.
CRIMINAL CHARGES WITHDRAWN
R. v. W.C.
CHARGES: Assault, Choking, Forcible Confinement
“I can’t thank you enough for your help. I strongly encourage anyone charged or needing a strong legal representative to call immediately. I can’t recommend you enough. Having never been charged before, with my freedom at stake, I knew I needed an expert. I found you online and spoke with you about my case. You calmed me down and provide guidance throughout the process. You made me feel confident that everything was under control. I’m so relieved this is all behind me. You saved my life. I will never forget what you and your team have done for me and I will continue to sing your praises and recommend you to anyone in need. Thank you.”
-W.C.
NOT GUILTY
R. v. S.G
CHARGES: Impaired Operation, Over 80
“I chose the right lawyer to fight my charges!
Having never been charged with a criminal offence, I was very anxious. But you were an unrelenting lawyer at trial. I’m so relieved to have chosen the right lawyer to fight these charges for me. You were an expert in the courtroom. Thank you. "
-S.G.
FREQUENTLY ASKED QUESTIONS
FAQ
1. What is a BAC equal to or over 80?
A BAC equal to or over 80 is a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood.¹
¹“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 320.14(1)(b), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
2. When is it unlawful to have a BAC equal to or over 80?
It is unlawful to have a BAC equal to or over 80 within two hours after ceasing to operate a conveyance.²
²“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.14(1), 320.14(1)(b), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
3. What is a “conveyance” in this Context?
A conveyance is defined as a motor vehicle, a vessel, an aircraft, or railway equipment.³ A motor vehicle is defined as a vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment.⁴
³“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 320.11, “Criminal Code, RSC 1985, c C-46” (26 May 2026)
⁴“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 2, “Criminal Code, RSC 1985, c C-46” (26 May 2026)
4. What is “Operation” in this Context?
To operate is defined as, in respect of a motor vehicle, to drive the motor vehicle or to have care or control of the motor vehicle.⁵
⁵“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 320.11, “Criminal Code, RSC 1985, c C-46” (26 May 2026)
5. What are the essential elements of the offence of BAC equal to or over 80?
The essential elements of the offence of BAC equal to or over 80 have been defined as
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That the accused had a blood alcohol concentration equal to or exceeding 80 mg of alcohol in 100 mL of blood⁶
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within two hours after ceasing to operate a conveyance.⁷
⁶“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 320.14(1)(b), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
⁷“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.14(1), 320.14(1)(b), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
6. What is the Actus Reus of the offence of BAC equal to or over 80?
The actus reus of the offence of BAC equal to or over 80 seems to have been defined as operating a conveyance within two hours of having a blood alcohol concentration equal to or exceeding 80 mg of alcohol in 100 mL of blood.⁸
7. What is the Mens Rea of "Operation While Impaired"?
The mens rea of the offence of BAC equal to or over 80 seems to have been defined as intent to operate a conveyance within two hours of having a blood alcohol concentration equal to or exceeding 80 mg of alcohol in 100 mL of blood after voluntary consumption of alcohol.⁹
¹⁵ See, e.g., “R. v. Deshpande, 2021 ONCJ 699 (CanLII)”
https://www.canlii.org/en/on/oncj/doc/2021/2021oncj699/2021oncj699.html (accessed 18 July 2026) at paras 1, 82-85, 100.
¹⁶ Cf, “R. v. Ramroop, 2021 ONCA 642 (CanLII)”
https://www.canlii.org/en/on/onca/doc/2021/2021onca642/2021onca642.html (accessed 19 July 2026) at para 11.
¹⁷ Cf, “R. v. Castelblanco Velasco, 2019 ONCJ 84 (CanLII)”
https://www.canlii.org/en/on/oncj/doc/2019/2019oncj84/2019oncj84.html (accessed 17 July 2026) at para 122.
¹⁸ “Criminal Code, RSC 1985, c C-46” (26 May 2026)
https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html (accessed 17 July 2026) at ss 320.14(1)(a), 320.27(1), 320.27(1)(a), 320.27(1)(b), 320.27(1)(c), 320.27(2), 320.28(1), 320.28(1)(a), 320.28(1)(a)(i), 320.28(1)(a)(ii), 320.28(1)(b), 320.28(2), 320.28(2)(a), 320.28(2)(b), 320.28(3), 320.28(4), 320.28(4)(a), 320.28(4)(b), 320.31(10).
