Criminal Code

Marginal note:Proceedings under section 255

• 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),

  • (a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, vessel or aircraft or any railway equipment or who assists in the operation of an aircraft or of railway equipment, the accused shall be deemed to have had the care or control of the vehicle, vessel, aircraft or railway equipment, as the case may be, unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment, as the case may be;

  • (b) the result of an analysis of a sample of the breath or blood of the accused (other than a sample taken pursuant to a demand made under subsection 254(3)) or of the urine or other bodily substance of the accused may be admitted in evidence notwithstanding that, before the accused gave the sample, he was not warned that he need not give the sample or that the result of the analysis of the sample might be used in evidence;

  • (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 samples 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;

  • (d) where a sample of the blood of the accused has been taken pursuant to a demand made under subsection 254(3) or otherwise with the consent of the accused or pursuant to a warrant issued under section 256, if

    • (i) at the time the sample was taken, the person taking the sample took an additional sample of the blood of the accused and one of the samples was retained, to permit an analysis thereof to be made by or on behalf of the accused and, in the case where the accused makes a request within six months from the taking of the samples, one of the samples was ordered to be released pursuant to subsection (4),

    • (ii) both samples referred to in subparagraph (i) were taken as soon as practicable after the time when the offence was alleged to have been committed and in any event not later than two hours after that time,

    • (iii) both samples referred to in subparagraph (i) were taken by a qualified medical practitioner or a qualified technician under the direction of a qualified medical practitioner,

    • (iv) both samples referred to in subparagraph (i) were received from the accused directly into, or placed directly into, approved containers that were subsequently sealed, and

    • (v) an analysis was made by an analyst of at least one of the samples that was contained in a sealed approved container,

    evidence of the result of the analysis 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 the concentration determined by the analysis or, where more than one sample was analyzed and 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;

  • (d.1) where samples of the breath of the accused or a sample of the blood of the accused have been taken as described in paragraph (c) or (d) under the conditions described therein and the results of the analyses show a concentration of alcohol in blood exceeding eighty milligrams of alcohol in one hundred millilitres of blood, evidence of the result of the analyses is, in the absence of evidence tending to show that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed did not exceed eighty milligrams of alcohol in one hundred millilitres of blood, proof that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed exceeded eighty milligrams of alcohol in one hundred millilitres of blood;

  • (e) a certificate of an analyst stating that the analyst has made an analysis of a sample of the blood, urine, breath or other bodily substance of the accused and stating the result of that analysis 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;

  • (f) a certificate of an analyst stating that the analyst has made an analysis of a sample of an alcohol standard that is identified in the certificate and intended for use with an approved instrument and that the sample of the standard analyzed by the analyst was found to be suitable for use with an approved instrument, is evidence that the alcohol standard so identified is suitable for use with an approved instrument without proof of the signature or the official character of the person appearing to have signed the certificate;

  • (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 in force]

      • (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;

  • (h) where a sample of the blood of the accused has been taken pursuant to a demand made under subsection 254(3) or otherwise with the consent of the accused or pursuant to a warrant issued under section 256,

    • (i) a certificate of a qualified medical practitioner stating that

      • (A) the medical practitioner took the sample and that before the sample was taken he was of the opinion that the taking of blood samples from the accused would not endanger the life or health of the accused and, in the case of a demand made pursuant to a warrant issued pursuant to section 256, that by reason of any physical or mental condition of the accused that resulted from the consumption of alcohol, the accident or any other occurrence related to or resulting from the accident, the accused was unable to consent to the taking of his blood,

      • (B) at the time the sample was taken, an additional sample of the blood of the accused was taken to permit analysis of one of the samples to be made by or on behalf of the accused,

      • (C) the time when and place where both samples referred to in clause (B) were taken, and

      • (D) both samples referred to in clause (B) were received from the accused directly into, or placed directly into, approved containers that were subsequently sealed and that are identified in the certificate,

    • (ii) a certificate of a qualified medical practitioner stating that the medical practitioner caused the sample to be taken by a qualified technician under his direction and that before the sample was taken the qualified medical practitioner was of the opinion referred to in clause (i)(A), or

    • (iii) a certificate of a qualified technician stating that the technician took the sample and the facts referred to in clauses (i)(B) to (D)

    is evidence of the facts alleged in the certificate without proof of the signature or official character of the person appearing to have signed the certificate; and

  • (i) a certificate of an analyst stating that the analyst has made an analysis of a sample of the blood of the accused that was contained in a sealed approved container identified in the certificate, the date on which and place where the sample was analyzed and the result of that analysis is evidence of the facts alleged in the certificate without proof of the signature or official character of the person appearing to have signed it.

• Marginal note:No obligation to give sample except as required under section 254

  (2) No person is required to give a sample of urine or other bodily substance for analysis for the purposes of this section except breath or blood as required under section 254, and evidence that a person failed or refused to give such a sample or that such a sample was not taken is not admissible nor shall such a failure or refusal or the fact that a sample was not taken be the subject of comment by any person in the proceedings.

• Marginal note:Evidence of failure to comply with demand

  (3) In any proceedings under subsection 255(1) in respect of an offence committed under paragraph 253(a) or in any proceedings under subsection 255(2) or (3), evidence that the accused, without reasonable excuse, failed or refused to comply with a demand made to him by a peace officer under section 254 is admissible and the court may draw an inference therefrom adverse to the accused.

• Marginal note:Release of specimen for testing

  (4) A judge of a superior court of criminal jurisdiction or a court of criminal jurisdiction shall, on the summary application of the accused made within six months from the day on which samples of the blood of the accused were taken, order the release of one of the samples for the purpose of an examination or analysis thereof, subject to such terms as appear to be necessary or desirable to ensure the safeguarding of the sample and its preservation for use in any proceedings in respect of which it was retained.

• Marginal note:Testing blood for presence of drugs

  (5) Where a sample of blood of an accused has been taken pursuant to a demand made under subsection 254(3) or otherwise with the consent of the accused or pursuant to a warrant issued under section 256, the sample may be tested for the presence of drugs in the blood of the accused.

• Marginal note:Attendance and right to cross-examine

  (6) A party against whom a certificate described in paragraph (1)(e), (f), (g), (h) or (i) is produced may, with leave of the court, require the attendance of the qualified medical practitioner, analyst or qualified technician, as the case may be, for the purposes of cross-examination.

• Marginal note:Notice of intention to produce certificate

  (7) No certificate shall be received in evidence pursuant to paragraph (1)(e), (f), (g), (h) or (i) unless the party intending to produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate.