Her Majesty the Queen v. Suttie [Indexed as: R. v. Suttie]

72 O.R. (3d) 388

[2004] O.J. No. 3345

Docket No. C40183

Court of Appeal for Ontario,

Doherty and Goudge JJ.A. and Cavarzan J. (ad hoc)

August 16, 2004

Criminal law -- Drinking and driving offences -- Driving "over 80" -- Evidence to the contrary -- Trial judge may consider contents of certificate of analysis (absent statutory presumption of accuracy) along with other evidence in deciding to accept or reject evidence to the contrary -- Criminal Code, R.S.C. 1985, c. C-46, s. 258(1)(g).

The accused was charged with driving "over 80". His breathalyzer readings were over 200 mg/100 ml blood. He gave evidence about how much alcohol he drank and the time over which he did so, and called other witnesses in an attempt to corroborate that pattern of drinking. Neither witness was able to support the accused's evidence of the quantity of alcohol consumed. The accused also called a toxicologist who testified that the pattern of drinking described by the accused would yield a blood alcohol level at the time of the offence of 10 to 20 mg/100 ml. The trial judge considered the evidence tendered by the accused to rebut the presumption of accuracy (which is accorded to the blood-alcohol levels in the certificate of analysis if there is no evidence to the contrary). He concluded that he could take into account the contents of the certificate of analysis, although without the presumption of accuracy, in determining whether the accused had raised a reasonable doubt about whether the accused's blood-alcohol level was accurately reflected in the certificate of analysis. The trial judge concluded that no such reasonable doubt was raised. The accused was convicted. On appeal, the summary conviction appeal judge found that the trial judge erred in concluding that he could take into consideration the breathalyzer readings in assessing the accused's "evidence to the contrary". He set aside the conviction and ordered a new trial. The Crown appealed.

Held, the appeal should be allowed.

"Evidence to the contrary" must be defined in relation to what is being presumed. Where the presumption of accuracy is in issue, it is not enough that the evidence to the contrary tends to show that the accused's blood-alcohol level at the time of testing was different from that recorded by the breathalyzer. Rather, the evidence must be capable of raising a doubt as to whether the blood-alcohol level would have been below .08, had the test produced accurate results. Where, as in this case, the defence evidence of alcohol consumption challenges the presumption of accuracy, the trier of fact, in deciding whether to accept or reject the defence "evidence to the contrary", can consider, along with the rest of the evidence, the contents of the breathalyzer certificate as some evidence of the accused's blood alcohol-level at the time of testing. The court cannot treat the certificate as establishing or conclusively proving the facts set out in it, since to do so would be to prematurely apply the presumption in s. 25 of the Interpretation Act, R.S.C. 1985, c. I-21 before the court has determined whether there is evidence to the contrary rebutting the presumption. However, even without the presumption, the readings contained in the certificate are deemed by s. 258(1)(g) of the Criminal Code to constitute some evidence of the accused's blood-alcohol level at the time of testing. It will be the rarest case in which the certificate alone is a sufficient basis to reject otherwise credible defence evidence to the contrary. In this case, the trial judge properly considered the frailties in the defence evidence in the context of the balance of the evidence and then turned to the test results in the certificate as some evidence supporting his conclusion that the defence evidence had to be rejected. He did not err in using the certificate in that way. The accused was properly convicted.

APPEAL by the Crown from a judgment of Durno J., [2003] O.J. No. 2104, [2003] O.T.C. 459 (S.C.J.) allowing the accused's appeal from conviction.

R. v. St. Pierre, 1995 10783 (ON CA), [1995] 1 S.C.R. 791, 22 O.R. (3d) 127n, 1995 135 (SCC), 122 D.L.R. (4th) 619, 178 N.R. 241, 29 C.R.R. (2d) 273, 96 C.C.C. (3d) 385, 36 C.R. (4th) 273, 9 M.V.R. (3d) 1, revg (1992), 1992 7533 (ON CA), 10 O.R. (3d) 215, 76 C.C.C. (3d) 249, 16 C.R. (4th) 220, 39 M.V.R. (2d) 157 (C.A.), revg (1991), 30 M.V.R. (2d) 13 (Ont. Gen. Div.); R. v. Gilbert (1994), 1994 347 (ON CA), 19 O.R. (3d) 724, 92 C.C.C. (3d) 266, 7 M.V.R. (3d) 39 (C.A.), consd

Other cases referred to R. v. Janoff, [2000] O.J. No. 800, [2000] O.T.C. 159 (S.C.J.); R. v. Jedig, [2000] O.J. No. 1120, [2000] O.T.C. 234 (S.C.J.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 253(b), 254(1), 258(1) (c), (d.1), (g) Interpretation Act, R.S.C. 1985, c. I-21, s. 25

Philip Perlmutter, for appellant. Douglas Lent, for respondent.

