SUPREME COURT OF CANADA
Appeal Heard: April 24, 2025 Judgment Rendered: November 14, 2025 Docket: 41155
Between: Stéphane Larocque Appellant and His Majesty The King Respondent - and - Attorney General of Ontario, Attorney General of British Columbia, Attorney General of Alberta and Criminal Lawyers' Association (Ontario) Interveners Coram: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O'Bonsawin and Moreau JJ.
Joint Reasons for Judgment: (paras. 1 to 43)
Rowe and Moreau JJ. (Wagner C.J. and Karakatsanis, Martin, Kasirer, Jamal and O'Bonsawin JJ. concurring)
Dissenting Reasons: (paras. 44 to 73)
Côté J.
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports .
Stéphane Larocque Appellant
v.
His Majesty The King Respondent
and
Attorney General of Ontario,
Attorney General of British Columbia,
Attorney General of Alberta and
Criminal Lawyers' Association (Ontario) Interveners
Indexed as: R. v. Larocque
2025 SCC 36
File No.: 41155.
2025: April 24; 2025: November 14.
Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O'Bonsawin and Moreau JJ.
on appeal from the court of appeal of new brunswick
Criminal law — Evidence — Impaired driving — Breath alcohol testing —Statutory presumption of accuracy for breath sample analysis results — Target value of alcohol standard — Accused charged with driving with blood alcohol concentration over legal limit — Whether Crown required to disclose and prove at trial target value of alcohol standard used in breath analysis instrument calibration test in order to benefit from statutory presumption of accuracy for breath sample analyses results — Criminal Code, R.S.C. 1985, c. C‑46, ss. 320.31(1)(a), 320.34(1)(b).
The accused was charged with having a blood alcohol concentration equal to or exceeding 80 mg of alcohol in 100 mL of blood within two hours of ceasing to operate a motor vehicle , contrary to s. 320.14(1)(b) of the Criminal Code . At trial, the Crown introduced into evidence and relied on the certificate of the qualified technician and two certificates of two analysts to satisfy the preconditions to the presumption of accuracy in s. 320.31(1)(a) of the Criminal Code . The trial judge convicted the accused, and the summary conviction appeal judge dismissed his appeal.
On further appeal by the accused, the Court of Appeal considered only one of the accused's grounds of appeal, namely that s. 320.31(1)(a) requires the Crown to prove the target value of the alcohol standard in order to rely on the presumption of accuracy. The Court of Appeal dismissed the appeal, holding that it is sufficient for the qualified technician to attest, by certificate or viva voce , that the result of the system calibration check was within 10% of the target value of an alcohol standard that was certified by an analyst. The Court of Appeal also held that s. 320.34(1) of the Criminal Code does not require the prosecution to disclose any information whatsoever about the target value of the alcohol standard used.
Held (Côté J. dissenting): The appeal should be dismissed.
Per Wagner C.J. and Karakatsanis, Rowe , Martin, Kasirer, Jamal, O'Bonsawin and Moreau JJ.: While the Crown must disclose the target value of an alcohol standard that is certified by an analyst as part of its obligation under s. 320.34(1)(b) to disclose the results of the system calibration checks, the Crown need not prove the target value at the time of testing in order to rely on the presumption of accuracy in s. 320.31(1) .
The purpose of the Crown's disclosure obligations in s. 320.34(1) is to ensure that the accused has information sufficient to determine whether the conditions set out in paras. 320.31(1)(a) to (c) have been met. Section 320.34(1)(b) requires the Crown to disclose the "results of the system calibration checks", as those results are necessary to enable the accused to verify the proper operation of the approved instrument, and may also provide a basis for the accused to raise a reasonable doubt as to whether the Crown has proven all the preconditions to the presumption of accuracy. However, limiting disclosure to the results of the system calibration check would only partly fulfill Parliament's intended purpose for the disclosure obligation in s. 320.34(1)(b). As the target value is the set number against which the accused can compare the variable system calibration check result, unless the target value at the time of testing is known, one cannot understand the significance of the result of a system calibration check. Therefore, the target value at the time of testing is inherently tied to the results of the system calibration check and must be disclosed in addition to those results.
While the Crown must disclose the target value, it need not prove it. Parliament did not intend to make the target value itself a statutory precondition. Instead, s. 320.31(1)(a) requires proof that the qualified technician obtained a result that was within 10% of the target value when the qualified technician conducted the system calibration check. Interpreting s. 320.31(1)(a) as requiring proof of the target value at the time of testing is inconsistent with the purpose of the statutory scheme. Proving the target value is an additional technical requirement that is not in line with Parliament's objective to simplify and streamline impaired driving prosecutions. Such an interpretation is also inconsistent with the text and context of s. 320.31(1)(a): it would transform the data points in that provision — the results of the system calibration check and the numerical target value at the time of testing — into preconditions themselves. The relationship between the precondition to the presumption of accuracy in s. 320.31(1)(a) and s. 320.32 is also instructive. Under s. 320.32(1), the certificate of the qualified technician is deemed admissible for the truth of its contents. Therefore, if the qualified technician states that the system calibration check produced a result that was within 10% of the target value, the Crown has proven this precondition.
In the instant case, the Crown introduced into evidence a certificate from the qualified technician, which stated that before each breath sample was obtained, the qualified technician conducted a system calibration check, the result of which was within 10% of the target value of an alcohol standard that was certified by an analyst as being suitable for use. Therefore, the Crown could rely on the presumption of accuracy.
Per Côté J. (dissenting): The appeal should be allowed and an acquittal entered. The target value of an alcohol standard certified by an analyst must be disclosed to the accused and proven in cases where the Crown seeks to rely on the presumption of accuracy. This applies to both the original target value and any corrected target value established by a qualified technician at the time of testing.
There is agreement with the majority that s. 320.34(1)(b) requires the Crown to disclose the target value to the defence. However, the very logic compelling disclosure of the target value to the accused also supports compelling its introduction into evidence in order for the Crown to rely on a statutory shortcut that all but guarantees a conviction. Section 320.31 contemplates a system calibration check, which cannot be done without the target value. This accords not only with the text of the statute, but also with the dual purpose of the amendments, which is to streamline the impaired driving provisions and to increase the reliability of technical and scientific evidence.