¹⁹ “R v McGinnes, 2020 ABPC 269 (CanLII)”
https://www.canlii.org/en/ab/abpc/doc/2020/2020abpc269/2020abpc269.html (accessed 17 July 2026) at paras 127-129.
8. Is an accused’s having a blood alcohol concentration equal to or exceeding 80 mg of alcohol in 100 mL of blood within two hours after ceasing to operate a conveyance ever lawful due to a statutory exception?
No person commits an offence of BAC equal to or over 80 if the person consumed alcohol after ceasing to operate the conveyance; after ceasing to operate the conveyance, the person had no reasonable expectation that the person would be required to provide a sample of breath or blood; and the person’s alcohol consumption is consistent with the person’s blood alcohol concentration as determined in accordance with the legal requirements for proving the person’s blood alcohol concentration and with the person’s having had, at the time when the person was operating the conveyance, a blood alcohol concentration that was less than 80 mg of alcohol in 100 mL of blood.¹⁰
This creates a statutory exception to the offence of BAC equal to or over 80.¹¹
This statutory exception has three elements.¹²
The accused is required to establish that all three elements have an air of reality,¹³ following which the burden shifts to the Crown to negate the statutory exception. ¹⁴
The inquiry into whether there is an evidential foundation for a defence is referred to as the air of reality test.¹⁵ The correct approach to the air of reality test is whether there is evidence on the record
upon which a properly instructed jury acting reasonably could acquit.¹⁶ When there is an air of reality to a defence, the defence should go to the trier of fact.¹⁷ A defence which lacks an air of reality should be kept from the trier of fact even when the defence lacking an air of reality represents the accused’s only chance for an acquittal.¹⁸ A defence possesses an air of reality if a properly instructed jury acting reasonably could acquit the accused on the basis of the defence.¹⁹ The air of reality test imposes a burden on the accused that is merely evidential, rather than persuasive.²⁰ The air of reality test is concerned only with whether a defence should be submitted to the trier of fact for consideration.²¹
The air of reality test does not assess whether the defence is strong, but assesses whether the evidence discloses a real issue to be decided by the trier of fact.²²
Whether there is an air of reality to a defence is a question of law subject to appellate review.²³ It is an error of law to put to the trier of fact a defence lacking an air of reality and it is an error of law to keep from the trier of fact a defence that has an air of reality.²⁴
In applying the air of reality test, a trial judge considers the totality of the evidence and assumes the evidence relied upon by the accused to be true.²⁵ The evidential foundation can be indicated by evidence emanating from the examination in chief or cross-examination of the accused, of defence witnesses, or of Crown witnesses, can also rest upon the case’s factual circumstances, or upon any other evidential source on the record.²⁶ There is no requirement that the evidence supporting the air of reality be adduced by the accused.²⁷
The statutory exception’s three elements are:
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that the accused consumed alcohol after ceasing to operate the conveyance;²⁸
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that the accused had no reasonable expectation that the accused would be required to provide a sample of the accused’s breath or blood after ceasing to operate the conveyance;²⁹ and
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that the accused’s alcohol consumption is consistent with the accused’s blood alcohol concentration as determined in accordance with the legal requirements for proving the accused’s blood alcohol concentration and with the accused’s having had, at the time when the accused was operating the conveyance, a blood alcohol concentration that was less than 80 mg of alcohol in 100 mL of blood.³⁰ In order to succeed in this element, the Court must be led to conclude (or to have a reasonable doubt) about the following two facts:
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that the accused’s post-driving alcohol consumption is consistent with the Intoxilyzer results;³¹ and
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that the accused’s post-driving alcohol consumption is consistent with the accused’s having had a blood alcohol level below 80 mg of alcohol in 100 mL of blood when the accused was operating the conveyance.³²
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¹⁵“R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 50, “R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 50.
¹⁶“R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 49, “R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 49.
¹⁷“R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 51, “R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 51.
⁸“R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 51, “R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 51.
¹⁹“R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 2, “R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 2.