The judgment of the court was delivered by

[1] GOUDGE J.A.:-- On March 5, 2000, the appellant was charged with having care or control of a motor vehicle while the concentration of alcohol in his blood exceeded 80 mg in 100 ml of blood contrary to s. 253(b) of the Criminal Code, R.S.C. 1985, c. C-46. At his trial, the Crown tendered the certificate of analysis containing the results of the breathalyzer tests which had been administered to him. The appellant tendered evidence of his alcohol consumption that day and the low blood- alcohol level it would have produced, in an attempt to displace the presumption of accuracy which is accorded to that certificate in the absence of evidence to the contrary by s. 258(1)(g) of the Criminal Code together with s. 25(1) of the Interpretation Act, R.S.C. 1985, c. I-21.

[2] The issue before us is whether the court can consider the contents of the certificate of analysis -- absent the statutory presumption of accuracy -- along with the remainder of the evidence in deciding to accept or reject that evidence to the contrary.

[3] The trial judge answered this question in the affirmative, and then concluded that the evidence to the contrary at issue must be rejected. He therefore convicted the appellant. The summary conviction appeal court judge came to the opposite conclusion, set aside the conviction and ordered a new trial. For the reasons that follow, I agree with the trial judge. I would therefore grant leave, allow the appeal and restore the conviction.

Background

[4] The essential facts are straightforward. They are played out in a similar fashion many times each day in the courts of Ontario.

[5] At about 4:50 p.m. on March 5, 2000, the appellant was stopped by Sergeant Krug of the Orangeville Police Service for a seat belt violation. The officer formed a reasonable suspicion that the appellant had alcohol in his body and administered a roadside screening test which the appellant failed. He took the appellant to the station where breathalyzer tests were administered at 5:31 p.m. and 5:51 p.m., yielding readings of 212 mg and 218 mg respectively. The appellant was then charged.

[6] At trial, the Crown called only Sergeant Krug. It also tendered the certificate of analysis but did not call the qualified technician who administered the breathalyzer tests.

[7] The appellant gave evidence of the quantity of alcohol he consumed at the local bar that day and the time over which he did so. In an attempt to corroborate this pattern of drinking, the appellant called his brother and the bartender as witnesses. The former gave vague evidence about the appellant's drinking that day, but admitted that he was not really keeping track of it. The latter said she had no recollection of seeing any symptoms of apparent impairment of the appellant but was unable to support his evidence of the quantity of alcohol consumed. Finally, the appellant called an expert toxicologist who gave evidence that the pattern of drinking described by the appellant would yield a blood-alcohol level at the time of the offence of 10 to 20 mg, well below the statutory limit. While the toxicologist gave no evidence of the appellant's blood- alcohol level at the time the breathalyzer tests were taken, that level could be inferred to be no higher than it was earlier, at the time of the offence.

[8] The trial judge considered the evidence tendered by the appellant to rebut the presumption of accuracy which is accorded to the recordings of the appellant's blood-alcohol level in the certificate if there is no evidence to the contrary. He concluded that, as a matter of law, he could take into account the contents of the certificate of analysis, although without the presumption of accuracy, in determining whether the appellant has raised a reasonable doubt about whether his blood-alcohol level was as stated in the certificate of analysis when the breathalyzer test was taken.

[9] The trial judge then proceeded to review a number of problematic aspects of the appellant's own evidence of his drinking pattern that day, and concluded as follows ([2002] O.J. No. 5493, at paras. 15-17):

These and other elements of the defendant's evidence, his lack of precision with respect to the precise times when he was in the bar and other testimonial factors in connection with the giving of his evidence, caused the court to call into question the essential accuracy of Mr. Suttie's recollections as to the amount that he had to drink on that particular day.

