Criminal Code (R.S.C., 1985, c. C-46)

Marginal note:Samples of breath or blood — alcohol

• 320.28 (1) If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person’s ability to operate it was impaired to any degree by alcohol or has committed an offence under paragraph 320.14(1)(b), the peace officer may, by demand made as soon as practicable,

  • (a) require the person to provide, as soon as practicable,

    • (i) the samples of breath that, in a qualified technician’s opinion, are necessary to enable a proper analysis to be made by means of an approved instrument, or

    • (ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to take one, the samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, are necessary to enable a proper analysis to be made to determine the person’s blood alcohol concentration; and

  • (b) require the person to accompany the peace officer for the purpose of taking samples of that person’s breath or blood.

• Marginal note:Evaluation and samples of blood — drugs

  (2) If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person’s ability to operate it was impaired to any degree by a drug or by a combination of alcohol and a drug, or has committed an offence under paragraph 320.14(1)(c) or (d) or subsection 320.14(4), the peace officer may, by demand, made as soon as practicable, require the person to comply with the requirements of either or both of paragraphs (a) and (b):

  • (a) to submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person’s ability to operate a conveyance is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose; or

  • (b) to provide, as soon as practicable, the samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, are necessary to enable a proper analysis to be made to determine the person’s blood drug concentration, or the person’s blood drug concentration and blood alcohol concentration, as the case may be, and to accompany the peace officer for that purpose.

• Marginal note:Samples of breath — alcohol

  (3) An evaluating officer who has reasonable grounds to suspect that a person has alcohol in their body may, if a demand was not made under subsection (1), by demand made as soon as practicable, require the person to provide, as soon as practicable, the samples of breath that, in a qualified technician’s opinion, are necessary to enable a proper analysis to be made by means of an approved instrument.

• Marginal note:Samples of bodily substances

  (4) If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe that one or more of the types of drugs set out in subsection (5) — or that a combination of alcohol and one or more of those types of drugs — is impairing the person’s ability to operate a conveyance, the evaluating officer shall identify the type or types of drugs in question and may, by demand made as soon as practicable, require the person to provide, as soon as practicable,

  • (a) a sample of oral fluid or urine that, in the evaluating officer’s opinion, is necessary to enable a proper analysis to be made to ascertain the presence in the person’s body of one or more of the types of drugs set out in subsection (5); or

  • (b) the samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, are necessary to enable a proper analysis to be made to ascertain the presence in the person’s body of one or more of the types of drugs set out in subsection (5) or to determine the person’s blood drug concentration for one or more of those types of drugs.

• Marginal note:Types of drugs

  (5) For the purpose of subsection (4), the types of drugs are the following:

  • (a) a depressant;

  • (b) an inhalant;

  • (c) a dissociative anaesthetic;

  • (d) cannabis;

  • (e) a stimulant;

  • (f) a hallucinogen; or

  • (g) a narcotic analgesic.

• Marginal note:Condition

  (6) A sample of blood may be taken from a person under this section only by a qualified medical practitioner or a qualified technician, and only if they are satisfied that taking the sample would not endanger the person’s health.

• Marginal note:Approved containers

  (7) A sample of blood shall be received into an approved container that shall be subsequently sealed.

• Marginal note:Retained sample

  (8) A person who takes samples of blood under this section shall cause one of the samples to be retained for the purpose of analysis by or on behalf of the person from whom the blood samples were taken.

• Marginal note:Validity of analysis not affected

  (9) A failure to comply with subsection (7) or (8) does not by itself affect the validity of the taking of the sample or of an analysis made of the sample.

• Marginal note:Release of retained sample

  (10) A judge of a superior court of criminal jurisdiction or a court of criminal jurisdiction shall, on the summary application of the person from whom samples of blood were taken under this section, made within six months after the day on which the samples were taken, order the release of any sample that was retained to the person for the purpose of examination or analysis, subject to any terms that the judge considers appropriate to ensure that the sample is safeguarded and preserved for use in any proceedings in respect of which it was taken.

Marginal note:Warrants to obtain blood samples

• 320.29 (1) A justice may issue a warrant authorizing a peace officer to require a qualified medical practitioner or a qualified technician to take the samples of a person’s blood that, in the opinion of the practitioner or technician taking the samples, are necessary to enable a proper analysis to be made to determine the person’s blood alcohol concentration or blood drug concentration, or both, if the justice is satisfied, on an information on oath in Form 1, that

  • (a) there are reasonable grounds to believe that the person has, within the preceding eight hours, operated a conveyance that was involved in an accident that resulted in bodily harm to themselves or another person or in the death of another person;

  • (b) there are reasonable grounds to suspect that the person has alcohol or a drug in their body; and

  • (c) a qualified medical practitioner is of the opinion that

    • (i) by reason of any physical or mental condition of the person, the person is unable to consent to the taking of samples of their blood, and

    • (ii) the taking of samples of the person’s blood will not endanger their health.

• Marginal note:Form

  (2) A warrant issued under subsection (1) may be in Form 5, varied to suit the case.

• (3) [Repealed, 2022, c. 17, s. 10]

• Marginal note:Duration of warrant

  (4) Samples of blood may be taken from a person under a warrant issued under subsection (1) only during the time that a qualified medical practitioner is satisfied that the conditions referred to in subparagraphs (1)(c)(i) and (ii) continue to exist.

• Marginal note:Copy to person

  (5) If a warrant issued under subsection (1) is executed, the peace officer shall, as soon as practicable, give a copy of it — as a well as a notice in Form 5.1, varied to suit the case — to the person from whom the samples of blood are taken.