If the target value is critical to the system calibration check, it is also critical that it not only be disclosed to the accused but also proven by the Crown should it wish to rely on the statutory presumption. Compliance with the presumption of accuracy is incomplete without the target value. It is a crucial facet of convicting a person beyond a reasonable doubt, and if Parliament intended to relieve the Crown of this obligation, it would have done so more explicitly. The presumption and the serious consequences that flow from its application make ironclad adherence to the set preconditions all the more important. It is for this reason that disclosure alone is insufficient and appropriate introduction into evidence is required. To hold otherwise would be to condone convictions entered without giving full effect to the presumption of innocence and without an accused having had the opportunity to mount a full answer and defence.
At the accused's trial, though two certificates from analysts were introduced into evidence, neither stated the target value of the alcohol standard, and the certificate of the qualified technician contained no information about any corrected target value. Given that the Crown failed to prove the target value of the alcohol standard, it could not rely on the presumption of accuracy.
Cases Cited
By Rowe and Moreau JJ.
Applied: R. v. Rousselle , 2025 SCC 35 ; considered : R. v. Vigneault , 2024 QCCA 793 ; referred to: R. v. Goldson , 2021 ABCA 193 , 406 C.C.C. (3d) 84 ; R. v. MacDonald , 2022 YKCA 7 , 419 C.C.C. (3d) 100 ; R. v. Kelly , 2023 NSPC 19 ; R. v. Cardwell , 2022 BCPC 308 ; R. v. Underhill , 2020 NBPC 3 , 61 M.V.R. (7th) 31 ; R. v. Pelaia , 2019 ONCJ 676 , 58 M.V.R. (7th) 338 ; R. v. Lafontaine , 2020 QCCQ 3575 ; R. v. Le , 2025 ONCJ 86 , 572 C.R.R. (2d) 353 ; R. v. Hepfner , 2022 ONSC 6064 ; R. v. Quesnelle , 2014 SCC 46 , [2014] 2 S.C.R. 390 ; R. v. Wolfe , 2024 SCC 34 .
By Côté J. (dissenting)
R. v. Rousselle , 2025 SCC 35 ; R. v. Flores-Vigil , 2019 ONCJ 192 , 50 M.V.R. (7th) 162 ; R. v. Denis , 2021 MBQB 39 , 77 M.V.R. (7th) 38 ; R. v. Goldson , 2021 ABCA 193 , 406 C.C.C. (3d) 84 ; R. v. MacDonald , 2022 YKCA 7 , 419 C.C.C. (3d) 100 ; R. v. Hepfner , 2022 ONSC 6064 ; Rousselle v. R. , 2024 NBCA 3 , 433 C.C.C. (3d) 31 ; R. v. Vigneault , 2024 QCCA 793 ; R. v. Egger , [1993] 2 S.C.R. 451 ; Vigneault v. R. , 2021 QCCS 3341 .
Statutes and Regulations Cited
Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other acts , S.C. 2018, c. 21.
Canadian Charter of Rights and Freedoms .
Criminal Code , R.S.C. 1985, c. C‑46, ss. 258(1)(f) [rep. 2018, c. 21, s. 14 ], 320.14(1), 320.31 to 320.34.
Authors Cited
Arkansas Department of Health. Intoximeter EC/IR II: Senior Operator Training Manual . Little Rock, Ar.: Office of Alcohol Testing, 2023.
Jokinen, Karen, and Peter Keen. Impaired Driving and Other Criminal Code Driving Offences , 2nd ed. Toronto: Emond, 2023.
APPEAL from a judgment of the New Brunswick Court of Appeal ( Richard C.J. and Baird and LaVigne JJ.A.), 2024 NBCA 4 , 433 C.C.C. (3d) 58 , [2024] N.B.J. No. 3 (Lexis) , 2024 CarswellNB 6 (WL) , affirming the decision of Léger J., 2023 NBKB 72 , [2023] N.B.J. No. 127 (Lexis) , 2023 CarswellNB 443 (WL) , affirming the conviction entered by Landry Prov. Ct. J. Appeal dismissed, Côté J. dissenting.
Marc R. Guignard , K.C. , and Emily A. Cochrane , for the appellant.
Patrick McGuinty and Joanne Park , for the respondent.
James Palangio and Patrick Quilty , for the intervener Attorney General of Ontario.
Rome Carot , for the intervener Attorney General of British Columbia.
Robert Palser , for the intervener Attorney General of Alberta.
Adam Little and Laura Metcalfe , for the intervener Criminal Lawyers' Association (Ontario).
The judgment of Wagner C.J. and Karakatsanis, Rowe, Martin, Kasirer, Jamal, O'Bonsawin and Moreau JJ. was delivered by
Rowe and Moreau JJ. —
I. Overview
[ 1 ] Like its companion case, R. v. Rousselle , 2025 SCC 35 , this appeal relates to the interpretation of s. 320.31(1)(a) of the Criminal Code , R.S.C. 1985, c. C-46. The provision forms part of the evidentiary scheme for proving blood alcohol concentration ("BAC") for purposes of impaired operation offences under s. 320.14(1) of the Criminal Code .
[ 2 ] As in Rousselle , the appellant Mr. Larocque argues that the New Brunswick Court of Appeal erred in interpreting what the Crown must prove to satisfy the precondition to the presumption of accurate breath test results provided for in s. 320.31(1) ("presumption of accuracy"). Mr. Larocque joins Mr. Rousselle in arguing that proof that an alcohol standard used in the system calibration check is certified by an analyst must come from the analyst's own evidence, either by certificate or viva voce . We adopt our reasons in Rousselle which fully dealt with that issue.
[ 3 ] Mr. Larocque also appeals the Court of Appeal's holding in his case that s. 320.31(1)(a) does not require the Crown to prove the target value of an alcohol standard that is certified by an analyst. These reasons address this related, but distinct, issue.
[ 4 ] In light of the principles articulated in Rousselle and the reasons that follow, we conclude that while the Crown must disclose the target value to the accused as required by s. 320.34(1)(b), the Crown does not need to prove the target value at trial to rely on the presumption of accuracy. Parliament did not intend to make the target value itself a precondition, only the fact that the qualified technician conducted a system calibration check, the result of which was within 10% of the target value. Requiring the Crown to prove the target value would amount to reading in an additional technical requirement in s. 320.31(1)(a) in a manner that is contrary to Parliament's intention as regards this precondition to the presumption of accuracy.
