320.31

Breath samples

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.

Blood samples — concentration when sample taken

(2) The result of an analysis made by an analyst of a sample of a person’s blood is proof of their blood alcohol concentration or their blood drug concentration, as the case may be, at the time when the sample was taken in the absence of evidence tending to show that the analysis was performed improperly.

Evidence not included

(3) Evidence of the following does not constitute evidence tending to show that an analysis of a sample of a person’s blood was performed improperly:

(a) the amount of alcohol or a drug that they consumed;

(b) the rate at which the alcohol or the drug would have been absorbed or eliminated by their body; or

(c) a calculation based on the evidence referred to in paragraphs (a) and (b) of what their blood alcohol concentration or blood drug concentration would have been at the time the sample was taken.

Presumption — blood alcohol concentration

(4) For the purpose of paragraphs 320.‍14(1)‍(b) and (d), if the first of the samples of breath was taken, or the sample of blood was taken, more than two hours after the person 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 subsection (1) or (2), as the case may be, plus an additional 5 mg of alcohol in 100 mL of blood for every interval of 30 minutes in excess of those two hours.

Admissibility of evaluating officer’s opinion

(5) An evaluating officer’s opinion relating to the impairment, by a type of drug that they identified, or by a combination of alcohol and that type of drug, of a person’s ability to operate a conveyance is admissible in evidence without qualifying the evaluating officer as an expert.

Presumption — drug

(6) If the analysis of a sample provided under subsection 320.‍28(4) demonstrates that the person has a drug in their body that is of a type that the evaluating officer has identified as impairing the person’s ability to operate a conveyance, that drug — or, if the person has also consumed alcohol, the combination of alcohol and that drug — is presumed, in the absence of evidence to the contrary, to be the drug, or the combination of alcohol and that drug, that was present in the person’s body at the time when the person operated the conveyance and, on proof of the person’s impairment, to have been the cause of that impairment.

Admissibility of result of analysis

(7) The result of an analysis of a sample of a person’s breath, blood, urine, sweat or other bodily substance that they were not required to provide under this Part may be admitted in evidence even if the person was not warned before they provided the sample that they were not required to do so or that the result of the analysis of the sample might be used in evidence.

Evidence of failure to provide sample

(8) Unless a person is required to provide a sample of a bodily substance under this Part, evidence that they failed or refused to provide a sample for analysis or that a sample was not taken is not admissible and the failure, refusal or fact that a sample was not taken shall not be the subject of comment by any person in any proceedings under this Part.

Admissibility of statement

(9) A statement made by a person to a peace officer, including a statement compelled under a provincial Act, is admissible in evidence for the purpose of justifying a demand made under section 320.‍27 or 320.‍28.

Evidence of failure to comply with demand

(10) In any proceedings in respect of an offence under section 320.‍14, evidence that the accused, without reasonable excuse, failed or refused to comply with a demand made under section 320.‍27 or 320.‍28 is admissible and the court may draw an inference adverse to the accused from that evidence.

Annotations

  • Enacted 18 December 2018 pursuant to section 15, Bill C-46

320.32

Certificates

320.‍32 (1) A certificate of an analyst, qualified medical practitioner or qualified technician made under this Part 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.

Notice of intention to produce certificate

(2) No certificate shall be received in evidence unless the party intending to produce it has, before the trial, given to the other party reasonable notice of their intention to produce it and a copy of the certificate.

Attendance and cross-examination

(3) 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.

Form and content of application

(4) The 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. A copy of the application shall be given to the prosecutor at least 30 days before the day on which the application is to be heard.

Time of hearing

(5) The hearing of the application shall be held at least 30 days before the day on which the trial is to be held.

Certificate admissible in evidence

(6) In proceedings in respect of an offence under subsection 320.‍18(1), the following certificates are evidence of the facts alleged in them without proof of the signature or official character of the person who signed them:

(a) a certificate setting out with reasonable particularity that the person named in it is prohibited from operating a motor vehicle in the province specified in the certificate, signed by the person who is responsible for the registration of motor vehicles in that province or any person authorized by the responsible person to sign it; and

(b) a certificate setting out with reasonable particularity that the person named in it is prohibited from operating a conveyance other than a motor vehicle, signed by the Minister of Transport or any person authorized by him or her to sign it.

Onus

(7) If it is proved that a prohibition under paragraph 320.‍18(1)‍(b) has been imposed on a person and that notice of the prohibition has been mailed to them at their last known address, that person is, beginning on the tenth day after the day on which the notice is mailed, in the absence of evidence to the contrary, presumed to have received the notice and to have knowledge of the prohibition, of the date of its commencement and of its duration.