• Marginal note:Taking of samples

  (6) Subsections 320.28(7) to (10) apply with respect to the taking of samples of blood under this section.

Marginal note:Testing blood — drug or alcohol

320.3 Samples of a person’s blood that are taken for the purposes of this Part may be analyzed to determine the person’s blood alcohol concentration or blood drug concentration, or both.

Evidentiary Matters

Marginal note:Breath samples

• 320.31 (1) If samples of a person’s breath have been received into an approved instrument operated by a qualified technician, the results of the analyses of the samples are conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made if the results of the analyses are the same — or, if the results of the analyses are different, the lowest of the results is conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made — if

  • (a) before each sample was taken, the qualified technician conducted a system blank test the result of which is not more than 10 mg of alcohol in 100 mL of blood and a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst;

  • (b) there was an interval of at least 15 minutes between the times when the samples were taken; and

  • (c) the results of the analyses, rounded down to the nearest multiple of 10 mg, did not differ by more than 20 mg of alcohol in 100 mL of blood.

• Marginal note:Blood samples — concentration when sample taken

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

• Marginal note:Evidence not included

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

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

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

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

• Marginal note:Presumption — blood alcohol concentration

  (4) For the purpose of paragraphs 320.14(1)(b) and (d), if the first of the samples of breath was taken, or the sample of blood was taken, more than two hours after the person ceased to operate the conveyance and the person’s blood alcohol concentration was equal to or exceeded 20 mg of alcohol in 100 mL of blood, the person’s blood alcohol concentration within those two hours is conclusively presumed to be the concentration established in accordance with subsection (1) or (2), as the case may be, plus an additional 5 mg of alcohol in 100 mL of blood for every interval of 30 minutes in excess of those two hours.

• Marginal note:Admissibility of evaluating officer’s opinion

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

• Marginal note:Presumption — drug

  (6) If the analysis of a sample provided under subsection 320.28(4) demonstrates that the person has a drug in their body that is of a type that the evaluating officer has identified as impairing the person’s ability to operate a conveyance, that drug — or, if the person has also consumed alcohol, the combination of alcohol and that drug — is presumed, in the absence of evidence to the contrary, to be the drug, or the combination of alcohol and that drug, that was present in the person’s body at the time when the person operated the conveyance and, on proof of the person’s impairment, to have been the cause of that impairment.

• Marginal note:Admissibility of result of analysis

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

• Marginal note:Evidence of failure to provide sample

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

• Marginal note:Admissibility of statement

  (9) A statement made by a person to a peace officer, including a statement compelled under a provincial Act, is admissible in evidence for the purpose of justifying a demand made under section 320.27 or 320.28.

• Marginal note:Evidence of failure to comply with demand

  (10) In any proceedings in respect of an offence under section 320.14, evidence that the accused, without reasonable excuse, failed or refused to comply with a demand made under section 320.27 or 320.28 is admissible and the court may draw an inference adverse to the accused from that evidence.

Marginal note:Certificates

• 320.32 (1) A certificate of an analyst, qualified medical practitioner or qualified technician made under this Part is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person who signed the certificate.

• Marginal note:Notice of intention to produce certificate

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

• Marginal note:Attendance and cross-examination

  (3) A party against whom the certificate is produced may apply to the court for an order requiring the attendance of the person who signed the certificate for the purposes of cross-examination.

• Marginal note:Form and content of application

  (4) The application shall be made in writing and set out the likely relevance of the proposed cross-examination with respect to the facts alleged in the certificate. A copy of the application shall be given to the prosecutor at least 30 days before the day on which the application is to be heard.

• Marginal note:Time of hearing

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

• Marginal note:Certificate admissible in evidence

  (6) In proceedings in respect of an offence under subsection 320.18(1), the following certificates are evidence of the facts alleged in them without proof of the signature or official character of the person who signed them:

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

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

• Marginal note:Onus

  (7) If it is proved that a prohibition under paragraph 320.18(1)(b) has been imposed on a person and that notice of the prohibition has been mailed to them at their last known address, that person is, beginning on the tenth day after the day on which the notice is mailed, in the absence of evidence to the contrary, presumed to have received the notice and to have knowledge of the prohibition, of the date of its commencement and of its duration.

Marginal note:Printout from approved instrument

320.33 A document that is printed out from an approved instrument and signed by a qualified technician who certifies it to be the printout produced by the approved instrument when it made an analysis of a sample of a person’s breath is evidence of the facts alleged in the document without proof of the signature or official character of the person who signed it.

Marginal note:Disclosure of information

• 320.34 (1) In proceedings in respect of an offence under section 320.14, the prosecutor shall disclose to the accused, with respect to any samples of breath that the accused provided under section 320.28, information sufficient to determine whether the conditions set out in paragraphs 320.31(1)(a) to (c) have been met, namely:

  • (a) the results of the system blank tests;

  • (b) the results of the system calibration checks;

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

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

  • (e) a certificate of an analyst stating that the sample of an alcohol standard that is identified in the certificate is suitable for use with an approved instrument.

• Marginal note:Application for further disclosure

  (2) The accused may apply to the court for a hearing to determine whether further information should be disclosed.

• Marginal note:Form and content of application

  (3) The application shall be in writing and set out detailed particulars of the information that the accused seeks to have disclosed and the likely relevance of that information to determining whether the approved instrument was in proper working order. A copy of the application shall be given to the prosecutor at least 30 days before the day on which the application is to be heard.

• Marginal note:Time of hearing

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

• Marginal note:For greater certainty

  (5) For greater certainty, nothing in this section limits the disclosure to which the accused may otherwise be entitled.