II. Facts
[ 5 ] On August 16, 2019, Mr. Larocque was stopped by an RCMP officer at a sobriety checkpoint. The officer formed reasonable grounds to believe that Mr. Larocque had operated a motor vehicle while impaired. Mr. Larocque was arrested and taken to the police station, where he provided two breath samples. An analysis of the samples determined that his BAC was 110 mg of alcohol in 100 mL of blood ("mg percent") and 120 mg percent, respectively. He was charged with having a blood alcohol concentration equal to or exceeding 80 mg percent within two hours of ceasing to operate a motor vehicle, contrary to s. 320.14(1)(b) (an "80 and over" offence).
[ 6 ] At trial, the Crown called three witnesses: the arresting officer, the qualified technician, and another officer who served copies of two certificates of two analysts on Mr. Larocque. The Crown also introduced into evidence the certificate of the qualified technician and two certificates of two analysts.
III. Issue
[ 7 ] The holding in Rousselle applies to all 80 and over cases; it provides one way to satisfy the requirements of s. 320.31(1)(a). However, the statutory interpretation issue in Rousselle addressing whether a qualified technician can give evidence as to the fact that the alcohol standard was "certified by an analyst" has no bearing on the disposition of this appeal. Unlike Rousselle , the Crown in this case produced and relied on two certificates from two analysts and the certificate of the qualified technician to satisfy the preconditions to the presumption of accuracy.
[ 8 ] The sole issue in this appeal is whether the Crown must prove the target value of an alcohol standard as part of the precondition to the presumption of accuracy in s. 320.31(1)(a):
(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;
IV. Decisions Below
A. New Brunswick Provincial Court (Landry J.)
[ 9 ] At trial, Mr. Larocque argued that the Crown had not adduced evidence of the target value and that the qualified technician's evidence concerning the target value of an alcohol standard that is certified by an analyst is inadmissible hearsay. Mr. Larocque also argued that the two certificates of two analysts were inadmissible because they were copies of a copy and prepared pursuant to the old s. 258(1)(f) of the Criminal Code .
[ 10 ] The trial judge declined to follow the Alberta Court of Appeal's decision in R. v. Goldson , 2021 ABCA 193 , 406 C.C.C. (3d) 84. She followed other appellate authorities from across Canada which held that the fact that the alcohol standard was certified by an analyst may be proved through either the evidence of the qualified technician or the analyst. Therefore, the Crown could rely on the presumption of accuracy whether or not the two certificates of two analysts were admissible. The trial judge went on to find that, even if she was wrong about the certificate of the qualified technician, the two certificates of two analysts were admissible to prove that the alcohol standard was certified. The trial judge did not consider whether the Crown had to prove the target value of an alcohol standard.
[ 11 ] Having satisfied the preconditions to the presumption of accuracy, the trial judge convicted Mr. Larocque of having a BAC that was equal to or over 80 mg percent within two hours of operating a motor vehicle, contrary to s. 320.14(1)(b) of the Criminal Code .
B. New Brunswick Court of King's Bench, 2023 NBKB 72 (Léger J.)
[ 12 ] Mr. Larocque appealed his conviction on several grounds. Only one ground of appeal is before this Court — the trial judge's interpretation of s. 320.31(1) of the Criminal Code . On that issue, before the summary conviction appeal judge, Mr. Larocque argued that the Crown could not prove that the alcohol standard was certified through the certificate of the qualified technician.
[ 13 ] The summary conviction appeal judge considered both Goldson and the Yukon Court of Appeal's reasons in R. v. MacDonald , 2022 YKCA 7 , 419 C.C.C. (3d) 100, which had not been released at the time of Mr. Larocque's trial decision. The summary conviction appeal judge agreed with the reasoning in MacDonald , and held that the trial judge did not err in holding that the certificate of the qualified technician was sufficient to prove all preconditions to the presumption of accuracy in s. 320.31(1) . The summary conviction appeal judge did not explicitly address whether the Crown must prove the target value of an alcohol standard.
[ 14 ] The summary conviction appeal judge dismissed the appeal and confirmed Mr. Larocque's conviction.
C. New Brunswick Court of Appeal, 2024 NBCA 4 , 433 C.C.C. (3d) 58 (Richard C.J. and Baird and LaVigne JJ.A.)
[ 15 ] The Court of Appeal considered only one of Mr. Larocque's grounds of appeal: Does s. 320.31(1)(a) of the Criminal Code require the Crown to prove the target value of the alcohol standard in order to rely on the presumption of accuracy?
[ 16 ] A unanimous panel of the Court of Appeal dismissed the appeal. In the Court of Appeal's view, it is sufficient for the qualified technician to attest, by certificate or viva voce , that the result of the system calibration check was within 10% of the target value of an alcohol standard that was certified by an analyst. The qualified technician must know the target value in order to administer the system calibration check. Since s. 320.32(1) deems that the certificate of the qualified technician is evidence of the facts alleged therein, "[n]othing more is required" (para. 47). Therefore, the trial judge did not err in concluding that the certificate of the qualified technician that was introduced into evidence proved all preconditions beyond a reasonable doubt. The Crown was entitled to rely on the presumption of accuracy.
[ 17 ] The Court of Appeal also held that s. 320.34(1) "does not require the prosecution to disclose any information whatsoever about the target value of the alcohol standard used" (para. 49). The target value is "additional information" that the accused can apply to receive through s. 320.34(2) (para. 49).
V. Positions of the Parties
[ 18 ] Mr. Larocque submits that the evidentiary scheme in ss. 320.31 to 320.34 should be interpreted strictly to reconcile the presumption of innocence with the presumption of accuracy. This includes requiring the Crown to prove the target value of an alcohol standard as part of the precondition in s. 320.31(1)(a). Holding that the Crown must satisfy each aspect of the preconditions offsets the fact that the new s. 320.31(1)(a) no longer allows the accused to present evidence to the contrary in challenging the presumption of accuracy.
[ 19 ] Further, in a similar vein to Mr. Rousselle's submissions in the companion case, Mr. Larocque submits that evidence of the target value must come from the analyst rather than the qualified technician. The analyst knows the target value that the alcohol standard should produce because it is the analyst who certifies that the alcohol standard is suitable for use. By contrast, the qualified technician learns the target value only by reviewing, for example, the label on the bottle of alcohol standard. The qualified technician's evidence of target value is, therefore, inadmissible hearsay.
