SUPREME
COURT OF CANADA
Citation: R. v. Alex, 2017 SCC 37
|
Appeal heard:
December 8, 2016
Judgment
rendered: July 6, 2017
Docket:
36771
|
Between:
Dion
Henry Alex
Appellant
and
Her
Majesty the Queen
Respondent
-
and -
Attorney
General of Ontario and Criminal Lawyers’ Association (Ontario)
Interveners
Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner,
Gascon, Côté, Brown and Rowe JJ.
Reasons for
Judgment:
(paras. 1 to 51)
|
Moldaver J. (Karakatsanis, Wagner, Gascon and Côté JJ.
concurring)
|
Dissenting
Reasons:
(paras. 52 to 102)
|
Rowe J. (McLachlin C.J. and Abella and Brown JJ.
concurring)
|
Note: This document is subject to editorial revision before its
reproduction in final form in the Canada Supreme Court Reports.
r.
v. alex
Dion Henry Alex Appellant
v.
Her Majesty the Queen Respondent
and
Attorney General of Ontario and
Criminal Lawyers’ Association
(Ontario) Interveners
Indexed as: R. v. Alex
2017 SCC 37
File No.: 36771.
2016: December 8; 2017: July 6.
Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis,
Wagner, Gascon, Côté, Brown and Rowe JJ.
on appeal from the court of appeal for british columbia
Criminal
law — Evidence — Admissibility — Certificate of
analysis for breath test results — Accused charged with driving with blood‑alcohol
level over legal limit — Statutory scheme providing for evidentiary shortcuts which permit
Crown to establish, at trial, accused’s blood‑alcohol concentration at
time of offence by filing certificate recording accused’s breath readings,
subject to certain preconditions — Whether phrase
“pursuant to a demand made under subsection 254(3)”
of Criminal Code means demand for breath sample made by
police must be lawful for evidentiary shortcuts to apply — Whether previous Court ruling which
found that requirement of reasonable grounds to demand breath sample was not
precondition to operation of shortcuts remains good law — Criminal Code, R.S.C. 1985, c. C‑46,
s. 258(1) (c), (g).
A’s vehicle was stopped by the police who conducted a typical
drinking and driving investigation. After A failed a roadside screening device
test, he provided samples of his breath at the police station which registered
readings significantly over the legal limit. A was charged with driving “over
80”, contrary to s. 253 of the Criminal Code . At trial, it was uncontested
that A provided the breath samples into an approved instrument operated by a
qualified technician within the prescribed time periods, and that the readings
were reliable. Once these preconditions are met, the Crown can take advantage
of the shortcuts found in ss. 258(1)(c) and 258(1)(g) of the Code
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. This relieves the Crown from having to call two witnesses at every
trial: a breath technician and an expert toxicologist. In the instant case, the
trial judge found that the grounds to make the breath demand were insufficient,
but applied Rilling v. The Queen, [1976] 2 S.C.R. 183, which held
that it is unnecessary for the Crown to prove a lawful demand in order to rely
on the evidentiary shortcuts. A was convicted of driving “over 80”. Successive
appeals by A to the British Columbia Supreme Court and British Columbia Court
of Appeal were dismissed.
Held (McLachlin C.J.
and Abella, Brown and Rowe JJ. dissenting): The appeal should be dismissed.
Per Moldaver,
Karakatsanis, Wagner, Gascon and Côté JJ.: The
text of ss. 258(1)(c) and 258(1)(g) of the Code
does not support the requirement of a lawful demand for the evidentiary
shortcuts to apply. 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. The meaning of the phrase “pursuant to a demand
made under subsection 254(3)” is simply to identify a breath sample as the
bodily sample to which the provisions apply, which may have been unclear at the
time of their initial enactment in 1969. In any event, plain meaning alone is
not determinative and a statutory interpretation analysis is incomplete without
considering the context, purpose and relevant legal norms.
The
purpose and context of the provisions do not support the requirement of a
lawful demand for the evidentiary shortcuts to apply. Their overriding purpose
is to streamline proceedings by dispensing with unnecessary evidence. The
preconditions governing these shortcuts are concerned with the reliability of
the breath test results and their correlation to the accused’s blood‑alcohol
concentration at the time of the offence. The lawfulness of a breath demand has
no bearing on these matters. This purpose is distinct from that of s. 254(3),
which establishes and defines police powers, including the prerequisites for a
lawful breath demand. The overriding purpose of the evidentiary shortcuts would
be frustrated by importing a lawful demand requirement. Requiring the Crown to
call two additional witnesses will lead to unreasonable delays in drinking and
driving proceedings that are counterproductive to the administration of justice
as a whole and frustrate Parliament’s intent.
The
comparison to the s. 254(5) refusal offence is flawed. While the refusal
offence is part of the same statutory regime, it is different from other
drinking and driving offences in substance. Culpability for the refusal offence
is based on disobedience with lawful compulsion,
whereas culpability for an “over 80” offence is based on driving with a blood‑alcohol
concentration over the legal limit. Therefore, it is not unfair that a person
who refuses to comply with an unlawful demand is acquitted, but if that same
person complies and is prosecuted for an “over 80” offence, the evidentiary shortcuts
continue to apply. This does not discourage compliance with breath demands. It
remains a dangerous gamble for an individual to deliberately refuse a breath
demand. If the demand is later found to be lawful, that person may be
convicted, even if he or she was actually under the proscribed limit.
It is
unnecessary to determine whether Rilling was correctly decided under the
law as it existed at that time, as the concerns which animated the minority in Rilling
have been addressed in the present day context. The scientific reliability
of the results of properly administered breath tests is now firmly established.
And today, s. 8 of the Canadian Charter of
Rights and Freedoms , in combination with s. 24(2) , provides a
comprehensive and direct protection against unreasonable searches and seizures,
including those of breath samples. By contrast, a loss of the s. 258
evidentiary shortcuts does not provide a meaningful remedy for an unlawful
demand by the police and achieves no substantive or procedural benefit for an
accused — it merely requires the Crown to call two unnecessary witnesses to
arrive at the same result. Such an approach would be antithetical to the
Court’s recent jurisprudence emphasizing the importance of participants in the
criminal justice system working together to achieve fair and timely justice.
As a
lawful demand was not a precondition to the s. 258 evidentiary shortcuts,
there is no basis in this case for appellate interference and A’s conviction
must be upheld.
Per
McLachlin C.J. and Abella, Brown and Rowe
JJ. (dissenting): 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. A balancing between the values of correctness and certainty leads to the conclusion
that the need to correct the law predominates in this case. As
a result, A’s appeal should be allowed, his conviction set aside and a new
trial ordered.
Rilling
is based on an incorrect view that relevant evidence is admissible even if it
is unlawfully obtained. Such an interpretation conflates the issues of
admissibility under common law with the operation of the evidentiary shortcuts,
per s. 258(1) of the Code. This interpretation has been attenuated
by later jurisprudence which identifies the
distinction between admissibility and preconditions to evidentiary shortcuts,
and by the importance of a statutory precondition of reasonable and
probable grounds being satisfied to ensure a lawful search and seizure in s. 8
Charter context. It has also been attenuated by the modern approach to statutory interpretation.
Reading
ss. 258(1)(c) and 258(1)(g) in their entire context and according to their
grammatical and ordinary sense, harmoniously with the scheme and object of the
Act and the intention of Parliament, the reasoning in Rilling cannot
withstand scrutiny. The phrase “pursuant to a demand made under subsection
254(3)” does not simply identify the sample to which the provision applies.
That such words are meaningless is not plausible. This alternate interpretation
would mean that the other requirements of s. 254(3), such as the
requirement that the demand be made by a peace officer or that the demand be
made as soon as practicable, are also not required for the evidentiary
shortcuts to apply. This would mean that the Crown would have the benefit of
the evidentiary presumptions for any sample, irrespective of the conditions
under which the demand was made. Furthermore, the interpretation that “pursuant
to” imports the conditions under s. 254 as a pre‑condition of the
evidentiary presumptions under s. 258(1) is consistent with the position
the minority endorsed in Rilling and with later appellate case law.
Reversing
Rilling will not undermine the efficacy of the statutory scheme, or
disrupt the proper administration of justice. In prosecuting “over 80” charges,
where the peace officer acted without reasonable grounds, the Crown will not be
able to rely on the evidentiary shortcuts. However, the Crown will still be
able to prove its case where it has the evidence to do so, even if it takes
longer. Thus, no injustice will arise. While the Crown may be inconvenienced,
it is more important that these provisions of the Code be given their
proper meaning and effect. As well, today’s criminal procedure framework is
different from that which was in place when Rilling was decided. Current
procedures, such as disclosure, charge screening and pre‑trials, ensure
that parties are aware of issues before a trial begins. The loss of evidentiary
presumptions is a distinct issue from whether the certificate would be
admissible, which is governed by the rules of evidence subject to any s. 8
Charter applications. Thus, there would be no ambush
after the Crown had closed its case. The statutory scheme will still be able to
function as it should without the rule in Rilling.