²⁰“R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 52, “R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 52.
²¹“R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 52, “R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 52.
²²“R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 54, “R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 54.
²³“R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 55, “R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 55.
²⁴“R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 55, “R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 55.
²⁵“R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 53, “R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 53.
²⁶“R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 53, “R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 53.
²⁷“R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 50, “R. v. Cinous, [2002] 2 S.C.R. 3, 2002 SCC 29” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1968/index.do at para 53.
²⁹“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.14(5), 320.14(5)(b), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
³⁰“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.14(1), 320.14(1)(b), 320.14(5), 320.14(5)(c), 320.31(1), 320.31(1)(a), 320.31(1)(b), 320.31(1)(c), 320.31(2), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
³¹“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.14(1), 320.14(1)(b), 320.14(5), 320.14(5)(c), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
³²“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.14(1), 320.14(1)(b), 320.14(5), 320.14(5)(c), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
9. How does an accused establish that the accused had no reasonable expectation that the accused would be required to provide a sample after ceasing to operate the conveyance?
The use of the words “no reasonable expectation” means that establishing that the accused had no reasonable expectation that the accused would be required to provide a sample of the accused’s breath or blood after ceasing to operate the conveyance has both subjective and objective elements and is properly evaluated using the modified objective test,³³ a standard which requires the trial judge to assess the accused’s conduct’s reasonableness by placing the reasonable person in the accused’s circumstances but evidence of the accused’s personal attributes (such as age, experience and education) is irrelevant unless the attribute goes to the accused’s incapacity to appreciate the situation.³⁴ This means asking whether the reasonable operator of a conveyance, having endured what the accused endured while operating the conveyance, would not expect to be required to provide a sample of breath or blood to the police.³⁵ It is also permitted to take into account evidence about the accused’s conduct after the accused ceases to operate the conveyance.³⁶
An accused who is in an accident with a conveyance while operating the conveyance is unlikely to be able to establish that the accused had no reasonable expectation that the accused would be required to provide a sample of the accused’s breath or blood after ceasing to operate the conveyance.³⁷
³²“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.14(1), 320.14(1)(b), 320.14(5), 320.14(5)(c), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
³⁴“R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/8259/index.do at para 38, “R. v. Roy, 2012 SCC 26 (CanLII), [2012] 2 SCR 60”
²⁰ See, e.g., “R. v. McGrath, 2013 ONCJ 528 (CanLII)”
https://www.canlii.org/en/on/oncj/doc/2013/2013oncj528/2013oncj528.html (accessed 17 July 2026) at paras 1, 33, 35.
²¹ “R. v. McGrath, 2013 ONCJ 528 (CanLII)”
https://www.canlii.org/en/on/oncj/doc/2013/2013oncj528/2013oncj528.html (accessed 17 July 2026) at para 6
²² “R. v. Hallahan, 2021 ONCJ 156 (CanLII)”
https://www.canlii.org/en/on/oncj/doc/2021/2021oncj156/2021oncj156.html (accessed 17 July 2026) at paras 4, 24-28.
²³ “R. v. McGrath, 2013 ONCJ 528 (CanLII)”
https://www.canlii.org/en/on/oncj/doc/2013/2013oncj528/2013oncj528.html (accessed 17 July 2026) at para 8.
²⁴ “R. v. McGrath, 2013 ONCJ 528 (CanLII)”
https://www.canlii.org/en/on/oncj/doc/2013/2013oncj528/2013oncj528.html (accessed 17 July 2026) at para 12.
²⁵ “R. v. Magdallah, 2024 ONSC 3660 (CanLII)”
https://www.canlii.org/en/on/onsc/doc/2024/2024onsc3660/2024onsc3660.html (accessed 17 July 2026) at paras 1, 11.
²⁶ “R. v. Hallahan, 2021 ONCJ 156 (CanLII)”
https://www.canlii.org/en/on/oncj/doc/2021/2021oncj156/2021oncj156.html (accessed 17 July 2026) at para 23.
²⁷ “R. v. White, 2022 ONCJ 600 (CanLII)”
https://www.canlii.org/en/on/oncj/doc/2022/2022oncj600/2022oncj600.html (accessed 17 July 2026) at paras 1-2, 5, 27.
