L'effet des amendements conférant un effet rétrospectif à la nouvelle version de l’article 258 (1) C.cr

R. c. Loiseau, 2010 QCCA 1872 (CanLII)

[10] L'effet des amendements a été très bien décrit par un juge de la Cour de justice d'Ontario dans R. c. Mariano, cité avec approbation par le juge MacPherson de la Cour d'appel d'Ontario dans R. c. Dineley :

At the time that this offence allegedly occurred, section 258 of the Criminal Code enabled the prosecution to establish certain facts by way of presumptions. In particular, once certain preconditions were met, section 258(1)(c) and (d.1) provided Crown counsel with a statutory shortcut by deeming that, where the lower result of the two breath samples taken from an accused exceeded the legal limit, her blood alcohol concentration at the time the offence alleged occurred was presumed to be at the same level. By this means the prosecutor avoided having to call expert evidence to relate the results of the accused's breath tests back to the time that she was driving or in care and control of a motor vehicle. This is known as the presumption of identity.

The presumption of identity was available to the Crown in the absence of "evidence to the contrary" namely evidence capable of raising a reasonable doubt about the accused's blood alcohol level at the time of the offence. In the past, evidence to the contrary typically consisted of testimony from the accused, and sometimes other witnesses, about her pattern of drinking prior to driving, along with evidence from a toxicologist indicating that, if the accused had consumed the amount she claimed, her blood alcohol level at the time of the offence would have been below the legal limit.

Pursuant to the Tackling Violent Crime Act, S.C. 2008, c. 6 (Bill C-2), which was enacted on July 2, 2008, section 258(1)(c) now provides that the result of the accused's lowest breath test is conclusive proof of her blood alcohol concentration at the time of the offence, in the absence of evidence tending to show:

● the approved instrument malfunctioned or was improperly operated;

● the malfunction or error resulted in the "over 80" result; and

● the accused's blood alcohol concentration would not have exceeded 80 milligrams of alcohol in 100 millilitres of blood at the time she was driving or in care and control of a motor vehicle.

In addition, section 258(d.01) precludes testimony with respect to the accused's alcohol consumption or her rate of elimination or a calculation of the accused's blood alcohol concentration premised on those factors from being advanced as evidence tending to show a problem with either the breath testing equipment or the testing procedure.

Where no challenge is being made to the accuracy of the results of the accused's breath tests, the amended section 258(d.1) permits the introduction of evidence that gives rise to the possibility that something, apart from normal biological processes, happened between the time of the alleged offence and the time of the breath tests that could have affected the accused's blood alcohol concentration. As an example, an accused person can still rebut the presumption of identity by leading evidence of bolus drinking or post-offence drinking.