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Criminal - Impaired Driving (5). R. v. Serkissoon
In R. v. Serkissoon (Ont CA, 2026) the Ontario Court of Appeal allowed a Crown criminal appeal, this brought against acquittals for "impaired driving counts on a directed verdict application" and for "dangerous driving counts after a judge-alone trial."
Here the court reviews the historical and statutory basis of 'impaired driving':b. Statutory Framework
[31] Before dealing with the Crown’s argument, it is helpful to review the history and context of the offence of driving with excess BDC.
[32] Since 1969, the Criminal Code has outlawed driving with a blood alcohol content (“BAC”) of over 80 mg/100 mL: R. v. Rousselle, 2025 SCC 35, 453 C.C.C. (3d) 1, at para. 37.
[33] Parliament enacted various “evidentiary shortcuts” to simplify and streamline impaired driving proceedings: R. v. Alex, 2017 SCC 37, [2017] 1 S.C.R. 967, at para. 2. These evidentiary shortcuts historically provided that, where breath samples were tested via certain approved instruments, the result of that analysis was proof of the accused’s BAC both at the time the sample was taken and at the time the offence was alleged to have been committed, if certain conditions were met and in the absence of certain categories of evidence rebutting the presumption.
[34] In 2018, Parliament passed a comprehensive revision to the driving related provisions in the Criminal Code via An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, S.C. 2018, c. 21. This was a complete overhaul of the Criminal Code’s driving provisions and replaced all the former driving-related offences under a new Part VIII.1 of the Criminal Code: R. v. Wolfe, 2024 SCC 34, 441 C.C.C. (3d) 415, at paras. 11-12; Rousselle, at para. 100.
[35] Two features of this overhaul are important for purposes of this appeal.
[36] First, Parliament implemented new BDC offences, designed to combat drug-impaired driving in advance of cannabis legalization: Department of Justice, Backgrounder for former Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, as enacted, at pp. 7, 25.
[37] The new offence relevant to this appeal is found in s. 320.14(1)(c), which prohibits having a BDC that is equal to or exceeds the amount prescribed by regulation “within two hours after ceasing to operate a conveyance”:(1) Everyone commits an offence who
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(c) subject to subsection (6), has, within two hours after ceasing to operate a conveyance, a blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation[.] [38] According to s. 2 of the Blood Drug Concentration Regulations, SOR/2018-148, the prescribed amount for THC is 5 ng/mL of blood.
[39] This new BDC offence is different in structure than the previous “over 80” provision as it appeared prior to the 2018 amendments. The previous “over 80” offence criminalized operating a motor vehicle and other conveyances with a BAC exceeding 80 mg/100 mL of blood. It is now an offence to have a certain BAC or BDC within two hours of having operated a conveyance. This makes it unnecessary to prove the accused’s BAC or BDC at the time of driving: Rousselle, at para. 100.
[40] Second, Parliament enacted statutory presumptions to facilitate proving this and other related offences. The statutory presumption relevant to this appeal is s. 320.31(2), which provides that “the result of an analysis” made by an “analyst” “is proof” of a person’s BDC at the time the sample was taken, in the absence of evidence that the analysis was conducted improperly: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. [41] “Analyst” is a defined term in s. 320.11:analyst means a person who is, or a person who is a member of a class of persons that is, designated by the Attorney General under subparagraph 320.4(b)(ii) or paragraph 320.4(c). [42] Section 320.4(b)(ii) provides that the Attorney General may designate a person or class of persons as qualified to analyze samples of bodily substances.
[43] The statutory presumption in s. 320.31(2) is an evidentiary shortcut; it is not an element of the offence that the Crown is required to prove. If the preconditions for relying on the statutory presumption are not met, the Crown may still prove the case against the accused in other ways depending on the evidence before the court. As the Supreme Court recently explained in the context of BAC in Rousselle, at para. 48:While the presumption of accuracy functions as an evidentiary shortcut for proving “80 and over” offences, it is not itself an element of the offence. Failure to prove the statutory preconditions beyond a reasonable doubt means that the Crown cannot rely on the presumption to prove an accused’s BAC at the time of testing. However, there may be other avenues for the Crown to prove its case against the accused, depending on the evidence before the court [Emphasis added, citations omitted.] [44] The trial judge in this case determined that the statutory presumption in s. 320.31(2) does not apply to blood samples seized via a s. 487 warrant.
[45] Subsequently, Edwards J. released a decision disagreeing with the trial judge on this point and finding that the statutory presumption does apply to blood samples seized in this way: R. v. Zhou, 2025 ONSC 6043. In reaching a different conclusion from the trial judge here, Edwards J. wrote as follows, at para. 108:I agree with the submissions of the Crown that Serkissoon did not engage in statutory interpretation using the modern approach reading the provision in its ordinary grammatical sense. Rather, it would appear that the court in Serkissoon relied on s. 320.3 of the Code, a provision that does not concern the presumption of accuracy but rather permits testing of samples taken “for the purposes of this part” for either alcohol or drugs both. I agree with the submission of the Crown that Parliament’s purpose in rewriting the presumption of accuracy as set forth in s. 320.31(2) cannot be informed by a different search power. I agree with the submission of the Crown that Parliament’s choice to remove reference to samples “taken pursuant to a demand”, or “taken under” specified sections, must be given effect in interpreting s. 320.31(2). [46] Edwards J. went on to cite the Supreme Court of Canada’s decision in Winko v. British Columbia (Forensic Psychiatric Institute), 1999 CanLII 694 (SCC), [1999] 2 S.C.R. 625, at para. 134, for the principle that Parliament is presumed not to speak in vain.