²⁸ “R. v. McGrath, 2013 ONCJ 528 (CanLII)”
https://www.canlii.org/en/on/oncj/doc/2013/2013oncj528/2013oncj528.html (accessed 17 July 2026) at para 13.
²⁹ “R. v. White, 2022 ONCJ 600 (CanLII)”
https://www.canlii.org/en/on/oncj/doc/2022/2022oncj600/2022oncj600.html (accessed 17 July 2026) at para 37.
³⁰ “R. v. Domb, 2011 ONCJ 756 (CanLII)”
https://www.canlii.org/en/on/oncj/doc/2011/2011oncj756/2011oncj756.html (accessed 17 July 2026) at paras 1-6, 86, 88.
10. How does an accused establish that the accused’s alcohol consumption is consistent with the accused’s blood alcohol concentration as determined in accordance with legal requirements for proving the accused’s blood alcohol concentration and with the accused’s having had a blood alcohol concentration less than 80 mg of alcohol in 100 mL of blood when operating the conveyance?
Expert evidence is required for the accused to succeed in this element of the exception,³⁸ because the accused must show that the evidence is consistent with scientifically reliable results establishing the accused’s blood alcohol concentration.³⁹ This requirement of expert evidence is not eliminated merely because the Crown relied upon the statutory read-back provisions for determining the accused’s blood alcohol concentration.⁴⁰
⁴⁰“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.14(1), 320.14(1)(b), 320.31(4), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
11. When is evidence about an accused’s blood alcohol concentration reliable?
It is recognized and declared that 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.⁴¹
If samples of an accused’s breath have been received into an approved instrument operated by a qualified technician, then the results of the analyses of the samples are conclusive proof of the accused’s blood alcohol concentration at the time when the analyses were made if the results of the analyses are the same.⁴² When the results of the analyses are different, the lowest of the results is conclusive proof of the accused’s blood alcohol concentration at the time when the analyses were made if 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;⁴³ there was an interval of at least fifteen minutes between the times when the samples were taken;⁴⁴ and 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.⁴⁵
This is a presumption of accuracy which allows the Crown to rely upon a person’s breath alcohol test results as conclusive proof of the person’s BAC at the time the breath tests were conducted.⁴⁶ This presumption of accuracy allows the Crown to avoid having to lead expert evidence to prove the accuracy and reliability of the breath test’s results in each prosecution for BAC equal to or over 80.⁴⁷ In order to benefit from this presumption of accuracy, the Crown must prove beyond a reasonable doubt that the statutorily established preconditions were met.⁴⁸ There is no prescribed method for proving the preconditions to the presumption of accuracy,⁴⁹ and the Crown is permitted to seek to prove the preconditions to the presumption of accuracy by different means from one prosecution to the next.⁵⁰ The Crown can prove the preconditions to the presumption of accuracy by viva voce evidence at trial or by documentary evidence: the certificate of an analyst, certificate of a qualified technician, and printout from an approved instrument can satisfy the preconditions.⁵¹
In this context, the fact that 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 an accused’s breath is evidence of the facts alleged in the document without proof of the signature or official character of the person who signed the document⁵² is important.⁵³
A certificate of an analyst, qualified medical practitioner or qualified technician made under the part of the Criminal Code dealing with Offences Relating to Conveyances 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.⁵⁴ No certificate shall be received in evidence unless the party intending to produce the certificate has, before the trial, given to the other party reasonable notice of the party’s intention to produce the certificate and a copy of the certificate.⁵⁵ A party against whom the certificate is produced may apply to the court for an order requiring the attendance of the person who signed the certificate for the purposes of cross-examination. ⁵⁶The application shall be made in writing and set out the likely relevance of the proposed cross-examination with respect to the facts alleged in the certificate.⁵⁷ A copy of the application shall be given to the prosecutor at least thirty days before the day on which the application is to be heard.⁵⁸ The hearing of the application shall be held at least thirty days before the day on which the trial is to be held.⁵⁹
If the Crown seeks to prove the preconditions to the presumption of accuracy only through certificate evidence, this opportunity to apply for leave to cross-examine serves as an avenue for the accused to raise a reasonable doubt that the facts alleged in the certificate satisfy one or more of the preconditions to the presumption of accuracy.⁶⁰
