R v Egger

R. v. Egger

[1993] 2 S.C.R. 451
Supreme Court of Canada — Sopinka J. | June 10, 1993

Background

Josef Egger crashed his car on March 24, 1990. Police suspected impairment and demanded blood samples at the hospital. A nurse took two samples — one for police analysis, one supposedly for Egger's independent testing. The investigating officer told Egger about the second sample, but the trial judge found that given Egger's injuries and disorientation, he didn't really understand what was happening.

Two months later, Egger was charged with impaired driving causing bodily harm and driving "over 80." He received a Certificate of Analyst showing his blood alcohol was four times the legal limit, but this certificate made no mention of a second sample. The day before his September trial, he finally received a Certificate of Qualified Technician stating that two samples had been taken and one was available for his testing. By then it was too late — six months had passed, and he'd never requested the second sample because he didn't know it existed.

Issues

1. What must the Crown disclose to an accused, and when, to use the blood alcohol presumption under s. 258(1)(d)?
2. Must an accused actually request and receive the second sample before the presumption becomes available?

The Notice Requirement

The Supreme Court ruled that for the Crown to use the statutory presumption in s. 258(1)(d) of the Criminal Code, the accused must have timely notice of three things: the charges, the Crown's analysis evidence, and the existence of a second sample available for independent testing. This flows from the Crown's disclosure obligations under Stinchcombe and the accused's right to make full answer and defence.

The Court emphasized that since certificates can't be cross-examined, "the accused's only line of defence is to conduct his or her own test of the sample." But this right is meaningless unless the accused knows the sample exists. The Court noted that neither the Certificate of Analyst nor the summons mentioned the second sample, so Egger couldn't make an informed decision about whether to request it within the three-month statutory window.

The proper way to give notice is usually by serving the Certificate of Qualified Technician when samples are taken, but other methods work if proven to the criminal standard. Here, the Crown failed — serving the certificate the day before trial, after the three-month window had closed, was too late.

No Request Required

The Court rejected the argument that an accused must actually request the second sample before the Crown can use the presumption. Such an interpretation would give every accused "a silent veto" over the Crown's use of certificate evidence simply by not requesting the sample. This would defeat the legislative purpose of facilitating impaired driving prosecutions while protecting the accused's rights.

Key Takeaway

The Crown can't use blood alcohol presumptions unless you knew a second sample existed and had reasonable time to request it.

If you're facing "over 80" charges based on blood samples, check when and how you were told about the second sample for independent testing. Late notice can kill the Crown's presumption and force them to prove their case the hard way.