Cases Cited
By Moldaver J.
Considered:
Rilling v. The Queen, [1976] 2 S.C.R. 183; referred to: R. v.
Deruelle, [1992] 2 S.C.R. 663; Bell ExpressVu Limited Partnership v. Rex,
2002 SCC 42, [2002] 2 S.C.R. 559; McLean v. British Columbia (Securities
Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; ATCO Gas and Pipelines
Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R.
140; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Montréal
(City) v. 2952‑1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141; R.
v. Vanderbruggen (2006), 206 C.C.C. (3d) 489; R. v. Ware (1975), 30
C.R.N.S. 308; R. v. Forsyth (1973), 15 C.C.C. (2d) 23; R. v. Charette,
2009 ONCA 310, 243 C.C.C. (3d) 480; R. v. Anderson, 2013 QCCA 2160, 9
C.R. (7th) 203; R. v. Forsythe, 2009 MBCA 123, 250 C.C.C. (3d) 90; R.
v. St‑Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187; R. v.
Phillips (1988), 42 C.C.C. (3d) 150; R. v. Paszczenko, 2010 ONCA 615,
103 O.R. (3d) 424; R. v. Shepherd, 2009 SCC 35, [2009] 3 S.C.R. 527; R.
v. Collins, [1987] 1 S.C.R. 265; R. v. Jordan, 2016 SCC 27, [2016] 1
S.C.R. 631; R. v. MacDonald (1974), 22 C.C.C. (2d) 350; R. v. Moser
(1992), 7 O.R. (3d) 737; R. v. Plamondon (1997), 121 C.C.C. (3d) 314; R.
v. Plummer (2006), 83 O.R. (3d) 528; R. v. Taraschuk, [1977] 1
S.C.R. 385.
By Rowe J. (dissenting)
Rilling
v. The Queen, [1976] 2 S.C.R. 183; R. v. Charette, 2009 ONCA
310, 94 O.R. (3d) 721; R. v. Wray, [1971] S.C.R. 272; Ontario
(Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3; R. v.
Henry, 2005 SCC 76, [2005] 3 S.C.R. 609; Canada
(Attorney General) v. Bedford, 2013 SCC 72, [2013]
3 S.C.R. 1101; Canada v. Craig, 2012 SCC 43, [2012] 2 S.C.R. 489; R.
v. Wray, [1970] 2 O.R. 3; R. v. Orchard, [1971] 1 W.W.R. 535,
aff’d [1971] 2 W.W.R. 639; R. v. Showell, [1971] 3 O.R. 460; R.
v. Flegel (1971), 5 C.C.C. (2d) 155, aff’d (1972), 7 C.C.C. (2d) 55; R. v. Deruelle, [1992] 2 S.C.R. 663; Rizzo
& Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Dastous v. Matthews‑Wells
Co., [1950] S.C.R. 261; Minister of National Revenue v. Armstrong,
[1956] S.C.R. 446; R. v. Bernshaw, [1995] 1 S.C.R. 254; R. v.
Searle, 2006 NBCA 118, 308 N.B.R. (2d) 216; R. v. Summers, 2014 SCC
26, [2014] 1 S.C.R. 575; R. v. Bernard, [1988] 2
S.C.R. 833; Reference re Agricultural Products Marketing Act, [1978] 2
S.C.R. 1198.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms,
ss. 8 , 11 (b), 24(2) .
Criminal Code, R.S.C. 1985, c. C‑46,
ss. 25(4) , 31(1) , 46(2) (b), 52(1) (b), 91(4) , 127(1) , 145(1) , 253 , 254 , 258 ,
270 .
Criminal
Law Amendment Act, 1968‑69, S.C. 1968‑69, c. 38, s. 16.
Motor
Vehicle Act, R.S.B.C. 1996, c. 318, s. 234(1).
Authors Cited
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto:
Butterworths, 1983.
Shorter Oxford English Dictionary on Historical Principles, 6th ed. by Angus Stevenson. Oxford: Oxford University Press, 2007,
“pursuant to”.
Sullivan, Ruth. Sullivan on the Construction of Statutes, 6th
ed. Markham, Ont.: LexisNexis, 2014.
APPEAL
from a judgment of the British Columbia Court of Appeal (Newbury, Harris and
Goepel JJ.A.), 2015 BCCA 435, 377 B.C.A.C. 301, 648 W.A.C. 301, 328 C.C.C.
(3d) 448, 24 C.R. (7th) 138, 344 C.R.R. (2d) 158, 86 M.V.R. (6th) 179, [2015]
B.C.J. No. 2267 (QL), 2015 CarswellBC 3000 (WL Can.), affirming a decision
of Schultes J., 2014 BCSC 2328, 71 M.V.R. (6th) 228, [2014] B.C.J. No. 3036
(QL), 2014 CarswellBC 3675 (WL Can.), affirming the accused’s summary conviction
for impaired driving. Appeal dismissed, McLachlin C.J. and Abella, Brown
and Rowe JJ. dissenting.
Michael F. Welsh, for the appellant.
Rodney Garson, for the respondent.
James V. Palangio and Michael Medeiros, for the intervener the Attorney
General of Ontario.
Adam Little, Jonathan M.
Rosenthal
and Shannon S. W. O’Connor, for the intervener the Criminal
Lawyers’ Association (Ontario).
The judgment of Moldaver, Karakatsanis, Wagner, Gascon and Côté
JJ. was delivered by
Moldaver J. —
I.
Background and Overview
[1]
Each year, drunk drivers cause tremendous
suffering and loss of life on Canada’s roadways. Tragically, drinking and
driving offences remain one of the most common crimes in Canada — and they
place a substantial burden on the criminal justice system.
[2]
To address the challenges posed by the large
number of drinking and driving offences, Parliament has, over the years, taken
steps to simplify and streamline the trial process. One such step, which dates
back to 1969, involved the introduction of evidentiary shortcuts into the Criminal
Code, R.S.C. 1985, c. C-46 .[1] These shortcuts, now found in ss. 258(1)(c) and 258(1)(g) of the Code,
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.
[3]
In the case of “over 80” charges,[2] 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.
[4]
To ensure that these evidentiary shortcuts yield
reliable evidence, Parliament built a number of preconditions into the scheme,
the most notable being that the breath samples have to be taken within a
prescribed period of time following the alleged offence; the samples have to be
provided directly into an approved container or instrument; and the instrument
has to be operated by a properly qualified technician.
[5]
The issue in this appeal is whether, in addition
to the three preconditions just mentioned, the Crown must also establish that
the demand for the breath sample made by the police was a “lawful” demand
before it can take advantage of the evidentiary shortcuts.
[6]
In Rilling v. The Queen, [1976] 2 S.C.R.
183, a majority of this Court held that it was unnecessary for the Crown to
prove a lawful demand in order to rely on the evidentiary shortcuts. This
appeal raises the question of whether Rilling remains good law.
[7]
The facts of the present case are
straightforward. On April 21, 2012, the police stopped a vehicle driven by the
appellant, Mr. Alex, and conducted a typical drinking and driving
investigation. After Mr. Alex failed a roadside screening device test, the
police officer demanded that he accompany the officer to the police station to
provide samples of his breath. Mr. Alex complied and registered readings
significantly over the legal limit. Accordingly, Mr. Alex was charged with
driving “over 80”, contrary to s. 253 of the Code.
[8]
At trial, it was uncontested that Mr. Alex
provided the breath samples into an approved instrument operated by a qualified
technician within the prescribed time periods, and that the readings were
reliable. However, Mr. Alex argued that the breath sample demand was unlawful
because the police lacked reasonable grounds to make it. Rather than bringing a
challenge to exclude the evidence under s. 8 of the Canadian Charter of
Rights and Freedoms , he chose instead to argue that the absence of
reasonable grounds for the demand deprived the Crown of the s. 258 evidentiary
shortcuts.
[9]
Although the trial judge agreed that the grounds
were insufficient, he applied Rilling and permitted the Crown to file a
certificate of analysis as proof of Mr. Alex’s blood-alcohol concentration at
the time of the alleged offence. Mr. Alex presented no defence and he was
convicted of driving “over 80”.