I accept the argument of the defence that such evidence can never be given with precision. However, on careful review of all of the evidence of Mr. Suttie I conclude that this court is not left in reasonable doubt on the point, nor do I accept that his evidence might reasonably be true as to his pattern of drinking. In sum I did not accept the evidence of the defendant on this issue. I am supported in this conclusion by consideration of the levels of the breath readings before the court.

For these reasons the presumption remains intact. As all of the elements of the offence have been proven by the Crown in this matter, the defendant is found guilty of the over 80 charge.

(Emphasis added)

[10] On appeal, the summary conviction appeal judge found that the trial judge erred in concluding that he could take into consideration the breathalyzer readings in assessing the appellant's "evidence to the contrary". In doing so, the summary conviction appeal judge relied on his own decision in R. v. Jedig, [2000] O.J. No. 1120, [2000] O.T.C. 234 (S.C.J.). In Jedig, he reviewed a series of decisions in both the Ontario Court of Justice and the Superior Court of Justice that shared his view and a second series of cases exemplified by R. v. Janoff, [2000] O.J. No. 800, [2000] O.T.C. 159 (S.C.J.) that reached the opposite conclusion. He concluded that the correct view is that a trial judge cannot consider the contents of the certificate in assessing the evidence to the contrary called by the accused.

[11] He explained it this way at para. 28 of Jedig:

Can a trial judge rely upon the accuracy of the station readings which are being inferentially attacked to determine if the "evidence to the contrary" displaces the presumption? I agree with Mr. Daley's submission, to do so would be the ultimate in circular reasoning. . . . If the presumption of accuracy is being challenged, directly or indirectly, that presumption cannot be relied upon in assessing the evidence to the contrary. If the presumption cannot be relied upon for the "facts alleged in the certificate" I do not see how a court can rely on one fact from the certificate, that the accused had alcohol in his or her system at the station.

[12] Having found that the trial judge erred, he ordered that the appellant receive a new trial because he was not persuaded that a conviction would inevitably have resulted had the trial judge not relied on the breathalyzer readings in the certificate in rejecting the appellant's evidence.

[13] The Crown comes to this court requesting that leave be granted, the appeal be allowed and the conviction at trial restored.

Analysis

[14] Where the Crown seeks to prove a charge of "over .08" by relying on the certificate of a qualified breathalyzer technician setting out the results of the analysis of the breath samples taken by that technician, it has two evidentiary problems. First, the Crown must show that the result reported in the certificate accurately reflects the result of the analysis of the samples done by the breathalyzer machine. Second, the Crown must prove that the driver's blood- alcohol level at the time he or she was driving, some short time before the test was administered, was over .08.

[15] In R. v. St. Pierre, 1995 135 (SCC), [1995] 1 S.C.R. 791, 122 D.L.R. (4th) 619, revg (1992), 1992 7533 (ON CA), 10 O.R. (3d) 215, 76 C.C.C. (3d) 249 (C.A.), the Supreme Court of Canada described in detail the evidentiary scheme established in the Criminal Code to assist the Crown in clearing the two evidentiary hurdles described above. In doing so, the Supreme Court of Canada adopted the analysis of Arbour J.A., who had dissented in this court. She described two statutory evidentiary presumptions, labelling one the presumption of accuracy and the other, the presumption of identity. Arbour J.A. also discussed how these presumptions could be rebutted by "evidence to the contrary". Both presumptions identified by Arbour J.A. had two parts. Each declares a document to be admissible as evidence of certain facts and each declares that the document proved those facts absent "evidence to the contrary".

[16] The presumption of accuracy permits the Crown to prove the accused's blood-alcohol level at the time the breathalyzer test was administered without calling a qualified breathalyzer technician. According to this presumption, the lowest result of the analyzed samples reported in the certificate provided by the qualified breathalyzer technician is presumed to accurately reflect the blood-alcohol level of the accused at the time the test was administered, absent evidence to the contrary. This presumption is the product of s. 258(1)(g) of the Code, which makes the certificate admissible, and s. 25(1) of the Interpretation Act, which makes the certificate presumptive proof of those facts absent evidence to the contrary. The provisions read:

258(1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or in any proceedings under subsection 255(2) or (3),

(g) 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

(i) 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,

(ii) the results of the analyses so made, and

(iii) if the samples were taken by the technician,

(A) [not proclaimed]

(B) the time when and place where each sample and any specimen described in clause (A) was taken, and

(C) that each sample was received from the accused directly into an approved container or into an approved instrument operated by the technician,

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(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.