The requirement that the Crown disclose the certificate of the analyst gives the accused the ability to ascertain, before trial, whether there are any defects in the certificate of the analyst or inconsistencies between the certificate of the analyst and the certificate of the qualified technician, potentially allowing the accused to raise a reasonable doubt about the alcohol standard aspect of the precondition to the presumption of accuracy.⁶¹ If the certificate of the analyst shows that the alcohol standard used in the system calibration check had expired at the time of testing (i.e., it was no longer suitable for use), this might raise a reasonable doubt about whether the qualified technician conducted the system calibration check in accordance with the alcohol standard aspect of the precondition to the presumption of accuracy.⁶²
In proceedings in respect of an offence of BAC equal to or over 80, the prosecutor shall disclose to the accused, with respect to any samples of breath that the accused provided in response to a breath demand, information sufficient to determine whether the conditions required to trigger the presumption of accuracy have been met,⁶³ namely the results of the system blank tests;⁶⁴ the results of the system calibration checks;⁶⁵ any error or exception messages produced by the approved instrument at the time the samples were taken;⁶⁶ the results of the analysis of the accused’s breath samples;⁶⁷ and 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.⁶⁸
Although the Crown must disclose the target value to the accused, the Crown does not need to prove the target value at the time of testing in order to rely upon the presumption of accuracy because the target value is not important, only the fact that the qualified technician conducted a system calibration check, the result of which was within 10% of the target value.⁶⁹
But merely because the Crown is required to disclose the certificate of an analyst does not mean that the Crown is required to produce the certificate of an analyst at trial as proof that the alcohol standard was certified by an analyst.⁷⁰
Although failure to prove the statutory preconditions beyond a reasonable doubt means that the Crown cannot rely upon the presumption of accuracy in order to prove an accused’s BAC at the time of testing, the presumption of accuracy it is not an element of the offence of BAC equal to or over 80, and there may be other ways for the Crown to prove its case against the accused depending upon the evidence before the Court.⁷¹
The result of an analysis made by an analyst of a sample of an accused’s blood is proof of the accused’s blood alcohol concentration at the time when the sample was taken in the absence of evidence tending to show that the analysis was performed improperly.⁷²
Evidence of the following does not constitute evidence tending to show that an analysis of a sample of an accused’s blood was performed improperly: the amount of alcohol that the accused consumed;⁷³ the rate at which the alcohol would have been absorbed or eliminated by the accused’s body;⁷⁴ or a calculation based on the evidence of the amount of alcohol that the accused consumed and the rate at which the alcohol would have been absorbed or eliminated by the accused’s body of what the accused’s blood alcohol concentration would have been at the time the sample was taken.⁷⁵
For the purpose of convicting an accused of BAC equal to or over 80, if the first of the samples of breath was taken, or the sample of blood was taken, more than two hours after the accused ceased to operate the conveyance and the person’s blood alcohol concentration was equal to or exceeded 20 mg of alcohol in 100 mL of blood, the person’s blood alcohol concentration within those two hours is conclusively presumed to be the concentration established in accordance with the legally established tests, plus an additional 5 mg of alcohol in 100 mL of blood for every interval of thirty minutes in excess of those two hours.⁷⁶
⁴¹“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.12, 320.12(c), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
⁴²“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 320.31(1), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
⁴³“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.31(1), 320.31(1)(a), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
⁴⁴“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.31(1), 320.31(1)(b), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
⁴⁵“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.31(1), 320.31(1)(c), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
⁴⁶“R. v. Rousselle, 2025 SCC 35” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21267/index.do at para 2,
⁴⁷“R. v. Rousselle, 2025 SCC 35” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21267/index.do at para 41,
⁴⁸“R. v. Rousselle, 2025 SCC 35” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21267/index.do at para 2,
⁴⁹“R. v. Rousselle, 2025 SCC 35” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21267/index.do at para 133,
⁵⁰“R. v. Rousselle, 2025 SCC 35” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21267/index.do at para 133,