[ 20 ] The Crown submits that Mr. Larocque's approach would read a new technical requirement into s. 320.31(1)(a) that Parliament did not intend to include. The qualified technician's evidence that the results of the system calibration check were within 10% of the target value is sufficient. Put another way, s. 320.31(1)(a) requires proof that the system calibration check produced a result that indicates the approved instrument is functioning properly, not proof of the target value itself.
VI. Analysis
[ 21 ] In determining whether the Crown must prove the target value as part of the precondition in s. 320.31(1)(a), we rely on our analysis set out in Rousselle , including: the summary of breath alcohol testing procedures, the statutory scheme for 80 and over prosecutions, and the principles of statutory interpretation. Further, as in Rousselle , we have taken notice of certain undisputed facts that are relevant background to understanding the statutory interpretation question at issue in this appeal.
A. The Target Value Must Be Disclosed Under Section 320.34(1)(b)
[ 22 ] We begin by addressing whether the Crown must disclose the target value as of the time of testing under s. 320.34(1)(b). This question is directly related to the issue on appeal, and the Court has the benefit of submissions from the parties and reasons from the New Brunswick Court of Appeal.
[ 23 ] We agree with the interveners, the Attorneys General of Alberta and British Columbia, that the target value falls within the Crown's mandatory disclosure obligation in s. 320.34(1)(b) of the Criminal Code . Crown counsel conceded this point at the hearing.
[ 24 ] The purpose of the Crown's disclosure obligations in s. 320.34(1) is to ensure that the accused has "information sufficient to determine whether the conditions set out in paragraphs 320.31(1)(a) to (c) have been met". Section 320.34(1)(b) requires the Crown to disclose the "results of the system calibration checks" to the accused.
[ 25 ] One can readily understand why Parliament requires the Crown to disclose the results of the system calibration check when the evidentiary scheme is considered as a whole. The results of the system calibration checks are necessary to enable the accused to verify the proper operation of the approved instrument. It may also, depending on the circumstances of the case, provide a basis for the accused to raise a reasonable doubt as to whether the Crown has proven all the preconditions to the presumption of accuracy. For example, if the Crown proceeds by producing the certificate of the qualified technician, the results of the system calibration check may form the basis for arguing the likely relevance of cross-examining the qualified technician's assertion that a system calibration was conducted, the result of which was within 10% of the target value under s. 320.32(3).
[ 26 ] However, limiting disclosure to the results of the system calibration check would only partly fulfill Parliament's intended purpose for the disclosure obligation in s. 320.34(1)(b). Section 320.34(1)(b) also requires the target value of an alcohol standard to be disclosed.
[ 27 ] The target value is the "set" number against which the accused can compare the "variable" system calibration check result (K. Jokinen and P. Keen, Impaired Driving and Other Criminal Code Driving Offences (2nd ed. 2023), at p. 341). Unless the target value at the time of testing is known, one cannot understand the significance of the result of a system calibration check (see R. v. Vigneault , 2024 QCCA 793 , at para. 21 ). Unlike the system blank check, where the expected result is set out in the Criminal Code itself — the approved instrument passes if it produces a result under 10 mg percent — the system calibration check asks only whether the result is "within 10% of the target value". In other words, the precondition is not seeking one specific alcohol concentration, but instead a factual determination of whether the approved instrument produces a result within the margins dictated by the target value. For example, if the accused does not know that the target value at the time of testing was 100 mg percent, knowing that a system calibration check produced a result of 97 mg percent — which is within 10% of the target value — is not useful.
[ 28 ] Therefore, the Court of Appeal erred in holding that s. 320.34(1)(b) requires the Crown to disclose the results of the system calibration checks but "does not require the prosecution to disclose any information whatsoever about the target value of the alcohol standard used" (para. 49). In our view, the target value at the time of testing is inherently tied to the results of the system calibration check, and must be disclosed in addition to those results.
[ 29 ] We note, as a related point, that the target value can be disclosed to the accused through several different sources depending on the type of alcohol standard (dry gas or wet bath) used in the system calibration check. Section 320.34(1)(b) imposes an obligation on the Crown to disclose the results of the system calibration check, including the target value, but does not specify how disclosure is to be effected. Unlike, for example, s. 320.34(1)(e), which specifically requires disclosure of "a certificate of an analyst", the Crown does not need to disclose a particular document to comply with its obligation under s. 320.34(1)(b). To that end, the target value does not necessarily need to come from the certificate of the analyst.
[ 30 ] For dry gas alcohol standards, the qualified technician has direct knowledge of the corrected target value, which is based on barometric pressure at the time and place of testing. The baseline sea-level target value for a dry gas alcohol standard (82 mg percent) is normally printed on the gas cylinder used in the system calibration check (see, e.g., R. v. Kelly , 2023 NSPC 19 , at para. 20 ; R. v. Cardwell , 2022 BCPC 308 , at para. 14 ), and would be known only to the analyst who certified the cylinder. However, the target value that is relevant to the system calibration check — the corrected target value — is determined by the approved instrument at the testing location. Therefore, it is the qualified technician who can produce the corrected target value in their certificate. The analyst is not in a position to know the corrected target value for a particular system calibration check. The corrected target value may also appear, at least for the Intox EC/IR II, alongside the results of the system calibration checks on the approved instrument printout ( R. v. Underhill , 2020 NBPC 3 , 61 M.V.R. (7th) 31, at para. 44 ; see also Arkansas Department of Health, Intoximeter EC/IR II: Senior Operator Training Manual (2023), at p. 4-1).
[ 31 ] The target value for a wet bath alcohol standard is a constant 100 mg percent (Jokinen and Keen, at p. 340). While it will be known to the analyst who certifies that the alcohol standard is suitable for use, the qualified technician is also competent, by virtue of the qualified technician's training in this area, to assert that the target value for a wet bath alcohol standard is 100 mg percent (see, e.g., R. v. Pelaia , 2019 ONCJ 676 , 58 M.V.R. (7th) 338, at para. 53 ; R. v. Lafontaine , 2020 QCCQ 3575 , at para. 23 ; R. v. Le , 2025 ONCJ 86 , 572 C.R.R. (2d) 353, at para. 44 ; R. v. Hepfner , 2022 ONSC 6064 , at para. 69 ).