[17] The consequence of these sections is twofold. First, the certificate is admissible as evidence of the facts stated in it without the need to call a qualified breathalyzer technician. This serves as a statutory exception to the hearsay rule. In effect, it makes the written statement of the qualified breathalyzer technician admissible as some evidence of the truth of the assertions in the certificate. These include that two breath samples were taken at the specified time and place; that the samples were analyzed by an approved instrument as defined in s. 254(1) of the Code; that the technician had ascertained the instrument to be in proper working order; and what the results were of the two analyses.

[18] The second consequence is that these facts are deemed to be established or conclusively proven in the absence of any evidence to the contrary.

[19] The second presumption identified by Arbour J.A. and referred to by her as the presumption of identity is created by s. 258(1)(c) of the Code. Under this provision, it is presumed, in the absence of evidence to the contrary, that the lowest of the blood-alcohol readings referred to in the certificate provided by the breathalyzer operator is identical to the accused's blood-alcohol level at the time of the offence. This presumption avoids the need for the Crown to call expert evidence in every case as to the accused's blood-alcohol level when he or she was driving based on an extrapolation from the results of the breathalyzer test administered up to two hours after the driving occurred. Section 258(1)(c) reads:

258(1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or in any proceedings under subsection 255(2) or (3),

(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if

(i) [not in force]

(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the sample were taken,

(iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and

(iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,

evidence of the results of the analyses so made is, in the absence of evidence to the contrary, proof that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed was, where the results of the analyses are the same, the concentration determined by the analyses and, where the results of the analyses are different, the lowest of the concentrations determined by the analyses[.]

[20] St. Pierre also addressed the nature of "evidence to the contrary" sufficient to rebut each of these presumptions. The Supreme Court made clear that evidence to the contrary must be defined in relation to what is being presumed. In other words, since the two presumptions are different, different evidence will be required to rebut each. In either case, however, to rebut the presumption, the evidence must tend to show that the fact which the presumption would otherwise establish is false. It must at least raise a reasonable doubt about the fact to be presumed to qualify as "evidence to the contrary".

[21] The presumption of identity is displaced if there is evidence accepted by the court that tends to show that the blood-alcohol level of the accused was different at the time of the breathalyzer test than at the time of the driving. For example, as in R. v. St. Pierre, evidence that an accused consumed alcohol after she was driving, but before the test was administered, could rebut the presumption of identity. To rebut this presumption, the evidence need not tend to show that the accused's blood-alcohol level at the time he or she was driving was below .08, but need only tend to show that the blood-alcohol level was different at the time of driving than at the time the test was administered. [See Note 1 at the end of the document]

[22] Rebuttal of the presumption of identity does not affect the presumption of accuracy. The Crown can still rely on the certificate to prove the blood-alcohol level at the time the test was administered. If the presumption of identity is rebutted, however, the Crown must call other evidence relating the breathalyzer reading back to the point in time when the accused was driving a motor vehicle.

[23] Where the presumption of accuracy is in issue, it is not enough that the evidence to the contrary tends to show that the accused's blood-alcohol level at the time of testing was different from that recorded by the breathalyzer. Rather, the evidence must be capable of raising a doubt as to whether the blood-alcohol level would have been below .08, had the test produced accurate results. The Supreme Court put it this way at para. 48 of St. Pierre:

When an accused seeks to rebut the presumption of accuracy, as contained in s. 258(1)(g) and s. 25 of the Interpretation Act, it does not matter that they are able to prove that their actual blood alcohol level should have been .150 instead of the .200 as recorded on the breathalyzer. This is immaterial as far as the commission of the offence is concerned. This is why it is well established that, in order to rebut this presumption, the accused must adduce or point to evidence which tends to show that his or her blood alcohol level was actually under .08.