Annotations

  • Enacted 18 December 2018 pursuant to section 15, Bill C-46

320.33

Printout from approved instrument

320.‍33 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 a person’s breath is evidence of the facts alleged in the document without proof of the signature or official character of the person who signed it.

Annotations

  • Enacted 18 December 2018 pursuant to section 15, Bill C-46

320.34

Disclosure of information

320.‍34 (1) In proceedings in respect of an offence under section 320.‍14, the prosecutor shall disclose to the accused, with respect to any samples of breath that the accused provided under section 320.‍28, information sufficient to determine whether the conditions set out in paragraphs 320.‍31(1)‍(a) to (c) have been met, namely:

(a) the results of the system blank tests;

(b) the results of the system calibration checks;

(c) any error or exception messages produced by the approved instrument at the time the samples were taken;

(d) the results of the analysis of the accused’s breath samples; and

(e) 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.

Annotations

  • Enacted 18 December 2018 pursuant to section 15, Bill C-46

320.35

Presumption of operation

320.‍35 In proceedings in respect of an offence under section 320.‍14 or 320.‍15, if it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a conveyance, the accused is presumed to have been operating the conveyance unless they establish that they did not occupy that seat or position for the purpose of setting the conveyance in motion.


Annotations

  • Enacted 18 December 2018 pursuant to section 15, Bill C-46

320.36

Unauthorized use of bodily substance

320.‍36 (1) No person shall use a bodily substance obtained under this Part for any purpose other than for an analysis under this Part.

Unauthorized use or disclosure of results

(2) No person shall use, disclose or allow the disclosure of the results obtained under this Part of any evaluation, physical coordination test or analysis of a bodily substance, except for the purpose of the administration or enforcement of a federal or provincial Act related to drugs and/or alcohol and/or to the operation of a motor vehicle, vessel, aircraft or railway equipment.

Exception

(3) The results of an evaluation, test or analysis referred to in subsection (2) may be disclosed to the person to whom they relate, and may be disclosed to any other person if the results are made anonymous and the disclosure is made for statistical or research purposes.

Offence

(4) Everyone who contravenes subsection (1) or (2) commits an offence punishable on summary conviction.

Annotations

  • Enacted 18 December 2018 pursuant to section 15, Bill C-46

320.37

Refusal to take sample

320.‍37 (1) No qualified medical practitioner or qualified technician shall be found guilty of an offence by reasononly of their refusal to take a sample of blood from a person for the purposes of this Part if they have a reasonable excuse for refusing to do so.

No liability

(2) No qualified medical practitioner, and no qualified technician, who takes a sample of blood from a person under this Part incurs any liability for doing anything necessary to take the sample that was done with reasonable care and skill.

Annotations

  • Enacted 18 December 2018 pursuant to section 15, Bill C-46

320.38

Regulations

320.‍38 The Governor in Council may make regulations

(a) prescribing the qualifications required for a peace officer to act as an evaluating officer and respecting the training of evaluating officers;

(b) prescribing the blood drug concentration for a drug for the purpose of paragraph 320.‍14(1)‍(c);

(c) prescribing a blood alcohol concentration and a blood drug concentration for a drug for the purposes of paragraph 320.‍14(1)‍(d);

(d) prescribing the blood drug concentration for a drug for the purpose of subsection 320.‍14(4);

(e) prescribing the physical coordination tests to be conducted under paragraph 320.‍27(1)‍(a); and

(f) prescribing the tests to be conducted and procedures to be followed during an evaluation under paragraph 320.‍28(2)‍(a) and the forms to be used in recording the results of the evaluation.

Annotations

  • Enacted 18 December 2018 pursuant to section 15, Bill C-46

320.39

Approval — Attorney General of Canada

320.‍39 The Attorney General of Canada may, by order, approve

(a) a device that is designed to ascertain the presence of alcohol in a person’s blood;

(b) equipment that is designed to ascertain the presence of a drug in a person’s body;

(c) an instrument that is designed to receive and make an analysis of a sample of a person’s breath to determine their blood alcohol concentration; and

(d) a container that is designed to receive a sample of a person’s blood for analysis.

Annotations

  • Enacted 18 December 2018 pursuant to section 15, Bill C-46

320.4

Designation — Attorney General

320.‍4 The Attorney General may designate

(a) a person as qualified, for the purposes of this Part, to operate an approved instrument;

(b) a person or class of persons as qualified, for the purposes of this Part,

(i) to take samples of blood, or

(ii) to analyze samples of bodily substances; and

(c) a person or class of persons as qualified, for the purposes of this Part, to certify that an alcohol standard is suitable for use with an approved instrument.

Annotations

  • Enacted 18 December 2018 pursuant to section 15, Bill C-46