[ 32 ] We also agree with the Court of Appeal that the text of s. 320.31(1)(a) indicates Parliament did not intend that the target value would be something known only to the analyst. The English and French versions of a bilingual statute are equally authoritative; the shared meaning of a provision governs ( R. v. Quesnelle , 2014 SCC 46 , [2014] 2 S.C.R. 390, at para. 53 ). The English text of s. 320.31(1)(a) states "the target value of an alcohol standard that is certified by an analyst". However, the French text, which states " la valeur cible de l'alcool type certifié par un analyste ", is clear that target value is not linked to the analyst's knowledge of an alcohol standard's suitability for use. " [V]aleur cible " (feminine noun) is not grammatically linked to " alcool type " (masculine noun), and, " certifié " is singular, which means it does not apply to both the target value and the alcohol standard (C.A. reasons, at para. 50). This interpretation makes sense viewed in light of our discussion above. It cannot have been Parliament's intention to permit only the analyst to disclose something that the analyst does not know, in the case of a dry gas corrected target value, or something that is known to both the analyst and the qualified technician, in the case of a wet bath target value.
B. Proof of the Target Value Is Not a Precondition to the Presumption of Accuracy
[ 33 ] While the Crown must disclose the target value as part of its obligation under s. 320.34(1)(b) to disclose the results of the system calibration checks, we disagree with Mr. Larocque that the Crown must prove the target value at the time of testing in order to rely on the presumption of accuracy in s. 320.31(1). Parliament did not intend to make the target value itself a statutory precondition. Instead, s. 320.31(1)(a) requires proof that the qualified technician obtained a result that was within 10% of the target value when the qualified technician conducted the system calibration check.
[ 34 ] Interpreting s. 320.31(1)(a) as requiring proof of the target value at the time of testing is inconsistent with the purpose of the An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other acts , S.C. 2018, c. 21. We agree with the Crown that proving the target value is an additional technical requirement that is not in line with Parliament's objective to simplify and streamline 80 and over prosecutions (see Rousselle , at paras. 102-5; R. v. Wolfe , 2024 SCC 34 , at para. 78 ).
[ 35 ] Mr. Larocque's interpretation is also inconsistent with the text and the context of s. 320.31(1)(a). The proposed interpretation would transform the data points in s. 320.31(1)(a) — the results of the system calibration check and the numerical target value at the time of testing — into preconditions themselves. Mr. Larocque submits there is support for his view in Vigneault , where the Quebec Court of Appeal held that affirmation of the target value itself is "not an element of picayune detail", but rather essential to establishing the accuracy of the system calibration check (paras. 25-26).
[ 36 ] We agree with the Quebec Court of Appeal in Vigneault to this extent: the target value is essential to understanding the results of the system calibration check. As discussed above, this is why the target value is to be disclosed under s. 320.34(1)(b). However, it misapprehends Parliament's intention to treat this as a precondition for s. 320.31(1)(a).
[ 37 ] The presumption of accuracy is based on the scientific consensus that when specific procedures are followed, a person's breath alcohol test results accurately reflect their BAC at the time of testing (see s. 320.12). For this reason, s. 320.31(1)(a) refers to two procedures that the qualified technician must perform before obtaining a breath alcohol sample: the system blank check and the system calibration check. In regard to the system calibration check portion of s. 320.31(1)(a), Parliament requires that the Crown prove that the qualified technician conducted the check according to the specific procedures set by the Canadian Society of Forensic Science's Alcohol Test Committee. Parliament has not required that the Crown prove the actual results of the system calibration check or the target value. While those data points must be disclosed, proving them at trial is not a precondition to the presumption of accuracy.
[ 38 ] As discussed in Rousselle , the relationship between the precondition to the presumption of accuracy in s. 320.31(1)(a) and s. 320.32 is also instructive. Under s. 320.32(1), the certificate of the qualified technician is deemed admissible for the truth of its contents. Therefore, if the qualified technician states that the system calibration check produced a result that was within 10% of the target value, the Crown has proven this s. 320.31(1)(a) precondition. The accused may apply to cross-examine the qualified technician on the certificate under s. 320.32(3) if the disclosure — which includes the results of the system calibration check and the target value at the time of testing — shows that the system calibration check was not performed in accordance with the Criminal Code (e.g., the result was not within 10% of the target value, or the printout shows an error occurred during the system calibration check, etc.).
[ 39 ] Therefore, we reject Mr. Larocque's arguments that s. 320.31(1)(a) should be interpreted strictly to preserve the rights of an accused person. There is no ambiguity in what the Crown must establish to prove the precondition to the presumption of accuracy in s. 320.31(1)(a). The Crown may choose to introduce the underlying data from the entire breath alcohol testing process into evidence. However, as a matter of statutory interpretation, the Criminal Code does not require that evidence to be introduced in order to rely on the presumption of accuracy. Where the Crown has proven the preconditions to the presumption of accuracy, a finding of guilt will ordinarily follow, as Parliament intended.
VII. Application
[ 40 ] In this case, the Crown introduced into evidence a certificate from the qualified technician who administered Mr. Larocque's breath alcohol tests. That certificate stated that before each breath sample was obtained, the qualified technician conducted [ translation ] "a system calibration check, the result of which was within 10% of the target value of an alcohol standard that was certified by an analyst as being suitable for use with the Intox EC/IR II" (A.R., tab 13, at p. 98 (emphasis added)). We agree with the Court of Appeal that, by virtue of the hearsay exception in s. 320.32(1), this assertion meets the Crown's onus to prove the relevant portion of the precondition in s. 320.31(1)(a).
[ 41 ] It is not disputed that the Crown has proven the balance of the requirements of s. 320.31(1)(a) and the remaining preconditions beyond a reasonable doubt. Therefore, the courts below did not err in concluding that the Crown could rely on the presumption in s. 320.31(1) that Mr. Larocque's breath tests results are conclusive proof of his BAC at the time of testing.
VIII. Conclusion
[ 42 ] For all these reasons, the Crown is not required to prove the target value of an alcohol standard used in the system calibration check in order to satisfy the precondition to the presumption of accuracy in s. 320.31(1)(a).