[10]
Successive appeals by Mr. Alex to the British
Columbia Supreme Court (2014 BCSC 2328, 71 M.V.R. (6th) 228) and British
Columbia Court of Appeal (2015 BCCA 435, 377 B.C.A.C. 301) were dismissed on
the basis that Rilling remained binding. Before this Court, Mr. Alex
submits that Rilling is no longer good law. He says it was wrongly
decided and should be reversed.
[11]
With respect, unlike my colleague Justice Rowe,
I find it unnecessary to determine whether Rilling was correctly decided
under the law as it existed over four decades ago. When ss. 258(1)(c) and
258(1)(g) are analyzed in accordance with the modern principles of statutory
interpretation, I am satisfied that the Crown need not prove that the demand
was lawful in order to take advantage of the shortcuts. If the taking of the
samples is subjected to Charter scrutiny, and the evidence of the breath
test results is found to be inadmissible by virtue of ss. 8 and 24(2) of the Charter ,
that will end the matter. Resort to the evidentiary shortcuts will be a
non-issue. On the other hand, if the taking of the samples is subjected to s. 8
Charter scrutiny, and the breath test results are found to be admissible
in evidence — either because no s. 8 breach occurred or because the evidence
survived s. 24(2) Charter scrutiny — the shortcuts should remain
available to the Crown.
[12]
The singular effect of concluding otherwise
would be to require two additional witnesses to attend court to give evidence
on matters which have no connection to the lawfulness of the breath demand —
and only serve to add to the costs and delays in an already overburdened
criminal justice system. No one gains under this approach — but society as a
whole loses out as precious court time and resources are squandered. The
evidentiary shortcuts were designed by Parliament to simplify and streamline
drinking and driving proceedings. A lawful demand requirement does not further
Parliament’s intent; rather, it serves to frustrate it.
[13]
I would accordingly dismiss the appeal.
II.
Analysis
A.
The Statutory Regime
[14]
The provisions at the centre of this appeal are
found in ss. 254 and 258 of the Code. They are reproduced in the
Appendix. I propose to review only the relevant portions of each.
[15]
Section 254(3) authorizes the police to demand a
breath sample from an individual. It sets out the statutory preconditions that
must be met for the demand to be lawful, including the precondition at issue in
this case, namely, that the police must have reasonable grounds to believe the
person is committing or has committed a drinking and driving offence under s.
253 of the Code:
254 .
. .
. . .
(3) If
a peace officer has reasonable grounds to believe that a person is committing,
or at any time within the preceding three hours has committed, an offence under
section 253 as a result of the consumption of alcohol, the peace officer may,
by demand made as soon as practicable, require the person
(a) to
provide, as soon as practicable,
(i) samples of breath that, in a qualified technician’s opinion, will
enable a proper analysis to be made to determine the concentration, if any, of
alcohol in the person’s blood . . . .
[16]
Sections 258(1)(c) and 258(1)(g) of the Code contain
the three evidentiary shortcuts at issue in this appeal:
(c) where
samples of the breath of the accused have been taken pursuant to a demand made
under subsection 254(3), if
(i) [Repealed before coming into force, 2008, c. 20, s. 3]
(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 conclusive proof that the concentration of alcohol in the
accused’s blood both at the time when the analyses were made and at the time
when the offence was alleged to have been committed was . . . the concentration
determined by the analyses . . .
(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,
(A) [Repealed before coming into force, 2008, c. 20, s. 3]
(B) the time when and place where each sample . . . 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;
[17]
Section 258(1)(g) creates a statutory exception
to the common law hearsay rule. It permits a certificate of analysis, which
sets out the accused’s breath test results, to be filed for the truth of its
contents without the need for viva voce evidence.
[18]
Section 258(1)(c) then provides two inferences
that may be presumptively drawn from the certificate. The first inference,
referred to as the presumption of accuracy, is that the breath readings in the
certificate are accurate measures of the accused’s blood-alcohol concentration.
This presumption dispenses with the need to call the qualified technician who
administered the tests to verify their accuracy.
[19]
The second inference, known as the presumption
of identity, provides that the breath test results also identify the accused’s
blood-alcohol concentration at the time of the alleged offence. This
presumption avoids the need to call an expert toxicologist to interpret or
“read-back” the breath readings with a view to identifying the accused’s
blood-alcohol concentration at the time of the alleged offence.
[20]
The three evidentiary shortcuts streamline the
trial proceedings by permitting an accused’s blood-alcohol concentration at the
time of the alleged offence to be presumptively proven through the filing of a
certificate of analysis. To be clear, these shortcuts do not affect whether the
accused’s breath readings are admissible or not. They affect only the manner
of admission — specifically, whether the Crown must call two additional
witnesses: one to verify the accuracy of the certificate and enter it as an
exhibit, and the other to opine on the accused’s blood-alcohol concentration at
the time of the alleged offence — matters which have no connection to the
lawfulness of the breath demand. This was made clear in R. v. Deruelle,
[1992] 2 S.C.R. 663, at pp. 673-74, where the Court observed that the breath
readings remain admissible at common law through viva voce evidence,
irrespective of whether the shortcuts apply.
[21]
The central question in this appeal is whether
the opening words of each s. 258 evidentiary shortcut — “where
samples of the breath of the accused have been taken pursuant to a demand made
under subsection 254(3)” — refer
specifically to a lawful demand made under s. 254(3), which among other
things, is predicated on the police having reasonable grounds to make the
demand.
B.
Mr. Alex’s Position
[22]
Mr. Alex advances three main submissions in support
of his interpretation that a lawful demand is required under s. 254(3) for the
evidentiary shortcuts to apply. First, he submits that the plain meaning of the
opening words of the text, referred to in the preceding paragraph, requires
that the demand be shown to be lawful. Second, he revives the dissenting
opinion in Rilling that Parliament intended the provisions to include a
lawful demand precondition to provide “another protection of the accused” in
the face of police powers of compulsion (Rilling, at p. 194), adding
that the adoption of the Charter should reinforce the importance of this
protection. Finally, he contends
that this interpretation is necessary to achieve harmony, both textual and as a
matter of policy, with the s. 254(5) offence of refusing to comply with a breath
demand.
[23]
These arguments are addressed in turn below. With
respect, I find each to be unconvincing.
C.
Statutory Interpretation
[24]
The modern approach to statutory interpretation
is now well established. It requires that the words of a provision be read “in
their entire context and in their grammatical and ordinary sense harmoniously
with the scheme of the Act, the object of the Act, and the intention of
Parliament”: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42,
[2002] 2 S.C.R. 559, at para. 26, quoting E. A. Driedger, Construction of
Statutes (2nd ed. 1983), at p. 87.
(1)
The Opening Words of the Provisions
[25]
Beginning with the text of ss. 258(1)(c) and
258(1)(g), Mr. Alex argues that the phrase “pursuant to a demand made under
subsection 254(3)” in the opening clause of each provision unambiguously
supports his position that the evidentiary shortcuts apply only where a lawful
demand is made under s. 254(3). When this phrase is viewed in isolation, I
acknowledge that his position is arguable. However, two
considerations cast doubt on Mr. Alex’s plain reading of the text.
[26]
First, Parliament could easily have specified
that the sample had to be taken “pursuant to a lawful demand”. There are many examples throughout the Code where Parliament has done
just that. For instance, in s. 127(1) of the Code,[3] Parliament has made it clear that to convict a person for disobeying a
court order, the underlying order must be “lawful”:
127 (1) Every one who, without lawful excuse, disobeys a lawful
order made by a court of justice or by a person or body of persons authorized
by any Act to make or give the order, other than an order for the payment of
money, is, unless a punishment or other mode of proceeding is expressly
provided by law, guilty of
(a) an indictable offence and liable to imprisonment for a term not
exceeding two years; or
(b) an offence punishable on summary conviction.
[27]
Second, Mr. Alex’s interpretation is in tension
with the structure of the provisions. Each includes an opening part followed by
a specific list of preconditions that must be met before the evidentiary
shortcuts can apply (ss. 258(1)(c)(i) to (iv) and 258(1)(g)(i) to (iii)). These
preconditions share a common theme of ensuring that certain procedures are
followed in the taking and recording of a breath reading, all of which bear
directly on the reliability of the evidentiary shortcuts. In particular, they
set out requirements pertaining to the timing, method, instrument type and
operator qualifications. The lawfulness of a breath demand does not mesh with
this theme. It has no bearing on the reliability of the evidentiary shortcuts.
Moreover, there is nothing in the text of the provisions to indicate that the
various reliability-related preconditions listed in each are meant to be
non-exhaustive. Mr. Alex’s interpretation does not conform to this basic
structure of the provisions. Instead, it calls for fragmented preconditions in
separate clauses.
[28]
In view of these considerations, it is not clear
to me that a plain reading of the provisions supports Mr. Alex’s position that
the evidentiary shortcuts depend on a lawful demand.
