22. ...Evidence to the contrary, as articulated in s. 258(1)(c) of the Criminal Code, means evidence sufficient to show that the temporal presumption, or as Arbour J.A. calls it the presumption [page397] of identity, should not operate to deem the blood-alcohol level of the motorist at the time of breathalyzer testing to be the same as the blood-alcohol level at the time of driving....per Iacobucci J. (Lamer C.J.C., Sopinka, Cory and Major JJ. concurring)
� 23 The scheme established in the Criminal Code for proving the offence of ''over 80'' contains presumptions to assist the Crown in surmounting two important evidentiary hurdles. But for these presumptions, the Crown's task would be significantly more difficult. It is crucial, therefore, to keep in mind that presumptions are merely legal or evidentiary shortcuts designed to bridge difficult evidentiary gaps, and that they are rebuttable upon the leading of ''evidence to the contrary''. If such evidence to the contrary is led, the Crown can still proceed to try and prove its case without the benefit of these evidentiary shortcuts.
� 24 To adopt the terminology of Arbour J.A., s. 258 refers to two presumptions, the presumption of accuracy (s. 258(1)(g)) and the presumption of identity (s. 258(1)(c)). The first presumption addresses the dilemma of how to prove in court what the accused's blood-alcohol content was at the time of testing on the breathalyzer. Section 258(1)(g) of the Code provides:
where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), a certificate of a qualified technician stating
that the analysis of each of the samples has been made by means of an approved instrument operated by the technician and ascertained by the technician to be in proper working order by means of an alcohol standard, identified in the certificate, that is suitable for use with an approved instrument,
the results of the analyses so made, and
if the samples were taken by the technician,
(A) [not proclaimed]
the time when and place where each sample and any specimen described in clause (A) was taken, and
that each sample was received from the accused directly into an approved container or into an approved instrument operated by the technician, [page398] is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate;
� 25 In addition, s. 25 of the Interpretation Act, R.S.C. 1985, c. I-21, reads:
25(1) Where an enactment provides that a document is evidence of a fact without anything in the context to indicate that the document is conclusive evidence, then, in any judicial proceedings, the document is admissible in evidence and the fact is deemed to be established in the absence of any evidence to the contrary.
� 26 Clearly, the result of these two provisions is that a presumption that the reading received on the breathalyzer provides an accurate determination of the accused's blood-alcohol level at the time of the testing is established. Hence, the certificate can be tendered in evidence to prove what this blood-alcohol level was. However, if the accused leads or points to ''evidence to the contrary'' which tends to show that, in fact, his or her blood-alcohol level, at the time of testing, was not that shown on the certificate, then the certificate is no longer proof of that fact. Therefore, for the Crown to be successful it must prove the accused's blood-alcohol level some other way. Indeed, the Crown may still prove that the blood-alcohol level of the accused at the time of the offence was over 80 mg of alcohol in 100 mL of blood. This ''presumption of accuracy'' relates to the accuracy of the readings at the time of the test, as stated in the certificate of analysis, and is presumed by the operation of s. 25 of the Interpretation Act, in the absence of ''evidence to the contrary''. This is not, however, the presumption at issue in this case. per Iacobucci J. (Lamer C.J.C., Sopinka, Cory and Major JJ. concurring)
-accused charged with having care and control of a motor vehicle while the concentration of alcohol in her blood exceeded 80mg of alcohol in 100mL of blood contrary to s. 253(b) of the Criminal Code
-stopped by police because she was driving in an erratic manner
-failed a roadside screening device test and taken to police station
-breathalyzer machine being used at the time, accused had to wait approx. one hour for her testing session
-while waiting accused made three trips to the washroom
-finally provided breath samples, both produced 180mg of alcohol in 100mL of blood
-at trial Crown introduced a statement from the accused, which she made right after giving the breath samples; where she stated she was an alcoholic and consumed two small plastic bottles of vodka while in the washroom
-accused gave bottles to the police
-at trial Crown relied upon the breathalyzer certificate to make out the offence of "over80"
-neither Crown nor accused called expert evidence and Crwn relied upon presumption in s. 258(1)(c) of the Criminal Code to make out the offence
-trial judge held that the presumption had been rebutted by the evidence of the post-driving drinking' accused was aquitted
-appeal by the Crown to the summary conviction appeal court dismissed
-further appeal by the Crown to the ON CA was allowed and a conviction was entered.
The accused presented evidence at trial of a simulated test that showed that the accused was below the legal limit of 80 milligrams of alcohol in 100 milliliters of blood. At trial, the judge found that the simulation was evidence to the contrary and acquitted the accused. The Crown appealed and it was found that the simulated test was not evidence to the contrary, as the simulation did not test the actual breath of the accused at the time of the alleged offence.
The different results on the second test do not establish the results of the first test were invalid. Rather, they merely produce and anomaly. As it is possible that the reason for the discrepancy between the two tests is that the first test was invalid, the second test is evidence to the contrary.