⁵¹“R. v. Rousselle, 2025 SCC 35” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21267/index.do at para 51,
⁵²“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 320.33, “Criminal Code, RSC 1985, c C-46” (26 May 2026)
⁵³“R. v. Rousselle, 2025 SCC 35” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21267/index.do at paras 55-57, “
⁵⁴“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 320.32(1), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
⁵⁵“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 320.32(2), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
⁵⁶“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 320.32(3), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
⁵⁷“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 320.32(4), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
⁵⁸“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 320.32(4), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
⁵⁹“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 320.32(5), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
⁶⁰“R. v. Rousselle, 2025 SCC 35” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21267/index.do at paras 133-134,
⁶¹“R. v. Rousselle, 2025 SCC 35” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21267/index.do at para 135,
⁶²“R. v. Rousselle, 2025 SCC 35” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21267/index.do at para 136, “R. v. Rousselle, 2025 SCC 35 (CanLII)” https://www.canlii.org/en/ca/scc/doc/2025/2025scc35/2025scc35.html at para 136, read in context with “Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026)
⁶³“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.14(1), 320.14(1)(b), 320.31(1), 320.31(1)(a), 320.31(1)(b), 320.28(1), 320.28(1)(a), 320.28(1)(a)(i), 320.28(3), 320.31(1)(c), 320.34(1), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
⁴“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 320.34(1)(a), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
⁶⁵“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 320.34(1)(b), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
⁶⁶“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 320.34(1)(c), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
⁶⁷“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 320.34(1)(d), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
⁶⁸“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 320.34(1)(e), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
⁶⁹“R. v. Larocque, 2025 SCC 36” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21268/index.do at paras 4, 33, “R. v. Larocque, 2025 SCC 36 (CanLII)” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21268/index.do at paras 4, 33.
⁷⁰“R. v. Rousselle, 2025 SCC 35” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21267/index.do at para 140,
⁷¹“R. v. Rousselle, 2025 SCC 35” https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21267/index.do at para 48,
⁷²“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 320.31(2), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
⁷³“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.31(3), 320.31(3)(a), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
⁷⁴“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.31(3), 320.31(3)(b), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
⁷⁵“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.31(3), 320.31(3)(a), 320.31(3)(b), 320.31(3)(c), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
⁷⁶“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.14(1), 320.14(1)(b), 320.31(1), 320.31(1)(a), 320.31(1)(b), 320.31(1)(c), 320.31(2), 320.31(4), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
³⁸ See, e.g., albeit under the old statutory scheme, “R. v. Bullock, 2018 ONCJ 250 (CanLII)”
https://www.canlii.org/en/on/oncj/doc/2018/2018oncj250/2018oncj250.html (accessed 17 July 2026) at paras 1, 13-16.
³⁹ “Criminal Code, RSC 1985, c C-46” (26 May 2026)
https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html (accessed 17 July 2026) at ss 320.14(1)(a), 320.35.
⁴⁰ “R. v. Maniatis, 2024 CanLII 24885 (ON SC)”
https://www.canlii.org/en/on/onsc/doc/2024/2024canlii24885/2024canlii24885.html (accessed 17 July 2026) at paras 1, 6, 16-18, 44, 47-48.
⁴¹ See, e.g., “R. v. Aggarwal, 2022 ONSC 6213 (CanLII)”
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc6213/2022onsc6213.html (accessed 17 July 2026) at para 11.
⁴² “F.H. v. McDougall, 2008 SCC 53 (CanLII), [2008] 3 SCR 41”
https://www.canlii.org/en/ca/scc/doc/2008/2008scc53/2008scc53.html (accessed 17 July 2026) at para 49.
⁴³ See, e.g., “R. v. Osbourne, 2021 ONCJ 58 (CanLII)”
https://www.canlii.org/en/on/oncj/doc/2021/2021oncj58/2021oncj58.html (accessed 17 July 2026) at paras 1-2, 19-20, 27-28.
⁴⁴ “R. v. Smits, 2012 ONCA 524 (CanLII)”
https://www.canlii.org/en/on/onca/doc/2012/2012onca524/2012onca524.html (accessed 17 July 2026) at paras 52-53.
⁴⁵ “R. v O’Brien, 2020 CanLII 55107 (NL PC)”
https://www.canlii.org/en/nl/nlpc/doc/2020/2020canlii55107/2020canlii55107.html (accessed 17 July 2026) at paras 1, 11-13.