[29]
Mr. Alex submits, however, that unless his
interpretation is adopted, the words in the opening clause are rendered
meaningless. My colleague shares this view (para. 89).
[30]
Respectfully, I disagree. In my view, the phrase
“pursuant to a demand made under subsection 254(3)” simply identifies the
bodily sample to which the provisions apply — that is, a breath sample. This
reading finds support in the legislative history of the provisions. At the time
of their initial enactment in 1969, they contained references to blood, urine,
breath and other bodily samples. The opening words therefore played a
meaningful role in clarifying the specific sample to which the provisions were
meant to apply.
(2)
Plain Meaning Is not Determinative
[31]
This Court has repeatedly observed that plain
meaning alone is not determinative and a statutory interpretation analysis is incomplete without considering the context, purpose and relevant
legal norms: McLean v. British Columbia (Securities Commission), 2013
SCC 67, [2013] 3 S.C.R. 895, at para. 43; ATCO Gas
and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4,
[2006] 1 S.C.R. 140, at para. 48; Rizzo & Rizzo Shoes Ltd. (Re), [1998]
1 S.C.R. 27, at paras. 20-41. In the words of McLachlin C.J. and Deschamps J.
in Montreal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3
S.C.R. 141, this is necessary because (para. 10):
Words that appear clear and
unambiguous may in fact prove to be ambiguous once placed in their context. The
possibility of the context revealing a latent ambiguity such as this is a
logical result of the modern approach to interpretation.
[32]
Ruth Sullivan makes a similar point in Sullivan
on the Construction of Statutes (6th ed. 2014), at § 2.9:
At the end of the day . . . the
court must adopt an interpretation that is appropriate. An appropriate
interpretation is one that can be justified in terms of (a) its plausibility,
that is, its compliance with the legislative text; (b) its efficacy, that is,
its promotion of legislative intent; and (c) its acceptability, that is, the
outcome complies with accepted legal norms; it is reasonable and just.
[33]
In sum, while Mr. Alex’s interpretation may be
an arguable reading of the opening words, it cannot prevail if it is at odds
with the purpose and context of the provisions.
(3)
The Purpose and Context of the Evidentiary
Shortcuts
[34]
When the plain meaning of the provisions is read
harmoniously with their purpose and context, Parliament’s intent becomes clear:
the Crown need not establish the lawfulness of a breath demand for the
evidentiary shortcuts in ss. 258(1)(c) and 258(1)(g) to apply. The overriding
purpose of the evidentiary shortcuts is to streamline proceedings by dispensing
with unnecessary evidence. The preconditions governing the evidentiary
shortcuts are concerned with the reliability of the breath test results and
their correlation to the accused’s blood-alcohol concentration at the time of
the offence. The lawfulness of a breath demand has no bearing on these matters.
This purpose is distinct from that of s. 254(3), which establishes and defines
police powers, including the prerequisites for a lawful breath demand. Although
the general objective of the statutory drinking and driving regime is the same,
“the specific purposes of each mechanism are different”: Deruelle, at p.
672. As I will explain, the overriding purpose of the evidentiary shortcuts —
streamlining trial proceedings — would be frustrated by importing a lawful
demand requirement.
(4)
The Overriding Purpose of Streamlining
Proceedings Would Be Frustrated by Importing a Lawful Demand Requirement
[35]
Requiring the Crown to prove the lawfulness of
the breath demand before the evidentiary shortcuts can apply would frustrate
their overriding purpose: to streamline the trial process in this heavily
litigated and complex area of the law. In R. v. Vanderbruggen (2006),
206 C.C.C. (3d) 489 (Ont. C.A.), Rosenberg J.A. urged a sensible and practical
approach to interpreting the drinking and driving statutory regime, stating at
para. 16:
To conclude, these provisions, which
are designed to expedite trials and aid in proof of the suspect’s blood-alcohol
level, should not be interpreted so as to require an exact accounting of every
moment in the chronology. We are now far removed from the days when the
breathalyser was first introduced into Canada and there may have been some
suspicion and scepticism about its accuracy and value and about the science
underlying the presumption of identity. These provisions must be interpreted
reasonably in a manner that is consistent with Parliament’s purpose in
facilitating the use of this reliable evidence. [Emphasis
added.]
This sentiment has been
echoed in other cases: R. v. Ware, 30 C.R.N.S. 308 (Ont. C.A.),
at p. 315; R. v. Forsyth (1973), 15 C.C.C. (2d) 23 (Man. C.A.), at p.
26.
[36]
The evidentiary shortcuts are intended to avoid
needless delays in drinking and driving proceedings. Yet if the Crown is
required to prove that the demand is lawful before they can apply, this purpose
will be frustrated with some frequency, given that the distinction between
reasonable grounds and the absence of such grounds is often a fine one. Two
witnesses will be required to attend court in order to prove that which a
certificate of analysis reliably establishes. And this, in turn, will lead to
unreasonable delays that are counterproductive to the administration of justice
as a whole, without any compelling justification.
[37]
I disagree with my colleague’s suggestion that a
loss of the evidentiary shortcuts will merely cause “inconvenienc[e]” to the
Crown and make it take “longer to prove its case” (para. 98). The potential
consequences of Mr. Alex’s position should not be underestimated. In theory,
the need for these extra witnesses would be confined to a limited minority of
cases where a trial judge determines an unlawful demand was made. But in
reality, because the lawfulness of a demand remains uncertain until a
determination is made at trial, the practical consequences manifest themselves
much earlier in the proceedings at the point of trial scheduling. And in
drinking and driving cases, the lawfulness of a breath demand, and specifically
the officer’s grounds, are frequently in issue and can arise at any point, including
during an officer’s testimony at the trial.
[38]
As a result, in many cases, trial scheduling
would have to account for the possibility that two additional witnesses would
be required to testify. This would extend estimated lengths of trial
proceedings: one day trials would become two day trials, two day trials would
become three days, and so on. In addition, the Crown would have to be prepared
to call a breath technician and toxicologist in every case and limitations on
their availability could add to the delay. And the effects do not end there.
The consequences of trial scheduling are pervasive, creating backlogs and
congestion throughout the justice system as a whole. This raises the following
question: For what purpose? The answer, as I will explain, is none, other than
to provide an accused with a hollow form of protection against police
misconduct which the Charter now accounts for in a much more
satisfactory and meaningful way.
(5)
The Charter Now Addresses the Concerns
that Animated the Minority in Rilling about Providing Protection Against
Unlawful Breath Demands
[39]
In Rilling, this Court addressed a
similarly worded evidentiary shortcut found in what was then s. 237(1)(f) of
the Code (current s. 258(1)(g)). A majority of the Court
(Martland, Judson, Pigeon, Beetz and de Grandpré JJ.) concluded that
the presumption of accuracy continued to operate regardless of whether an
officer had the grounds needed to make a demand.[4]
[40]
Justice Spence (Laskin C.J. and Dickson J.
concurring) reached the opposite conclusion. The minority’s reasons were driven
by concerns that the majority’s interpretation would remove a “protection of
the accused” against unlawful breath demands:
The result of the judgment of the Appellate
Division from which this appeal is taken as well as some of the decisions in
other Provinces cited therein is to effectively remove another protection of
the accused. I am of the opinion that the requirement in both s. 237(1)(c)
and s. 237(1)(f) that the test should have been made pursuant to the demand
under s. 235(1) was inserted by Parliament with the intention of limiting those
cases where the analysis could be proved by a certificate of a qualified
technician and then that such analysis would provide prima facie proof
of the proportion of alcohol in the blood of the accused only to those cases
where the peace officer had, on reasonable and probable grounds, believed that
the accused was or had been driving while impaired. This was only a proper
requirement when the test was one which the citizen was required to submit to
on penalty of committing an offence if he refused. [Emphasis added; p.
194.]
[41]
This position is revived by Mr. Alex and the
Criminal Lawyers’ Association (Ontario) and is reinforced, in their opinion, by
Charter values. Accordingly, Mr. Alex asks this Court to overrule Rilling
as wrongly decided.
