Canada: Supreme Court upholds procedures for breathalyzer evidence


On July 6, 2017 in a case cited as R. v. Alex, the Supreme Court upheld (in a 5-4 ruling) a 1976 decision which stated that the Crown did not need to prove the demand for a breath test was lawful in order to rely on evidentiary shortcuts about the accuracy of test readings. photo by

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The Supreme Court of Canada is upholding procedures that permit shortcuts for allowing a motorist’s breathalyzer test results into evidence — even in cases where demanding the breath sample may have been unlawful.

In a 5-4 ruling Thursday dismissing the appeal of a British Columbia driver, the court affirmed the existing charter process for challenging a police officer’s decision to order a breath sample.

It means technicians and toxicologists can’t be forced to testify in court about the accuracy and relevance of breath tests when the argument is really about whether police had reasonable grounds to demand testing in the first place.

Instead, the Crown can rely on a simple certificate recording the breath readings of the accused.

Ruling otherwise would require additional witnesses to attend court to give evidence on matters that have no connection to the lawfulness of the breath demand — and only add to the costs and delays in an already overburdened criminal justice system, Michael J. Moldaver, a Supreme Court Puisne Justice wrote on behalf of the majority.

No one gains under this approach — but society as a whole loses out as precious court time and resources are squandered,” he said in the court’s reasons. “The evidentiary shortcuts were designed by Parliament to simplify and streamline drinking and driving proceedings.”

The Supreme Court of Canada, located in Ottawa, Ontario. In 1969 Parliament 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. photo by

The Supreme Court upheld the impaired-driving conviction of Dion Henry Alex, who was stopped by police in Penticton, B.C., in April 2012.

An RCMP officer detected the scent of liquor and saw an open can of beer on the floor beside a passenger in Alex’s van. Alex failed a roadside test and was taken to the police detachment, where he blew above the legal blood alcohol limit in two subsequent tests.

At issue was the continuing relevance of a 1976 Supreme Court decision that said the Crown did not need to prove the demand for a breath test was lawful in order to rely on evidentiary shortcuts about the accuracy of test readings.

The introduction of the Charter of Rights and Freedoms in the 1980s added a new wrinkle, meaning that an accused person who argues a breath sample was obtained unlawfully could now initiate a charter challenge alleging unreasonable search and seizure.

In the decision Thursday, Michael J. Moldaver, a Supreme Court Puisne Justice said the charter “provides an effective recourse for challenging the lawfulness of breath demands” as well as a meaningful remedy — possible exclusion of the test results from evidence.

The interior of the Supreme Court of Canada. In a 5-4 ruling, the Supreme Court of Canada has found that the Crown need not prove the lawfulness of a demand to provide a breath sample from a person suspected of driving while impaired in order to use procedural “shortcuts” to prove the case in court. The Court did not see any reason to overturn an earlier decision of the same court in Rilling v. R., [1976]. photo by

Rather than make a charter challenge, Alex argued during his trial that the absence of grounds for requiring a sample meant the Crown could not use the evidentiary shortcut of a certificate.

The trial judge agreed that police lacked reasonable grounds to demand a breath sample, but cited the 1976 decision in ruling the Crown could file a certificate as evidence of Alex’s blood-alcohol concentration.

Alex unsuccessfully appealed in the British Columbia courts, then took his case to the Supreme Court.

In dissenting reasons, a minority of the high court said the 1976 decision was based on an incorrect view that relevant evidence is admissible even if it is unlawfully obtained.

Reversing that decision would not disrupt the administration of justice, the minority said, adding the Crown would still be able to prove its case where it has the evidence — even if it takes longer to do so.

Under proposed government legislation, it would be easier for police to make drivers blow into a breathalyzer to detect alcohol. Mandatory screening measures would allow police to demand a breath sample from any driver they lawfully stop.

The Supreme Court of Canada refused, in R. v. Alex, to overturn its’ earlier 1976 decision in Rilling v. R. photo by


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