[ 43 ] We would dismiss the appeal and affirm Mr. Larocque's conviction.
The following are the reasons delivered by
Côté J. —
I. Overview
[ 44 ] This appeal, like the companion appeal in R. v. Rousselle , 2025 SCC 35 , requires our Court to interpret Parliament's 2018 amendments to the Criminal Code , R.S.C. 1985, c. C‑46, relating to impaired driving. As explained in Rousselle , those amendments created a statutory presumption of accuracy when an approved instrument is used to test blood alcohol concentration. But, part and parcel of that statutory presumption is a critical balancing component: a system calibration check, which provides an assurance of accuracy. In this appeal, we are called upon to determine whether the Crown must not only disclose, but also prove a crucial aspect of a system calibration check — the target value of an alcohol standard that is certified by an analyst — in order to rely on the presumption of accuracy. I am of the view that the target value of an alcohol standard certified by an analyst must be disclosed to the accused and proven in cases where the Crown seeks to rely on the presumption of accuracy. This applies to both the original target value and any corrected target value established by a qualified technician at the time of testing.
[ 45 ] Section 320.31(1) of the Criminal Code sets out the preconditions that the Crown must meet in order to be able to rely on the presumption of accuracy. In essence, if those preconditions are satisfied, the test results may be conclusively relied upon as evidence against the accused. That is because approved instruments used to measure blood alcohol concentration are scientifically reliable and, by design, capable of producing trustworthy results. However, reliance on such results is justified only where the statutory preconditions have been strictly and rigorously met — particularly given that the presumption makes conviction nearly inevitable, imposes criminal liability, and has serious consequences for the accused.
[ 46 ] One of these preconditions, set out in s. 320.31(1)(a), is premised on a system calibration check. Mr. Larocque asserts that as part of that system calibration check, the target value of the alcohol standard used must be proven before the presumption of accuracy can be relied upon. I agree. The target value is critical to a proper calibration procedure and to the verification of the instrument's accuracy . Given the central importance of the target value to testing the reliability of the process, the presumption of innocence and an accused's right to mount a full answer and defence to charges against him or her demand both the disclosure and proof of the target value in order for the presumption of accuracy to be relied upon. The statutory presumption does not eliminate the truth-seeking function of the trial ( R. v. Flores‑Vigil , 2019 ONCJ 192 , 50 M.V.R. (7th) 162, at para. 18 ).
[ 47 ] These reasons are released together with my reasons in the companion appeal, Rousselle , on which I rely for the background regarding the operation of the impaired driving regime, the review of the conflicting appellate jurisprudence, and the overall statutory interpretation analysis in determining the outcome of the present appeal as well. Before moving on to the analysis, I will review the facts and history necessary to understand the only issue brought by this appeal.
II. Facts and Procedural History
A. Facts
[ 48 ] A peace officer pulled Mr. Larocque over and formed reasonable grounds to believe that he had operated a motor vehicle while impaired. After being arrested and taken to the police station, Mr. Larocque provided two breath samples. The first was found to contain 110 mg of alcohol in 100 mL of blood ("mg percent"), and the other 120 mg percent. He was subsequently charged with having operated a motor vehicle with a blood alcohol concentration exceeding 80 mg percent within two hours after ceasing to operate the vehicle.
B. New Brunswick Provincial Court (Landry J.)
[ 49 ] At trial, the Crown introduced as evidence a certificate of a qualified technician and two certificates from two different analysts. The qualified technician — in addition to testifying — attested in his certificate that he performed a system calibration check that received a result within 10% of the target value of an alcohol standard that was certified by an analyst as suitable for that device. Neither of the two analysts testified. Their certificates attested not to certifying the alcohol standard, but rather to the alcohol standard being suitable for use with an approved instrument.
[ 50 ] As it related to whether the preconditions to the presumption of accuracy found within s. 320.31(1) were met, Landry J. relied on the line of authority considered in R. v. Denis , 2021 MBQB 39 , 77 M.V.R. (7th) 38, primarily in holding that s. 320.31(1) required proof that the alcohol standard had been certified by an analyst but that it could be proven by way of the certificate of the qualified technician. There was no consideration of whether the Crown had to prove the target value.
C. New Brunswick Court of King's Bench, 2023 NBKB 72 (Léger J.)
[ 51 ] In interpreting ss. 320.31(1) and 320.32, Léger J. surveyed the jurisprudential divide between R. v. Goldson , 2021 ABCA 193 , 406 C.C.C. (3d) 84, and R. v. MacDonald , 2022 YKCA 7 , 419 C.C.C. (3d) 100. He ultimately opted to follow the line of reasoning adopted in MacDonald to the effect that the legislative amendments did not represent a shift in the law but rather included "innocuous" changes. Relying on MacDonald and R. v. Hepfner , 2022 ONSC 6064 , he concluded that the Crown need not go beyond the certificate of the qualified technician or oral evidence as to the fact of the alcohol standard's certification. Léger J. was satisfied that Landry J. had not made an error in law in concluding that all the preconditions of s. 320.31(1) had been met, particularly given that she had both the certificate of the qualified technician and the certificate of the analyst. There was, again, no consideration of whether the target value had to be proven by the Crown.
D. New Brunswick Court of Appeal, 2024 NBCA 4 , 433 C.C.C. (3d) 58 (Richard C.J. and Baird and La Vigne JJ.A.)
[ 52 ] The Court of Appeal relied on the companion case of Rousselle v. R. , 2024 NBCA 3 , 433 C.C.C. (3d) 31, in rejecting Mr. Larocque's first argument that only hearsay evidence from the qualified technician was tendered to prove that the alcohol standard had been certified by an analyst.
[ 53 ] But Mr. Larocque argued not only that the Crown cannot rely solely on the hearsay evidence of a qualified technician to prove that the alcohol standard has been "certified by an analyst", but also that the statute imposes an obligation on the Crown to prove the target value of the alcohol standard in order to meet the conditions set out in s. 320.31(1). On this point, the Court of Appeal concluded that "the certificate of the qualified technician was admissible as evidence of the facts stated therein, including . . . the fact that the result of the system calibration check was within 10% of the target value of the certified alcohol standard" (para. 54).
