In Dion Henry Alex v. Her Majesty the Queen, the majority of the Supreme Court saw no reason to overrule its own decision in Rilling v. The Queen, .
“The text of ss. 258(1)(c) and 258(1)(g) of the [Criminal] Code does not support the requirement of a lawful demand for the evidentiary shortcuts to apply,” Justice Michael Moldaver wrote, with Justices Andromache Karakatsanis, Richard Wagner, Clément Gascon and Suzanne Côté concurring.
“First, Parliament could easily have specified that the sample had to be taken ‘pursuant to a “lawful” demand’ as it has done elsewhere in the Code. Second, this interpretation is in tension with the structure of the provisions, which is comprised of an opening part followed by a specific list of preconditions that must be met, all of which bear directly on the reliability of the evidentiary shortcuts.”
Over the years, Parliament has attempted to simplify and streamline the trial process in impaired driving cases, and in 1969 it introduced evidentiary “shortcuts” into the Criminal Code, now found in ss. 258(1)(c) and 258(1)(g). These shortcuts permit the Crown to establish an accused’s blood-alcohol concentration at the time of the alleged offence by filing a certificate recording the accused’s breath readings.
“In the case of ‘over 80’ charges, this relieves the Crown from having to call two witnesses at every trial: (1) a breath technician to attest to the accuracy of the breath readings; and (2) an expert toxicologist to relate the readings back to the time when the alleged offence occurred,” Moldaver wrote.
But defence counsel argue that a person is penalized for complying with a police officer’s demands, even when unlawful, because the application of Rilling has treated compliance as a waiver of rights or agreement to be subject to unlawful interference.
In the 5-3 Supreme Court decision in Rilling nearly four decades ago, even if a demand for a breath sample is not made on reasonable grounds, “that breath evidence still applied if the accused complied,” says Michael Welsh of Mott Welsh & Associates in Penticton, B.C., who represented the appellant in the case.
“If the accused didn’t comply with the demand, then the accused had a defence” against evidence presented in court, Welsh told Legal Feeds. “We argued that this negated the wording, the intent of Parliament,” which would assume a lawful demand had been made, he says.
In this case, the appellant had failed a roadside screening device test after being stopped by police; he provided samples of his breath at the police station, which registered readings significantly over the legal limit, and was charged with driving “over 80,” contrary to s. 253 of the Criminal Code. It was not contested at trial that the appellant had provided the breath samples into an approved instrument operated by a qualified technician within the prescribed time periods nor that the readings were reliable. Accordingly, the Crown was permitted to take advantage of the shortcuts found in ss. 258(1)(c) and 258(1)(g) of the Criminal Code to establish the accused’s blood-alcohol concentration at the time of the alleged offence by filing a certificate recording the accused’s breath readings.
The trial judge in the case found that the grounds to make the breath demand were insufficient, but he applied Rilling, which held that it is unnecessary for the Crown to prove a lawful demand in order to rely on the evidentiary shortcuts.
“The singular effect of concluding otherwise would be to require two additional witnesses [a breath technician and an expert toxicologist] to attend court to give evidence on matters which have no connection to the lawfulness of the breath demand,” Moldaver wrote, “and only serve to add to the costs and delays in an already overburdened criminal justice system.”
In dissenting reasons, Justice Malcolm Rowe — also writing for Chief Justice Beverley McLachlin and Justices Rosalie Abella and Russell Brown — found: “The requirement for reasonable grounds to demand a breath sample under s. 254(3) of the Code is a precondition to the operation of the presumptions in ss. 258(1) (c) and 258(1) (g). Rilling is therefore no longer good law.”
The minority essentially adopted the minority decision [in Rilling], says Welsh, “that the Rilling decision was based on the wrong principles” and conflates the issue of admissibility under common law with the operation of the evidentiary shortcuts.
“We were not arguing that the Crown could not admit evidence of breath tests in court,” he adds, but that where the demand for the breath test was not made on lawful grounds, the Crown would have to revert to traditional methods of presenting evidence: namely, expert evidence given in a courtroom, rather than hearsay evidence of the certificate recording of the accused’s breath readings.
“Clearly, Parliament always intended that . . . a lawful demand” be made of the accused, says Welsh.
The majority of the court agreed with the Crown that the presumption provisions of the Criminal Code operate independently from the demand provision, says Rodney Garson, who represented the attorney general of British Columbia in the case. Presumption provisions are evidentiary shortcuts that allow for the Crown to prove what a person’s blood-alcohol concentration was at the time they were driving, he says.
“An accused person can seek to have the results of the breath tests excluded,” Garson adds. “If the demand is without grounds, they can bring an application under the Charter that it was unreasonable search and seizure . . . That could result in breath samples being excluded.”
If a breach is established, a judge must determine under s. 242(2) of the Criminal Code whether the admission of the breath samples would bring the administration of justice into disrepute, he says.
Yet, while Garson sees the decision in Alex v. R. as being “confined to the very specific context of drinking and driving and a very specific set of provisions,” Welsh believes that if the majority’s reasoning were to be applied elsewhere in criminal law, “it would logically extend, in my view, where you have illegally gained evidence of any type; you wouldn’t be dealing with it by way of interpretation of the legislation,” but through a Charter analysis.
“It bypasses the point of what Parliament intended when it passed pieces of [Criminal Code] legislation.”