12. What is an approved instrument in this Context?
An approved instrument is an instrument that is designed to receive and make an analysis of a sample of a person’s breath to determine the person’s blood alcohol concentration and is approved by the Attorney General of Canada as an instrument that is designed to receive and make an analysis of a sample of a person’s breath to determine the person’s blood alcohol concentration.⁷⁷
⁷⁷“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.11, 320.39, 320.39(c), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
13. What is a qualified technician in this Context?
A qualified technician means, in respect of breath samples, a person who is designated by the Attorney General as a person as qualified to operate an approved instrument.⁷⁸
A qualified technician means, in respect of blood samples, a person who is, or a person who is a member of a class of persons that is, designated by the Attorney General to take samples of blood.⁷⁹
⁷⁸“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.11, 320.4, 320.4(a), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
⁷⁹“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.11, 320.4, 320.4(b), 320.4(b)(i), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
14. What is an analyst in this Context?
An 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 as qualified to analyze samples of bodily substances⁸⁰ or as qualified to certify that an alcohol standard is suitable for use with an approved instrument.⁸¹
¹ “Criminal Code (R.S.C., 1985, c. C-46)” (26 May 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 320.14(1)(a),
⁸⁰“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.11, 320.4, 320.4(b), 320.4(b)(ii), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
⁸¹“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at ss 320.11, 320.4, 320.4(c), “Criminal Code, RSC 1985, c C-46” (26 May 2026)
15. What is a qualified medical practitioner in this Context?
A qualified medical practitioner means a person who is qualified under provincial law to practise medicine.⁸²
⁸²“Criminal Code (R.S.C., 1985, c. C-46)” (5 June 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 320.11, “Criminal Code, RSC 1985, c C-46” (26 May 2026)
16. How should claims that an accused involuntarily consumed alcohol be dealt with?
Involuntary intoxication occurs when a person unknowingly takes intoxicants (as occurs when an accused consumes a spiked drink).⁸³
The defence of involuntary intoxication, although often conflated and/or confused with the defence of automatism, is separate from the defence of automatism.⁸⁴
Any degree of intoxication, even not intoxication causing automatism, can support a defence of involuntary intoxication.⁸⁵
An accused is presumed to have become intoxicated voluntarily.⁸⁶
Because proven intoxication’s voluntariness is assumed, absent evidence to the contrary, the accused must raise a reasonable doubt about voluntary consumption before a defence of involuntary intoxication can succeed.⁸⁷ Although the presumption of voluntary intoxication is rebuttable, the defence only needs to point to evidence that raises a reasonable doubt about the intoxication’s voluntariness and does not need to prove anything on a balance of probabilities.⁸⁸ This means that when the accused raises the defence of involuntary intoxication, the accused has no burden to prove anything and the burden remains with the Crown to prove beyond a reasonable doubt that the accused’s act was voluntary.⁸⁹
When an accused raises the defence of involuntary intoxication to the charge of impaired operation, the accused is, for the defence’s purpose, conceding that the accused’s actions fulfilled the actus reus of the charge of BAC equal to or over 80 but is alleging that the accused lacked the mens rea sufficient to be convicted of BAC equal to or over 80.⁹⁰
If the accused can raise a reasonable doubt about the intoxication’s voluntariness and whether the accused realized impairment before operating a conveyance with an unlawfully high blood alcohol level, then the accused must be acquitted of BAC equal to or over 80.⁹¹
¹ “Criminal Code (R.S.C., 1985, c. C-46)” (26 May 2026) https://laws.justice.gc.ca/eng/acts/C-46/FullText.html at s 320.14(1)(a),
⁸³“R. v. McGrath, 2013 ONCJ 528 (CanLII)” https://www.canlii.org/en/on/oncj/doc/2013/2013oncj528/2013oncj528.html at para 6.
TESTIMONIALS
Case: R. v. A.M. Charge:
Impaired Driving Over 80
Result: Criminal Charge Withdrawn
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- A.M.
Case: R. v. A.T.
Charge: Impaired Driving Over 80
Result: Criminal Charge Withdrawn
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