[42]
In my view, it is unnecessary to determine
whether Rilling was correctly decided under the law as it existed at
that time and I would decline to do so. It is clear that the concerns about
removing a safeguard against unlawful breath demands which animated the
minority in Rilling have been addressed in the present day context. As
the intervener the Attorney General of Ontario points out, in the years since Rilling,
the scientific reliability of the results of properly administered breath
tests is now firmly established: see R. v. St-Onge Lamoureux, 2012 SCC
57, [2012] 3 S.C.R. 187, at paras. 40 and 72; R. v. Phillips (1988),
42 C.C.C. (3d) 150 (Ont. C.A.); R. v. Paszczenko,
2010 ONCA 615, 103 O.R. (3d) 424, at paras. 42-47 and 65. And today, s. 8 of the Charter provides a comprehensive and direct
protection against unreasonable searches and seizures, including those of
breath samples: see R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at
paras. 13-16 and 24. In combination with s. 24(2) , s. 8 provides an effective
recourse for challenging the lawfulness of breath demands and a meaningful
remedy in the form of excluding the breath test results. Thus, s. 8 also
addresses my colleague’s concerns about ensuring that police are “conforming to
the requirements of the law”, including the “other requirements of s. 254(3) ,
such as the requirement that the demand be made by a peace officer or that the
demand be made as soon as practicable” (paras. 99 and 90).
[43]
This role that s. 8 fulfills in relation to
unlawful breath demands is consistent with the approach taken when the police
fail to comply with the requirements of other statutory provisions governing
their authority. For example, non-compliance with the statutory search warrant
requirements does not result in automatic loss of the evidence — rather it is
subject to challenge under s. 8 of the Charter : see R. v. Collins,
[1987] 1 S.C.R. 265, at pp. 278 and 280.
[44]
By contrast, a loss of the s. 258 evidentiary
shortcuts does not provide a meaningful remedy for an unlawful demand by the
police. Indeed, I would hesitate to characterize it as a remedy at all. In
reality, eliminating these evidentiary shortcuts achieves no substantive or
procedural benefit for an accused. It merely requires the Crown to call two
unnecessary witnesses — a breath technician and toxicologist — in order to
arrive at the same result.[5] An unlawful breath demand does not affect the reliability of the
inferences that flow from the shortcuts so as to make testimony from these
witnesses necessary.
[45]
In some cases, practical or resourcing limitations
may prevent the Crown from being able to produce these two witnesses — and this
could result in the case being lost. In my view, we should avoid an
interpretation that forces the Crown to call unnecessary witnesses and promotes
an outcome not based on the merits, but rather on the limitations of an
overburdened criminal justice system. Indeed, such an approach would be
antithetical to this Court’s recent jurisprudence emphasizing the importance of
participants in the criminal justice system working together to achieve fair
and timely justice: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at
paras. 2-3 and 19-28.
[46]
The minority in Rilling may have been
influenced by the notion that a loss of the evidentiary shortcuts could provide
a means of regulating police conduct in making breath demands. However the Charter
now fulfills the role of regulating the lawfulness of police breath demands
in a more effective and logical manner.
(6)
The Comparison to the Section 254(5) Refusal
Offence
[47]
Finally, Mr. Alex submits that the s. 254(5)
offence of refusing to provide a breath sample is relevant to the
interpretation of the s. 258 evidentiary shortcuts. Section 254(5) states:
(5) Everyone
commits an offence who, without reasonable excuse, fails or refuses to comply with
a demand made under this section.
Mr. Alex points to the
similarity between the opening words of the s. 258 evidentiary presumptions and
the reference in s. 254(5) to “a demand made under this section”. The
Criminal Lawyers’ Association (Ontario), in turn, relies on jurisprudence that
has recognized a lawful demand as an element of the refusal offence: citing R.
v. MacDonald (1974), 22 C.C.C. (2d) 350 (N.S.C.A.), at para. 35; see also
R. v. Moser (1992), 7 O.R. (3d) 737 (C.A.), per Doherty J.A., concurring in
the result. In addition, as a matter of policy, Mr. Alex submits it would be
unfair and anomalous if the Crown only had to establish the lawfulness of a
demand if an accused refused, but not if the accused complied with the demand.
[48]
I have difficulty with this comparison for a
number of reasons. First, the
textual argument assumes that the language of s. 254(5) requires the lawfulness
of the demand to be an element of the offence. In my view, however, this
element is better thought of as arising from the general nature of the refusal
offence — an offence which criminalizes disobedience in response to lawful
compulsion. Notwithstanding the words “made under”, disobedience with unlawful
compulsion is simply not criminal. For example, the unlawfulness of an arrest
can provide a complete defence to the charge of resisting arrest under s. 270
of the Code: R. v. Plamondon (1997), 121 C.C.C. (3d) 314, at
para. 29 (B.C.C.A.); see also R. v. Plummer (2006), 83 O.R. (3d) 528, at
paras. 1, 48-49 (C.A.).
[49]
This exposes a logical flaw in the analogy.
While the refusal offence is part of the same statutory regime, it is different
from other drinking and driving offences in substance. Culpability for the
refusal offence is based on disobedience with lawful compulsion, whereas
culpability for an “over 80” offence is based on driving with a blood-alcohol
concentration over the legal limit. The lawfulness of the breath demand has no
logical bearing on culpability for an “over 80” offence. As this Court observed
in R. v. Taraschuk, [1977] 1 S.C.R. 385,
conflating the elements of the two offences “invites a self-defeating
construction of [s. 254(5)] and would wipe out the difference, clearly made in
[ss. 253 and 254(5) ], between culpability under the one and under the other”
(p. 388). As a result, I do not find this textual comparison to be persuasive.
[50]
The distinct nature of these offences also
undermines Mr. Alex’s submission that it is unfair that a person who
refuses to comply with an unlawful demand is acquitted, but if that same person
complies and is prosecuted for an “over 80” offence, the evidentiary shortcuts
will continue to apply. Moreover, Mr. Alex’s suggestion that
this fosters absurdity in the law by discouraging compliance with breath
demands is unpersuasive. For decades, the law under Rilling has
been applied and there is no foundation to the practical concern about
discouraging compliance with breath demands. Indeed, it
remains a dangerous gamble for an individual to deliberately refuse a breath
demand. If the demand is later found to be lawful, the refuser may be
convicted, even if he or she was actually under the proscribed limit: Taraschuk,
at p. 388.
III.
Conclusion
[51]
In this case, the trial judge, the British
Columbia Supreme Court and the Court of Appeal correctly concluded that a
lawful demand was not a precondition to the s. 258 evidentiary shortcuts
(albeit for different reasons than I have set out). In view of the foregoing
analysis, there is no basis for appellate interference and Mr. Alex’s
conviction must be upheld. Accordingly, I would dismiss the appeal.
The reasons of McLachlin C.J. and Abella, Brown and Rowe JJ.
were delivered by
Rowe J. —
I.
Introduction
[52]
The appellant, Dion Henry Alex, was convicted by
the application of the rule in Rilling v. The Queen, [1976] 2 S.C.R.
183. This case deals with whether the rule in Rilling is good law. For
the reasons that follow, I would hold that it is not. While the Crown argued
that this would undermine the operation of that part of the scheme to combat
impaired driving set out in s. 258(1) (c) and (g) of the Criminal Code,
R.S.C. 1985, c. C-46 , the evidentiary “shortcuts” to proving that a driver had
a blood-alcohol level “over 80”, the statutory scheme will still be able to
function as it should without the rule in Rilling.
II.
Facts
[53]
The trial judge made the following finding of
facts; these are not in dispute.
[54]
Mr. Alex was pulled over during a seatbelt check
in Penticton, British Columbia. He registered a fail on an approved screening
device (“ASD”) administered by Constable Caruso. At the police station, Mr.
Alex’s breath samples registered 140 mg and 130 mg of alcohol per 100 ml of
blood, respectively.
[55]
Constable Caruso testified to the circumstances
leading up to the ASD demand, including: an odour of liquor as he approached
the vehicle; an open beer can on the floor near the passenger side; Mr. Alex
had “red cheeks” and “watery eyes”. Constable Caruso did not identify any other
indicia of impairment; Mr. Alex had no difficulty parking and exiting the
vehicle. Constable Caruso made no notes about how he came to form a suspicion
that Mr. Alex had alcohol in his body, but he testified that he knew he had
formed a reasonable suspicion because he would not have made the demand
otherwise.
[56]
Mr. Alex failed the ASD. The officer then made a
breath demand, and drove Mr. Alex to the police station where two observation
periods and two samples of breath were obtained.
III.
Relevant Statutory Provisions
[57]
The following provisions of the Criminal
Code are engaged by this appeal:
253 (1) Every one commits an offence who operates a
motor vehicle or vessel or operates or assists in the operation of an aircraft
or of railway equipment or has the care or control of a motor vehicle, vessel,
aircraft or railway equipment, whether it is in motion or not,
(a)
while the person’s ability to operate the vehicle,
vessel, aircraft or railway equipment is impaired by alcohol or a drug; or
(b)
having consumed alcohol in such a quantity that the
concentration in the person’s blood exceeds eighty milligrams of alcohol in one
hundred millilitres of blood.
(2) For
greater certainty, the reference to impairment by alcohol or a drug in
paragraph (1)(a) includes impairment by a combination of alcohol and a drug.
254 . .
.
. . .
(2) If a peace
officer has reasonable grounds to suspect that a person has alcohol or a drug
in their body and that the person has, within the preceding three hours,
operated a motor vehicle or vessel, operated or assisted in the operation of an
aircraft or railway equipment or had the care or control of a motor vehicle, a
vessel, an aircraft or railway equipment, whether it was in motion or not, the
peace officer may, by demand, require the person to comply with paragraph (a),
in the case of a drug, or with either or both of paragraphs (a) and (b), in the
case of alcohol:
(a)
to perform forthwith physical coordination tests
prescribed by regulation to enable the peace officer to determine whether a
demand may be made under subsection (3) or (3.1) and, if necessary, to
accompany the peace officer for that purpose; and
(b)
to provide forthwith a sample of breath that, in
the peace officer’s opinion, will enable a proper analysis to be made by means
of an approved screening device and, if necessary, to accompany the peace
officer for that purpose.
. . .
(3) If a peace officer has reasonable grounds to believe that a
person is committing, or at any time within the preceding three hours has
committed, an offence under section 253 as a result of the consumption of
alcohol, the peace officer may, by demand made as soon as practicable, require
the person
(a)
to provide, as soon as practicable,
(i)
samples of breath that, in a qualified technician’s
opinion, will enable a proper analysis to be made to determine the
concentration, if any, of alcohol in the person’s blood, or
(ii)
if the peace officer has reasonable grounds to
believe that, because of their physical condition, the person may be incapable
of providing a sample of breath or it would be impracticable to obtain a sample
of breath, samples of blood that, in the opinion of the qualified medical
practitioner or qualified technician taking the samples, will enable a proper
analysis to be made to determine the concentration, if any, of alcohol in the
person’s blood; and
(b)
if necessary, to accompany the peace officer for
that purpose.
. . .
258 (1) In
any proceedings under subsection 255(1) in respect of an offence committed
under section 253 or subsection 254(5) or in any proceedings under any of
subsections 255(2) to (3.2),
. . .
(c)
where samples of the breath of the accused have
been taken pursuant to a demand made under subsection 254(3), if
(i)
[Repealed before coming into force, 2008, c. 20, s.
3]
(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 conclusive proof that the concentration of alcohol in the
accused’s blood both at the time when the analyses were made and at the time
when the offence was alleged to have been committed was, if the results of the
analyses are the same, the concentration determined by the analyses and, if the
results of the analyses are different, the lowest of the concentrations
determined by the analyses, in the absence of evidence tending to show all of
the following three things — that the approved instrument was malfunctioning or
was operated improperly, that the malfunction or improper operation resulted in
the determination that the concentration of alcohol in the accused’s blood
exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of
alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol
in 100 mL of blood at the time when the offence was alleged to have been
committed;
. . .
(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,
(A) [Repealed before coming into force, 2008, c. 20, s. 3]
(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;
IV.
Decisions under Appeal
A.
Provincial Court of British Columbia (Koturbash
Prov. Ct. J.)
[58]
Koturbash Prov. Ct. J. was satisfied beyond a
reasonable doubt of Mr. Alex’s guilt regarding the “over 80 count”, and
convicted him for the offence of having care or control of his vehicle with a
blood alcohol level in excess of the legal limit, contrary to s. 253(1)(b).
Koturbash Prov. Ct. J. additionally convicted Mr. Alex for driving while
prohibited contrary to s. 234(1) of the Motor Vehicle Act, R.S.B.C 1996,
c. 318; that charge is not in issue before this Court.
[59]
Koturbash Prov. Ct. J. considered whether
Constable Caruso had the necessary reasonable suspicion to make an ASD demand,
and what the implications were if he did not.
[60]
Koturbash Prov. Ct. J. was not satisfied
Constable Caruso had a reasonable suspicion to believe that Mr. Alex had
alcohol in his body before he made the ASD demand. He also questioned whether
Constable Caruso had the necessary subjective suspicion to make the ASD demand.
Koturbash Prov. Ct. J. held that even if he had been satisfied that Constable
Caruso had the necessary subjective suspicion, he was not satisfied on the
totality of the circumstances that Constable Caruso had a reasonable basis for
his suspicion.
[61]
Even though Koturbash Prov. Ct. J. concluded
that Constable Caruso did not have the reasonable suspicion necessary to make
an ASD demand, applying this Court’s decision in Rilling, he held:
Without an application to exclude the
evidence under the Charter , the absence of reasonable grounds to make a
breath demand has no bearing on the admissibility of the certificate nor the application
of the presumptions under the Code. [A.R., at pp. 9-10]
[62]
Thus, he was “satisfied beyond a reasonable
doubt of the accused’s guilt on the over 80 count” and convicted Mr. Alex
(para. 29).
B.
Supreme Court of British Columbia, 2014 BCSC
2328, 71 M.V.R. (6th) 228 (Schultes J.)
[63]
Schultes J. dismissed Mr. Alex’s appeal.
[64]
Schultes J. held that the trial judge erred in
his application of the test for deciding whether Constable Caruso had
reasonable suspicion to make the breath demand. If this were a Crown appeal of
an acquittal, Schultes J. would have ordered a new trial were it not for the
application of Rilling.
[65]
Schultes J. considered divergent appellate
decisions regarding Rilling; he concluded that the Ontario Court of
Appeal in R. v. Charette, 2009 ONCA 310, 94 O.R. (3d) 721, was correct
in affirming that Rilling remains good law. Accordingly, he held that a
lawful demand is not necessary in order to rely on the presumption of accuracy
and the presumption of identity pursuant to s. 258(1) (c) and (g).
[66]
Schultes J. stated: “My decision rests on the
conclusion that Rilling has not been impliedly overruled by subsequent
decisions and that the mere existence of the Charter does not mandate
its extinction” (para. 57).
C.
Court of Appeal for British Columbia, 2015 BCCA
435, 377 B.C.A.C 301 (Newbury, Harris and Goepel JJ.A.)
[67]
Newbury J.A., writing for the court, dismissed
Mr. Alex’s appeal. Newbury J.A. held that the appeal required the court to
determine “whether Rilling . . . remains good law in circumstances where
a reasonable suspicion may not have existed for demanding a breath sample and
where the Charter was not invoked by the accused” (para. 3
(emphasis in original)).
[68]
She concluded that as Rilling had not
been reversed by this Court, it remains good law, such that if a breath sample
is demanded without reasonable suspicion and the Canadian Charter of Rights
and Freedoms has not been invoked by the accused, the breathalyzer
certificate is admissible.
[69]
Newbury J.A. agreed with the summary conviction
appeal judge that the trial judge erred in his application of the test for
deciding whether Constable Caruso had reasonable suspicion to demand the breath
sample. She too, would have ordered a new trial on the issue of subjective
ground were it not for Rilling (para. 30).
[70]
Newbury J.A. further addressed Mr. Alex’s second
ground of appeal, “whether the summary conviction appeal judge . . . erred in
finding that the trial judge had erred in law in concluding that the officer’s
suspicion, which was relied on to make a demand under s. 254(2) of the Code
was not ‘objectively reasonable’” (para. 4). This issue is not before this
Court.
V.
Issue
[71]
In a prosecution under s. 253(1)(b), for an
“over 80” charge, is the requirement for “reasonable grounds” to demand a
breath sample under s. 254(3) a precondition to the operation of the
presumptions in s. 258(1) (c) and (g)?
VI.
Submissions
[72]
Mr. Alex argues that the majority decision in Rilling
was based on the principle (affirmed in R. v. Wray, [1971] S.C.R. 272) that relevant evidence obtained by a
police officer in a manner that is not lawfully authorized is nonetheless
admissible. As such, Judson J.’s majority reasons in Rilling render the
statutory term “reasonable grounds”, as a precondition to making a breath
demand, meaningless. By contrast, Spence J.’s dissenting reasons in Rilling
give effect to Parliament’s intention that “reasonable grounds” operate as a
precondition to a breath demand, thereby protecting citizens from unwarranted
police action. In the appellant’s submission, the “reasonable grounds”
requirement should operate as a statutory protection against unlawful search.
Thus, the ruling in Rilling runs contrary to a plain reading of s.
254(3). Mr. Alex submits that admitting unlawfully obtained evidence only
accords with law if such evidence is nonetheless admissible, i.e. what was
affirmed by this Court in Wray.