[24] Where, as in this case, the defence evidence of alcohol consumption is treated as challenging the presumption of accuracy of the blood-alcohol levels recorded in the certificate of analysis, the question is: In deciding whether to accept or reject the defence "evidence to the contrary", can the trier of fact include for consideration with the rest of the evidence the contents of the breathalyzer certificate as some evidence of the accused's blood-alcohol level at the time of testing? The Crown contends that this question has been affirmatively answered by this court in R. v. Gilbert (1994), 1994 347 (ON CA), 19 O.R. (3d) 724, 92 C.C.C. (3d) 266 (C.A.). The respondent contends that Gilbert has been overtaken by St. Pierre. I will first address the question without reference to Gilbert.

[25] In my view, the relevant legislative provisions compel an affirmative answer to the question and the respondent offers no reason in principle to reach a contrary conclusion.

[26] The relevant legislative provisions are straightforward. The primary one is s. 258(1)(g). To repeat, it says this.

258(1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or in any proceedings under subsection 255(2) or (3),

. . . . .

(g) 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

(i) 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,

(ii) the results of the analyses so made, and

(iii) if the samples were taken by the technician,

(A) [not proclaimed]

(B) the time when and place where each sample and any specimen described in clause (A) was taken, and

(C) that each sample was received from the accused directly into an approved container or into an approved instrument operated by the technician,

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[.]

(Emphasis added)

[27] For this purpose the important point is that the provision declares that the breathalyzer certificate is evidence of the facts alleged in it. This includes the blood- alcohol readings of the accused recorded by the breathalyzer. Because of s. 25 of the Interpretation Act, the certificate is not conclusive evidence of these facts unless there is an absence of evidence to the contrary. But the certificate remains some evidence of those facts. That evidence is before the trier of fact equally with the other evidence tendered in the proceedings, without legislative constraint on its use. To conclude that the contents of the certificate of analysis constitute evidence for every purpose except that of evaluating the evidence tendered by the defence as evidence to the contrary is to add a legislative limitation to s. 258(1)(g) that Parliament did not provide.

[28] The respondent's argument in principle reflects the approach taken in Jedig and the line of cases it represents. He argues that to permit the trier of fact to consider the contents of the certificate to determine if there is evidence to the contrary to displace the presumption of accuracy is to engage in circular reasoning. He says that it gives to the readings in the certificate a presumptive accuracy which is then used to reject the evidence to the contrary, thereby giving the contents of the certificate the presumptive accuracy it has already, in effect, been accorded.

[29] I do not agree with this argument. Where the accused challenges the accuracy of the blood-alcohol readings in the certificate by calling evidence tending to show that his or her blood-alcohol level at the time of testing must have been below .08, s. 258(1)(g) permits the court to consider the certificate as some evidence of the facts contained in it in determining whether to accept or reject the accused's "evidence to the contrary".

[30] To treat the certificate as some evidence of the facts contained in it is not to give it the presumptive effect of establishing those facts. The certificate is merely some hearsay evidence that a qualified breathalyzer technician conducted two tests of the accused with an approved device which produced the blood-alcohol results set out in the certificate. The court simply considers this together with the other evidence before it in deciding whether to accept or reject the tendered evidence to the contrary.

[31] It is true that in doing so the court can treat the certificate as no more than some evidence of the facts set out in it. The court cannot treat the certificate as establishing or conclusively proving those facts, since to do so would be to prematurely apply the presumption in s. 25 of the Interpretation Act before the court has determined whether there is evidence to the contrary rebutting the presumption. However, even without the presumption, the readings contained in the certificate are deemed by s. 258(1)(g) to constitute some evidence of the accused's blood-alcohol level at the time of testing.

[32] There is no doubt that weighing the hearsay evidence contained in the certificate of analysis against the viva voce evidence of the defence tending to show a blood-alcohol level below .08 at the time of testing presents a challenge because the evidence in the certificate comes to the court in documentary form which must be weighed against live evidence. Although it is not necessary that they do so, it would not be surprising if triers of fact proceeded as the trial judge did here by focusing first on a careful examination of the viva voce defence evidence and its inherent strengths and weaknesses in the context of the balance of the evidence apart from the certificate, and only then turning to consider the contents of the certificate, in reaching a conclusion about whether to accept or reject the tendered evidence to the contrary.

