Case information

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The Respondent was charged with operating a motor vehicle while his ability to operate it was impaired by a quantity of alcohol varying from 92 to 93 mg of alcohol in 100 ml of blood. The evidence at trial included testimony of the two police officers who arrested the accused, the technician's certificate regarding the breathalyser test, testimony of the accused and testimony of an expert chemist.

At trial, the Respondent testified that he was a waiter at the Magnan Tavern in the west end of Montreal. He said that between 11:30 p.m. and 2:30 a.m. he had consumed two large 20 or 22 ounce bottles of beer. The Respondent also called as a witness a chemist who is an expert in forensic toxicology. Based on the Respondent's age and size, the quantity he had consumed over a given period, the time of the arrest and the time of the breathalyser test, the expert concluded that his blood alcohol level would have been 45 mg.

The trial judge did not believe the Respondent's version of the events and accordingly found that the expert evidence had no probative value because it was based on information provided by the accused. Since the Respondent had rebutted neither the presumption of identity provided for in ss. 258(1)(c) and 258(1)(d.1) nor the presumption of accuracy provided for in s. 258(1)(g), the judge of the Municipal Court of Montréal convicted him.

The Superior Court allowed the appeal on the ground that an analysis of the whole of the evidence raised a reasonable doubt as to whether the alcohol in the Respondent's blood was over the permitted limit. The Superior Court held that, even if the Municipal Court did not believe the accused, that was not enough to find an absence of evidence to the contrary. Finally, the Court of Appeal dismissed the appeal on the basis that even if the trial judge did not believe the accused as to the number of drinks he had consumed, the evidence to the contrary could be sufficient if the whole of the evidence raised a reasonable doubt. Forget J.A., dissenting, would have allowed the appeal.