[73]
The Criminal Lawyers’ Association (Ontario) (“CLA”) intervened in
support of the appellant. The CLA argued that Rilling should be
overturned, as compliance with the requirement for “reasonable
grounds” in order to demand breath samples under s. 254(3) is clearly a
statutory precondition to the presumptions in s. 258(1) (c) and (g).
[74]
The CLA challenged the Crown’s argument that
overturning Rilling would severely disrupt the administration of
justice. The CLA argued that, inter alia, requiring that a demand be
made in accordance with the precondition of “reasonable grounds” before being
able to rely on the evidentiary presumptions in s. 258(1) is no more than what
the Crown must already do to rely on other evidentiary presumptions. Similarly,
overturning Rilling would not result in automatic exclusion of evidence
and acquittals. The presumptions in s. 258(1) do not deal with admissibility
of evidence concerning breath samples per se; rather they only provide
“shortcuts” to the proof of the certificate’s contents, which it is open to the
Crown to prove by other means. Moreover, the Crown’s argument is based on the
unproven assertion that requiring the Crown to lead evidence that the officer
had “reasonable grounds” to make a breath sample demand would cripple the
justice system.
[75]
The Crown argues that Rilling should be affirmed
as good law and that applying Rilling merely deprives accused
persons of the chance to defeat s. 258(1) presumptions for reasons entirely
unconnected to their rationale and the text of the provisions. The Crown relies
on Rilling for the proposition that while absence of reasonable and
probable grounds for belief of impairment may afford a defence to a refusal to
provide a breath sample charge under s. 254(5), it does not render the
certificate inadmissible and the presumptions inoperative. The motive that
actuates a peace officer to make a demand under s. 254(3) is not a relevant
consideration when the accused has complied with the demand. Relevant evidence
of an “over 80” offence is prima facie admissible unless a legal rule
provides for its exclusion, and s. 254(3) contains no such rule. In essence,
the Crown restated the rationale relied on by Judson J. in Rilling.
[76]
The Attorney General for Ontario intervened in
support of the Crown arguing that Rilling should not be overturned. The
interpretation in Rilling is consistent with Parliament’s intent; had
Parliament intended a valid demand to be a precondition to the reliance on the
evidentiary presumption in s. 258(1) (c), then reasonable grounds for a breath
sample demand would be an enumerated requirement under s. 258(1) itself.
VII. Analysis
[77]
In a prosecution under s. 253(1)(b), for an
“over 80” charge, is the requirement for “reasonable grounds” to demand a
breath sample under s. 254(3) a precondition to the operation of the
presumptions in s. 258(1) (c) and (g)? The answer to this turns on the status of
Rilling. Unless Rilling is overturned by this Court, it is
dispositive of the issue under appeal.
[78]
This Court has previously considered when it
should overrule one of its decisions (see Ontario (Attorney General) v.
Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3; R. v. Henry, 2005 SCC 76,
[2005] 3 S.C.R. 609; and Canada (Attorney General) v. Bedford, 2013 SCC
72, [2013] 3 S.C.R. 1101). There are several, non-exhaustive factors this Court
can consider to determine this. Essentially, there is a balancing between the
values of correctness and certainty. The Court must ask whether it is
“preferable to adhere to an incorrect precedent to maintain certainty, or to
correct the error” (Canada v. Craig, 2012 SCC 43, [2012] 2 S.C.R. 489,
at para. 27). In my view, for the reasons that follow, the need to correct the
law predominates in this case.
A.
The Rule in R. v. Rilling
[79]
The majority in Rilling took the view
that relevant evidence is admissible even if it is unlawfully obtained. In
doing so, the majority incorrectly conflated the issues of admissibility under
common law (as per R. v. Wray) with the operation of the evidentiary
shortcuts (per s. 258(1) of the Code).
[80]
In Wray, the accused, Mr. Wray, was
arrested for the murder of his brother, who had been shot. Under “duress” by
police (which I take to mean the use of force or the threat of force), the
accused made a statement and showed police where he had discarded the gun.
Ballistics showed it was the murder weapon. The gun was received into evidence,
as was that part of Mr. Wray’s statement that was confirmed by the gun. Mr.
Wray was acquitted at trial as the trial judge refused to admit the evidence of
Mr. Wray’s involvement in finding the murder weapon.
[81]
In the Crown’s appeal, the Ontario Court of
Appeal held that trial judges have a discretion to exclude evidence where there
is unfairness to the accused or where receiving the evidence would bring the
administration of justice into disrepute. It affirmed the acquittal:
In our view, a trial [j]udge has a
discretion to reject evidence, even of substantial weight, if he considers that
its admission would be unjust or unfair to the accused or calculated to bring
the administration of justice into disrepute, the exercise of such discretion,
of course, to depend upon the particular facts before him. Cases where to admit
certain evidence would be calculated to bring the administration of justice
into disrepute will be rare, but we think the discretion of a trial [j]udge
extends to such cases. [[1970] 2 O.R. 3 (C.A.), at p. 4]
[82]
In the Crown’s appeal to this Court, the
division in the Court foreshadowed that in Rilling. Spence J.,
dissenting, wrote in favour of the Ontario Court of Appeal’s approach. Hall J.
and Cartwright C.J., each wrote separate reasons to similar effect. The
majority (in two sets of reasons, one by Judson J., and one by Martland J.)
rejected the Ontario Court of Appeal’s approach; they affirmed the traditional
rule that relevant but illegally obtained evidence is admissible.
[83]
In Rilling, in his reasons for the
majority, Judson J. adopted the analysis of the appeals court, including its
reliance on R. v. Orchard, [1971] 1 W.W.R. 535 (Sask. Dist. Ct.), aff’d
[1971] 2 W.W.R. 639 (C.A.), R. v. Showell, [1971] 3 O.R. 460 (H.C.J.),
and R. v. Flegel (1971), 5 C.C.C. (2d) 155 (Sask. Q.B.), aff’d
(1972), 7 C.C.C. (2d) 55 (C.A.). In effect, Judson J. was affirming what he had
written in Wray, that it does not matter that evidence was obtained
illegally.
[84]
However, the majority erred by making the rule
affirmed in Wray the cornerstone of their reasons. An interpretation of
s. 258(1) that conflates admissibility with the pre-conditions for evidentiary
presumptions is incorrect and has been attenuated by a later decision of this
Court, R. v. Deruelle, [1992] 2
S.C.R. 663, which identifies the distinction between admissibility and
preconditions to evidentiary shortcuts.
[85]
In Deruelle, this Court considered the
meaning of the time limit within which a breathalyzer demand must be made by
police under s. 254(3) of the Code (pp. 665-66). The interpretative
question, before the Court, was “whether the two-hour limit referred to in s.
254(3) . . . applies to the making of the breath or blood sample demand, or to
the formation of the peace officer’s belief on reasonable and probable grounds
that a person is committing or has committed as a result of the consumption of
alcohol, an offence under s. 253 of the Code” (p. 671).
[86]
In considering competing lines of analysis
regarding the meaning of the time limits under s. 254(3), the Court noted that
the specific purpose of s. 254(3) “which goes to the admissibility of the
sample into evidence, can be distinguished from the purpose of the time limit
in the presumption section, s. 258(1) (c)” (p. 672). As explained by Justice La
Forest, writing for the Court, whereas s. 258(1) (c) is a procedural shortcut,
it is not concerned with admissibility (p. 672).
[87]
Thus, by implicitly endorsing the rule affirmed
in Wray, the majority in Rilling erred in deciding the issue on
the basis of admissibility of evidence at common law rather than on an
interpretation of the evidentiary shortcuts in the Code. In doing so,
the majority failed to engage in a statutory interpretation of the relevant
sections of the Code. The provisions of the Code at issue in this
appeal set out where a certificate can be admitted, in the absence of viva
voce testimony, and the evidentiary presumptions that follow. The interpretation
and application of this provision properly turns on a statutory interpretation
exercise.
B.
Statutory Interpretation
[88]
The holding in Rilling has also been
attenuated by subsequent jurisprudence of this Court, namely, Rizzo &
Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, which sets out the modern
approach to statutory interpretation: the words of the provision must be read
in their entire context and according to their grammatical and ordinary sense,
harmoniously with the scheme and object of the Act and the intention of
Parliament (para. 21, citing E. A. Driedger, Construction of Statutes
(2nd ed. 1983), at p. 87). Reading s. 258(1)(c) and (g) in this way, the
reasoning in Rilling cannot withstand scrutiny. Whether or not a demand
was made by an officer who had reasonable grounds to do so is an express
precondition to the applicability of the evidentiary presumptions set out in s.