[33] Moreover, in my view, it will be the rarest case in which the certificate alone is a sufficient basis to reject otherwise credible defence evidence [to] the contrary. If there is nothing in either the balance of the evidence or the defence evidence itself to undermine the latter in any way, to reject it only because of the contents of the certificate risks the court wrongly according premature presumptive effect to the certificate, either in its own reasoning process or in the result. Neither accords with Parliament's intent in s. 258(1)(g) of the Code and s. 25 of the Interpretation Act, that in the context of conflicting evidence, the certificate should not constitute conclusive proof of its contents.

[34] Nor do I think that anything said by this court in Gilbert or about Gilbert in St. Pierre supports the contention that the trial judge cannot consider the breathalyzer results along with the rest of the evidence in determining whether the accused has rebutted the presumption of accuracy.

[35] In Gilbert, the defence led evidence, similar to the evidence led in this case, of the amount of alcohol consumed by the respondent before he was stopped by the police and expert evidence as to what his blood-alcohol concentration would have been at the time he was driving his vehicle based on the evidence of his alcohol consumption. According to the expert, the accused's blood-alcohol concentration would have been below the legal limit at the relevant time.

[36] In Gilbert, the court characterized this evidence as a challenge to the presumption in s. 258(1)(c) now referred to as the presumption of identity. This is a correct characterization in the sense that the defence contended that the blood-alcohol level identified in the certificate of analysis was not the same as the level at the time the accused was driving because the level revealed by the analysis was inaccurate.

[37] Gilbert was decided before the Supreme Court of Canada adopted the analysis and terminology of Arbour J.A. in dissent in R. v. St. Pierre. According to that analysis and terminology, the presumption in s. 258(1)(c) is challenged where the breathalyzer results are accepted, but it is contended that they do not accurately reflect the blood-alcohol level at the time the accused was driving. In my view, challenges to the accuracy of the breathalyzer results themselves are, on the approach adopted in St. Pierre, attacks on the presumption of accuracy in s. 258(1)(g), and not attacks on the presumption of identity in s. 258(1)(c).

[38] After St. Pierre, I think Gilbert must be understood as a case where the presumption of accuracy was challenged. Read in this light, I see no error in the analysis found in Gilbert. Specifically, where the accuracy of the breathalyzer tests are challenged, I agree with the observation in Gilbert at p. 724 O.R., p. 280 C.C.C. that:

In the determination of whether to accept the tendered evidence to the contrary, the trier of fact should take into account all of the evidence, including the breathalyzer results absent the statutory presumption.

(Emphasis added)

[39] In R. v. Jedig, supra, at para. 20, the court interpreted Gilbert as holding that a trial judge could rely on "the presumption of accuracy in assessing the evidence to the contrary". Jedig went on to hold that relying on the presumption of accuracy in assessing whether evidence rebuts that presumption amounts to assuming the operation of the presumption in weighing evidence intended to rebut the operation of the presumption.

[40] I do not read Gilbert as indicating that a trial judge can rely on the presumption of accuracy in assessing the evidence to the contrary. Instead, as indicated in the passage quoted above, the trial judge can consider the breathalyzer results "absent the statutory presumption" as part of the total evidentiary picture in determining whether there is "evidence to the contrary". As indicated above, this use is consistent with s. 258(1)(g).

[41] In this case, the approach mandated by the legislation that I have described was the one followed by the trial judge. In assessing the presumption of accuracy and whether there was evidence to the contrary tending to show that the respondent's blood-alcohol level at the time of testing was below .08 despite what the certificate said, the trial judge properly considered the frailties in the defence evidence in the context of the balance of the evidence and then turned to the test results in the certificate as some evidence supporting his conclusion that the defence evidence must be rejected. He did not err in using the certificate in this way.

[42] With the rejection of the tendered evidence to the contrary, the certificate was taken to establish the respondent's blood-alcohol level at the time of testing and, pursuant to s. 258(1)(c), at the time of the offence as well.

[43] The respondent was therefore properly convicted.

[44] I would therefore grant leave, allow the appeal, set aside the order for a new trial and restore the conviction.

Appeal allowed.

Notes

Note 1: Following this holding in St. Pierre, s. 258(1)(d.1) of the Criminal Code was enacted.