This Week’s Highlights
- NEW SCC CASE
- NEW PHOTORADAR CASE
1. Court Review
This week, I will be addressing two cases:
R. v. Rouselle, 2025 SCC 35 and R. v. Bijl 2025 SKCA 116
R. v. Rouselle, 2025 SCC 35
This case significantly shortcuts the necessary proof required to find that a person is over 80.
The Criminal Code creates a presumption of accuracy. A certificate or testimony from a Qualified Technician is proof that a person is over 80 if:
320.31 (1) If samples of a person’s breath have been received into an approved instrument operated by a qualified technician, the results of the analyses of the samples are conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made if the results of the analyses are the same — or, if the results of the analyses are different, the lowest of the results is conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made — if
(a) before each sample was taken, the qualified technician conducted a system blank test, the result of which is not more than 10 mg of alcohol in 100 mL of blood and a system calibration check, the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst;
(b) there was an interval of at least 15 minutes between the times when the samples were taken; and
(c) 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.
Before this case, there were differing opinions about whether the Crown needed to prove that the alcohol standard was actually certified by an analyst or whether it was sufficient for a breath technician (qualified technician) just to say that it was (hearsay).
The court concluded that providing certification was unnecessary and that hearsay would suffice. At paras 140, 144:
[140]However, the Crown’s disclosure obligations under s. 320.34 must be distinguished from the evidentiary requirements that the Crown must meet to prove the presumption of accuracy at trial. Simply because the Crown is required to disclose the certificate of an analyst under s. 320.34(1)(e) does not mean that the Crown is required to produce it at trial as proof that the alcohol standard was certified by an analyst.
[144] Accordingly, the Crown is entitled to rely on the evidence of the qualified technician to prove that an alcohol standard was certified by an analyst, as required by the precondition in s. 320.31(1)(a). It is unnecessary for the Crown to call on the analyst to give evidence as to this fact, either by certificate or viva voce; requiring the Crown to do so would amount to reading in a technical requirement that is inconsistent with the purpose, text, and context of s. 320.31(1)(a).
R. v. Bijl 2025 SKCA 116
A speeding ticket case where reasonable doubt is raised on the accuracy of the radar device used.
The bottom line in this case is that the radar manufacturer stated that the antenna used to capture the speed in question operated at a frequency of 34.66 GHz. The tuning fork used to confirm that the radar was working properly operated at a frequency of 34.77 GHz. The judge held that without expert evidence, he could not determine if that difference was significant or not.
The Court of Appeal upheld his ruling, holding that the judge was not wrong in reaching his legal conclusion that he needed an expert to resolve the issue at para 33.
[33] As noted, the Crown’s argument that the frequency differences were immaterial turned on whether tuning forks calibrated to produce expected readings when used with a radar unit operating at 34.7 GHz would produce the same readings when used with a radar unit operating at 34.66 GHz. Although expert evidence is not always necessary to establish the accuracy of a radar unit, I agree that this narrow question required specialized expertise to understand. It is also not something of which judicial notice could be taken because it is not “so notorious or generally accepted as not to be the subject of debate among reasonable persons” or something that is “capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy” (R v Find, 2001 SCC 32 at para 48, [2001] 1 SCR 863). The JP did not err in concluding that expert evidence on this point was necessary to draw the inference that the different frequencies were immaterial, as the Crown had argued., as a matter of statutory interpretation, the Criminal Code does not require that evidence be introduced in order to rely on the presumption of accuracy …
Bonus Resources
- SafeRoads Alberta Portal: https://saferoads.alberta.ca
- Alberta Government – Impaired Driving Laws: https://www.alberta.ca/impaired-driving
- CanLII: Key Impaired Driving Cases in Alberta: https://www.canlii.org
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