Evidence to the contrary

The expression evidence to the contrary is a Canadian term utilized in the Criminal Code of Canada section 258(1)(c) and Court common law construction and application of section 258 (1)(g).

Section 258(1)(c) CREATES an evidence to the contrary exception to the presumption of identity:

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

(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;

Section 258(1)(g) and the Interpretation Act) create an evidence to the contrary exception to the presumption of accuracy in section 258(1)(g):

(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,

(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;

A person charged in Canada with an over 80 offence May Be able to retain a toxicologist through their counsel to calculate their blood alcohol concentration at the time of driving based on their memory of alcohol consumption. If the evidence of the accused is believed and the toxicologist's expert evidence is accepted, the expert evidence may raise a reasonable doubt that rebuts one or both of these presumptions. Such a defence is known as a Carter defence or evidence to the contrary.