[ 54 ] In arriving at this conclusion, the Court of Appeal first canvassed relevant appellate and lower court decisions. In addition to its review of those authorities, it emphasized the importance of the role of the qualified technician, which it outlined at para. 43:
It is accepted that a proper calibration procedure is the key to verifying the accuracy of an approved instrument. To conduct the system calibration check, the qualified technician ascertains that the approved instrument is in proper working order by measuring a sample (alcohol standard) containing a known alcohol concentration (target value). At this preliminary stage, the blood alcohol concentration indicated by the approved instrument is compared with an objective and reliable measurement standard, i.e., the target value of the alcohol standard certified by an analyst. A system calibration check that gives a certain result only makes sense if the target value of the alcohol standard is known . Obviously, the qualified technician must know this target value in order to compare it with the result of the system calibration check. Whether he or she obtains this information from a label attached to the cylinder containing the certified alcohol standard, from a document accompanying the cylinder, from the analyst's certificate or from another source, it is his or her duty to know the target value of the alcohol standard he or she is using to check that the approved instrument is in proper working order. [Emphasis added.]
[ 55 ] The Court of Appeal emphasized that there was no reason to doubt the qualified technician's expertise; nothing in the evidence cast any doubt on the facts alleged in the certificate of the qualified technician, the proper working order of the approved instrument, or its operation (para. 46). It found that "nothing in s. 320.31(1) requires confirmation of the information contained in the qualified technician's certificate" (para. 47). Furthermore, it noted that, although Parliament requires the prosecution to disclose certain information to the accused to enable them to determine whether the conditions in s. 320.31(1) have been met, it does not require the prosecution to disclose any information about the target value of the alcohol standard used: "If Parliament did not consider it necessary to require the disclosure of the target value or to otherwise require that the target value be stated in the analyst's certificate, it cannot have intended to require the prosecution to file an analyst's certificate indicating the target value or to otherwise prove that information" (para. 49).
[ 56 ] In summary, Mr. Larocque's appeal asks whether the Crown is required to disclose and prove the target value of the alcohol standard and how it must go about proving it.
III. Analysis
A. The Target Value Is Key to a Proper Calibration Procedure and to Verification
[ 57 ] The importance of the target value to the calibration procedure and to verification should not be controversial. Its centrality to calibration was recognized in Flores‑Vigil , at para. 30 :
The alcohol standard's usefulness in a calibration procedure depends entirely upon it containing a known concentration of alcohol, which explains Parliament inserting the requirement that the alcohol standard be "certified by an analyst". Calibration by definition requires the use of a known standard, whose value is not in dispute. Certification provides the necessary assurance of the concentration of the standard against which the device will be tested. In this context, the phrase "target value" must refer to the known/actual concentration of alcohol in the alcohol standard, as established through the certification of an analyst. The device's accuracy is only established when the calibration test provides a result that is sufficiently close to this target value. Parliament has thus indicated that successful calibration, within the meaning ordinarily assigned to that term, is a fundamental precondition to the existence of a presumption of accuracy. Read in its ordinary and grammatical sense, in the context of the provision as a whole, and with the obvious intent of parliament, the phrase in question clearly contemplates a process by which the accuracy of a measuring device can be assured by commanding that device to test an alcohol standard that contains a known concentration, so as to ascertain whether or not the device accurately measures the known sample. Certification of that known sample — the alcohol standard — provides the necessary assurance of the known sample's true alcohol concentration. This is the only way to rationally interpret the application and purpose of section 320.31(1).
[ 58 ] My colleagues acknowledge that unless "the target value at the time of testing is known, one cannot understand the significance of the result of a system calibration check" (para. 27). They also acknowledge that the system calibration check is "a factual determination of whether the approved instrument produces a result within the margins dictated by the target value" (para. 27 (emphasis in original)). I agree with my colleagues that the target value is of critical importance to the assessment of the integrity of the system calibration check.
[ 59 ] Healy J.A., writing for the Quebec Court of Appeal in R. v. Vigneault , 2024 QCCA 793 , also recognized the importance of the target value to the integrity of the system calibration check. To be clear, I disagree with Healy J.A.'s acceptance of the reasoning in MacDonald , Rousselle (C.A.), and the decision of the Court of Appeal in this case to the effect that a certificate of a qualified technician can prove that the alcohol standard was certified by an analyst, and I also disagree with his conclusion that evidence of the target value can be furnished by either the qualified technician or the analyst. That said, I agree entirely with his analysis and his conclusion that the Crown must introduce evidence that explicitly refers to the target value of the alcohol standard in order to rely on the presumption of accuracy. At paragraph 25, he states:
. . . only with an affirmation of the target value of the alcohol standard is the evidence of compliance with the presumption of accuracy complete. Without that affirmation, accuracy cannot be presumed. The target value used to certify the standard is what allows the accuracy of the results of the tests administered in the instant case to be established beyond reasonable doubt.
[ 60 ] The significance of the target value was also noted by the Court of Appeal itself: ". . . the qualified technician must know th[e] target value in order to compare it with the result of the system calibration check" (para. 43). Despite recognizing its significance, the Court of Appeal took the position that the Crown need not prove it, or share it with the defence (para. 49).
B. The Presumption of Innocence Demands Disclosure and Introduction Into Evidence of the Target Value
[ 61 ] My colleagues in the majority rightly take issue with the conclusion of the Court of Appeal regarding disclosure and find that s. 320.34(1)(b) does indeed require the Crown to disclose the target value to the defence (para. 28). I find the majority's rationale in support of disclosure compelling; they rightfully cite Vigneault with approval and state that "the target value is essential to understanding the results of the system calibration check" (para. 36). I therefore agree that the Court of Appeal erred in holding that s. 320.34(1)(b) does not require the prosecution to disclose any information about the target value of the alcohol standard used (para. 28).
[ 62 ] I part ways with my colleagues, however, where they find that the very logic compelling disclosure of the target value to the accused does not also support compelling its introduction into evidence in order for the Crown to rely on a statutory shortcut that all but guarantees a conviction (para. 37).
[ 63 ] In order to know that the qualified technician conducted a system calibration check, the result of which was within 10% of the target value of an alcohol standard that was certified by an analyst, one must first know the target value. In effect, the target value is key to the proper calibration procedure because it acts as the "comparator". Where a qualified technician establishes a corrected target value at the time of testing, this value is also a relevant comparator that must be disclosed and proven. Requiring its disclosure under s. 320.34(1) is important, but on its own it is insufficient to meet the preconditions for the presumption of accuracy to operate.