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[51] I agree with the Crown that the statutory presumption in s. 320.31(2) applies, notwithstanding that the respondent’s blood samples were obtained via a s. 487 warrant. I reach this conclusion by considering the text, context and purpose of s. 320.31(2): Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27; Rousselle, at paras. 80-81. This conclusion is sufficient to allow this ground of appeal.
[52] First, the text of s. 320.31(2) does not contain any qualifying language about how the blood sample was obtained. On its plain language, there is no basis to restrict its applicability to blood samples obtained via a warrant or police demand under Part VIII.1.
[53] Second, the context of s. 320.31(2) supports this interpretation. The trial judge relied on the context of other provisions in Part VIII.1, namely ss. 320.28 and 320.29, to conclude that the statutory presumption in s. 320.31(2) does not apply. Respectfully, I do not see anything in s. 320.3, even when read together with ss. 320.28 and 320.29, that would limit the application of the statutory presumption in s. 320.31(2).
[54] Section 320.3 is non-exclusive. It provides that “[s]amples of a person’s blood that are taken for the purposes of this Part may be analyzed to determine the person’s… blood drug concentration”. It permits samples taken for the purposes of Part VIII.1 to be analyzed to determine blood drug concentration. However, it does not say that only samples taken for the purposes of this Part may be analyzed to determine blood drug concentration.
[55] Moreover, even if s. 320.3 were exclusive, the blood samples in this case were taken “for the purposes of this Part”. While the blood samples were seized using a warrant obtained under a different Part, it is clear that the purpose of the seizure was to analyze the respondent’s blood for the purpose of proving an offence under Part VIII.1. I see no reason to construe s. 320.3 so narrowly as to exclude evidence seized for this purpose.
[56] Third, Parliament must have had some purpose in removing the restriction that was in the previous version of this statutory presumption. For ease of reference, I provide a side-by-side comparison of the statutory presumption pertaining to blood samples in s. 320.31(2), and the previous statutory presumption pertaining to blood samples in s. 258(d), as it appeared before the 2018 amendments came into force.
[57] The relevant statutory presumption pertaining to blood samples, as it appeared before the amendments came into force, was:(d) if a sample of the accused’s blood has been taken under section 254 or 256 or with the accused’s consent, evidence of the result of the analysis of that sample is conclusive proof, in the absence of evidence tending to show that the analysis was performed improperly, that the concentration of alcohol in the accused’s blood both at the time when the sample was taken and at the time when the offence was alleged to have been committed was the concentration determined by the analysis […] [Emphasis added.] [58] The relevant current statutory presumption, as it appears after the amendments came into force, is:(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. [59] As explained by Prof. Sullivan, “[i]t is presumed that amendments to the wording of a legislative provision are made for some intelligible purpose: to clarify the meaning, to correct a mistake, to change the law”: Ruth Sullivan, The Construction of Statutes, 7th Ed. (Toronto: LexisNexis, 2022), at § 23.02.
[60] The same logic applies here. Some meaning must be given to Parliament’s choice to remove the restrictive language in the previous version of the statutory presumption pertaining to blood samples.
[61] The previous version of this statutory presumption began with clear qualifying language limiting its application to blood samples taken under s. 254 (samples demanded by a peace officer), s. 256 (samples obtained via warrant) or with the accused’s consent. The other statutory presumptions in the pre-2018 legislation pertaining to breath samples had similar qualifying language. This language was removed in the new version of the presumption. In my view, Parliament’s choice to remove this qualifying language in s. 320.31(2) should be given meaning. As stated by Edwards J. in Zhou, Parliament’s choice to remove reference to samples taken under specified sections of the Criminal Code must be given effect in interpreting s. 320.31(2): at paras. 107-108.
[62] In sum, looking to the text, context and purpose of s. 320.31(2), the trial judge erred in concluding that s. 320.31(2) does not apply to analyses of blood samples obtained via a s. 487 warrant.
[63] This is sufficient to remit the impaired driving counts for a new trial. The trial judge’s error deprived the Crown of the evidentiary shortcut in s. 320.31(2). Consequently, the trial judge did not assess whether Ms. Chow was a “designated analyst” and did not determine the “result of the analysis” through the proper framework.
[64] The Crown goes further and asks this court to apply the presumption, find that Ms. Chow is an analyst as designated by Parliament, and interpret the “result of an analysis” to mean 5.2 ng/mL on these facts, as opposed to the entire 95% confidence interval of 4.8-5.6 ng/mL. Relying on R. v. Moreau, 1978 CanLII 162 (SCC), [1979] 1 S.C.R. 261, and R. v. Gibson, 2008 SCC 16, [2008] 1 S.C.R. 397, from the breathalyzer context, the Crown submits that Parliament is understood to have taken measurement uncertainty into account in setting the criminal threshold for BAC. The Crown argues that “the same logic applies to the presumption of accuracy in s. 320.31(2) as it relates to the result of Ms. Chow’s analysis of the respondent’s blood”, and thus the result of the analysis for the purpose of the presumption in s. 320.31(2) is 5.2 ng/mL.
[65] I decline to make that finding here. It is more appropriate for the trial judge, applying the proper framework, to assess whether Ms. Chow is a designated analyst and determine the result of her analysis within the meaning of s. 320.31(2). It will also be for the trial judge to grapple with any constitutional issues raised, and this court’s recent decisions in R. v. Kelly, 2025 ONCA 92, 175 O.R. (3d) 577, and R. v. Robertson, 2026 ONCA 281, which were released after the trial judge rendered judgment in this case. These issues were not fully addressed on this appeal, nor were they addressed in the reasons below, given the trial judge’s conclusion that the statutory presumption did not apply. As such, this court is not well situated to make a definitive ruling.
[66] Accordingly, I would allow this ground of appeal and remit the impaired driving counts for a new trial.
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