[ 64 ] I agree entirely that the 2018 regime contemplates a calibration verification, which cannot be done without the target value, as Vigneault makes clear. This accords not only with the text of the statute, as Flores‑Vigil emphasizes, but also with the dual purpose of the amendments, which is to streamline the impaired driving provisions and to increase the reliability of technical and scientific evidence.
[ 65 ] If we accept that the target value is critical to the system calibration check, we must also accept that it is critical that it be not only disclosed to the accused but also proven by the Crown should it wish to rely on the statutory presumption. In fact, both the presumption of innocence and the right of a defendant to mount a full answer and defence demand such acceptance.
[ 66 ] I agree with the conclusion reached by Healy J.A. of the Quebec Court of Appeal that evidence of compliance with the presumption of accuracy is incomplete without the target value ( Vigneault , at para. 25). It is a crucial facet of convicting a person beyond a reasonable doubt, and if Parliament intended to relieve the Crown of this obligation, and by extension deprive accused persons of the ability to mount a full answer and defence, it would have done so more explicitly. Healy J.A. was correct when he said the following, at para. 26:
This is not an element of picayune detail when the issue is viewed in its context. The presumption of accuracy is the mechanism that allows the prosecution to prove the central element of a criminal offence. That element marks the difference between a finding of guilt and an acquittal. In this regard the presumption of innocence is maintained or defeated by the presumption of accuracy. The convenience of proof afforded to the prosecution must be interpreted in a manner that reflects the importance of accuracy in the determination of the jeopardy to which an accused person is exposed. In short, while Parliament may seek to simplify the law with respect to the prosecution of offences for impaired driving, it must not do so in a manner that reduces the burden of proof to a paper formality that derives its value solely from hearsay. [Emphasis added.]
[ 67 ] This excerpt underlines the seriousness of the consequences an accused faces when the Crown relies on the presumption of accuracy. Accordingly, our interpretation must be carried out with those serious consequences in mind. Mr. Larocque is right to point to R. v. Egger , [1993] 2 S.C.R. 451, as an impaired driving case where our Court considered the seriousness of these consequences for the accused and took that into account in its interpretation of the statutory provision (A.F., at paras. 42‑43). That case concerned the furnishing of certificates by an analyst and a qualified technician, leading Sopinka J. to write that the interpretation of the provision at issue in that case had to be "approached keeping in mind the accused's right to make full answer and defence" (p. 466). He went on to state that the interpretation must be in accordance, where reasonably possible, with the principle that "the Crown has a duty to disclose to the accused all information reasonably capable of affecting the accused's ability to make full answer and defence" as that obligation had "constitutional underpinnings" stemming from the Canadian Charter of Rights and Freedoms (p. 466).
[ 68 ] Mr. Larocque's arguments accord with the Quebec Court of Appeal's decision in Vigneault , in which it was also held that the principle of strict construction of penal statutes applies and that a "relaxation of the prosecution's burden to prove an essential element of the offence must be strictly construed to avoid an interpretation that would make the prosecution's burden perfunctory" (para. 23). I agree. The overarching goal of the legislation cannot trump the clear intention of Parliament to reinforce the requirements of the evidentiary preconditions of the presumption, or, as Healy J.A. put it, render the Crown's burden "perfunctory". This is not to say that the presumption of accuracy should not be adhered to; rather, we must give effect to the preconditions set out by Parliament, which are premised on a robust system calibration check process to which we must also adhere and to which the target value is critical.
[ 69 ] The presumption of accuracy, and its preconditions set out in s. 320.31(1), cannot be conflated or confused with the disclosure obligations set out in s. 320.34(1). The obligations under the latter should not — and cannot — be seen as a relaxation of the preconditions set out in the former ( Vigneault v. R. , 2021 QCCS 3341 , at para. 35 ).
[ 70 ] I acknowledge that the disclosure of a piece of information, as required by s. 320.34(1), is different than its actual introduction into evidence. Indeed, at an ordinary trial, the Crown may disclose far more material to the accused than it ultimately introduces into evidence. However, in such a situation, contrary to here, the Crown is not relying on the information disclosed to prove the central elements of the offence. It therefore remains critical that the preconditions set forth in s. 320.31(1)(a) be proven ; this includes "the target value of an alcohol standard that is certified by an analyst". This also includes the need to prove any corrected target value determined by the qualified technician at the time of testing.
[ 71 ] As noted by the Court of First Instance in Vigneault , in establishing a statutory presumption, Parliament sought to facilitate the presentation of evidence and considerably reduced an accused's means of defence at the trial stage. The court further noted that the shortcut provided to the Crown did not shift the burden of proof (para. 36). If anything, the shortcut and the serious consequences that flow from its application make ironclad adherence to the set preconditions all the more important. It is for this reason that disclosure alone is insufficient and appropriate introduction into evidence is required. To hold otherwise would be to condone convictions entered without giving full effect to the presumption of innocence and without an accused having had the opportunity to mount a full answer and defence.
IV. Application and Conclusion
[ 72 ] At Mr. Larocque's trial, though there were two certificates from analysts introduced into evidence, neither stated the target value of the alcohol standard. Likewise, the certificate of the qualified technician contained no information about any corrected target value. Given that the Crown failed to prove the target value of the alcohol standard, it cannot rely on the presumption in s. 320.31 of the Criminal Code .
[ 73 ] I would therefore allow the appeal, set aside Mr. Larocque's conviction, and enter an acquittal.
Appeal dismissed, Côté J. dissenting.
Solicitors for the appellant: Guignard Gauvin, Shippagan; The Burke Law Group, Fredericton .
Solicitor for the respondent: Public Prosecution Service of New Brunswick, Fredericton.
Solicitor for the intervener Attorney General of Ontario: Crown Law Office — Criminal, Toronto.
Solicitor for the intervener Attorney General of British Columbia: Criminal Appeals and Special Prosecutions , Victoria.
Solicitor for the intervener Attorney General of Alberta: Alberta Crown Prosecution Service — Appeals and Specialized Prosecutions Office , Edmonton.
Solicitors for the intervener Criminal Lawyers' Association (Ontario): Fedorsen Law, Toronto; Addario Law Group, Toronto.