258(1)(c) and (g), the opening words of which read: “. . . where samples of the breath of the accused have been taken pursuant
to a demand made under subsection 254(3) . . . ”
[89]
The Shorter Oxford
English Dictionary on Historical Principles (6th ed. 2007) defines
“pursuant to” as “consequent and conforming to; in
accordance with” (p. 2412). The French version of s. 258(1)(c) and (g) is
to similar effect, using the phrase “conformément à”. For the
meaning of “pursuant to”, see also: Dastous v Matthews-Wells Co., [1950]
S.C.R. 261; Minister of National Revenue v. Armstrong, [1956] S.C.R. 446, at p. 447. If the reasonable grounds referred to in s. 254(3) are not a
precondition to the operation of s. 258(1)(c) and (g), then why is there a
reference to s. 254(3) at all? That such words are meaningless is not
plausible. If reasonable grounds under s. 254(3) are not a precondition, then
what does the reference to “pursuant to” in the opening words of both s.
258(1)(c) and (g) mean? That such words have no legal effect is implausible.
My colleague, Justice Moldaver, finds that these words simply identify the
sample to which the provision applies (para. 30). In my respectful view, this
cannot be the case.
[90]
This alternate interpretation would mean that
the other requirements of s. 254(3), such as the requirement that the demand be
made by a peace officer or that the demand be made as soon as practicable, are
also not required for the evidentiary shortcuts to apply. This would mean that
the Crown would have the benefit of the evidentiary presumptions for any
sample, irrespective of the conditions under which the demand was made. The
scheme of the legislation is clear: a lawful demand under s. 254(3) is a
precondition to reliance on s. 258(1)(c) and (g).
[91]
This is consistent with what this Court held in R.
v. Bernshaw, [1995] 1 S.C.R. 254. Justice Sopinka, writing for the
majority, at para. 51, noted the importance of a statutory precondition being
satisfied to ensure a lawful search and seizure, albeit in the context of s. 8
of the Charter :
The requirement in s. 254(3) that
reasonable and probable grounds exist is not only a statutory but a
constitutional requirement as a precondition to a lawful search and seizure under
s. 8 of the Canadian Charter of Rights and Freedoms . Section 8 requires that reasonable and
probable grounds exist in fact and not that their presence can be deemed
to exist notwithstanding the evidence. [Emphasis added; last emphasis in
original.]
[92]
In her concurring reasons, Justice L’Heureux‑Dubé agreed with Justice Sopinka
that “‘reasonable and probable grounds’ is not only a statutory
precondition to a breathalyzer demand but also a touchstone of the Charter ”
(para. 96 (emphasis added)).
[93]
Furthermore, this interpretation that “pursuant
to” imports the conditions under s. 254 as a pre-condition of the evidentiary
presumptions under s. 258(1) is consistent with the position Spence J. endorsed
in Rilling and with the Court of Appeal of New Brunswick’s decision in R.
v. Searle, 2006 NBCA 118, 308 N.B.R. (2d) 216.
[94]
Mr. Searle had appealed, inter alia, that
the summary conviction appeal judge erred in finding that the breathalyzer
samples were taken lawfully and that the Crown could rely on the presumption
found at s. 258. Mr. Searle did not, at trial, seek the exclusion of the
certificate of the technician on the grounds of a Charter violation.
Nevertheless, the court found:
Since the
demand was not made in strict compliance with s. 254(3) of the Code, it is
unlawful. The Crown cannot rely on the presumption found in s. 258(1)(c) unless
the officer had reasonable and probable grounds to make the breathalyzer demand
in the first place. Without this presumption, there is no evidence of the
concentration of alcohol in the accused’s blood at the time the offence was
alleged to have been committed. Thus, the Crown has failed to prove the element
of the offence under s. 253(b) of the Code. To summarize: the certificate is
still admissible but the prosecutor is not, however, entitled to use the
presumption under s. 258(1)(c). The accused must, therefore, be acquitted of
the charge under s. 253(b) of the Code. [para. 25]
[95]
On the foregoing basis, I would reverse Rilling.
This is in accordance with the principle that this Court may depart from
earlier decisions where the earlier decision has been been attenuated by
later decisions of this Court (R. v. Bernard, [1988] 2 S.C.R. 833, at
pp. 855-56, citing Reference re Agricultural Products Marketing Act,
[1978] 2 S.C.R. 1198).
C.
Reversing Rilling Will Not Undermine
Effectiveness of the Statutory Scheme
[96]
The Crown has argued that if this Court reverses
Rilling, this will undermine the effectiveness of the statutory scheme.
Specifically, the Crown argues that policy considerations militate in favour of
allowing only Charter challenges to exclude certificates of analysis,
and that to allow an accused to argue that the evidentiary presumptions are not
available absent a Charter challenge is to promote “trial by ambush” (Charette,
at para. 45). These concerns were referred to in Charette at the Ontario
Court of Appeal (see discussion at paras. 44-46). My colleague, Justice
Moldaver, in his reasons, also points to policy concerns in overruling Rilling,
namely that requiring the Crown to prove the lawfulness of a breath demand
before the evidentiary shortcuts apply would frustrate their overriding purpose
(paras. 35-36). Of course, none of this detracts from the right of an accused
to rely on the Charter , notably the protections against illegal search
and seizure.
[97]
For the reasons that follow, I cannot agree with
the Crown that reversing Rilling would undermine the efficacy of the
statutory scheme, or that it would disrupt the proper administration of
justice.
[98]
In prosecuting “over 80” charges, where the
peace officer acted without reasonable grounds, if Rilling is
overturned, the Crown will not be able to rely on the evidentiary shortcuts. It
will take the Crown longer to prove its case; that follows from not being able
to rely on the shortcuts. But it will still be able to prove its case where it
has the evidence to do so. Thus, no injustice will arise. The Crown may be
inconvenienced, but is it not more important that these provisions of the Code
be given their proper meaning and effect? To ask the question is to answer it.
[99]
To reverse Rilling is to do no more than
affirm that the “reasonable grounds” referred to in s. 254(3) are a
precondition for the reliance on the evidentiary presumptions in s. 258(1)(c)
and (g). The Crown will simply need to prove the statutory precondition of
reasonable grounds. Neither the police nor the Crown should object to
conforming to the requirements of the law.
[100]
As well, today’s criminal procedure framework is
different from that which was in place when Rilling was decided. As
submitted by the CLA, current procedures, such as disclosure, charge screening
and pre-trials, ensure that parties are aware of issues before a trial begins.
[101]
If the rule in Rilling no longer applies, the evidentiary
presumptions will not apply unless the statutory preconditions in s. 254(3) are
met, i.e. the police officer had reasonable grounds to demand the breath
sample. This is a distinct issue from whether the certificate would be admissible,
which is governed by the rules of evidence subject to any s. 8 Charter
applications.What is key is that these issues would be sorted
out when the Crown seeks to have the certificate received in evidence. Thus,
there would be no “ambush” after the Crown had closed its case. None of this
would undermine the statutory scheme. In short, the effects of reversing Rilling
would not be those suggested by the Crown.
VIII. Disposition
[102]
In light of the foregoing, I would allow the
appeal, set aside Mr. Alex’s conviction and order a new trial.
APPENDIX
Criminal Code, R.S.C. 1985, c.
C-46
Definitions
254 (1) In
this section and sections 254.1 to 258.1,
analyst means a person designated by the Attorney General as an analyst for
the purposes of section 258; (analyste)
approved container means
(a) in respect of breath samples, a container of a kind that is
designed to receive a sample of the breath of a person for analysis and is
approved as suitable for the purposes of section 258 by order of the Attorney
General of Canada, and
(b) in respect of blood samples, a container of a kind that is
designed to receive a sample of the blood of a person for analysis and is
approved as suitable for the purposes of section 258 by order of the Attorney
General of Canada; (contenant approuvé)
approved instrument means an instrument of a kind that is designed to receive and make an
analysis of a sample of the breath of a person in order to measure the concentration
of alcohol in the blood of that person and is approved as suitable for the
purposes of section 258 by order of the Attorney General of Canada; (alcootest approuvé)
approved screening
device means a device of a kind that is designed
to ascertain the presence of alcohol in the blood of a person and that is
approved for the purposes of this section by order of the Attorney General of
Canada; (appareil de détection approuvé)
evaluating officer means a peace officer who is qualified under the regulations to
conduct evaluations under subsection (3.1); (agent
évaluateur)
qualified medical
practitioner means a person duly qualified by
provincial law to practise medicine; (médecin
qualifié)
qualified technician means,
(a) in respect of breath samples, a person designated by the Attorney
General as being qualified to operate an approved instrument, and
(b) in respect of blood samples, any person or person of a class of
persons designated by the Attorney General as being qualified to take samples
of blood for the purposes of this section and sections 256 and 258. (technicien qualifié)
Testing for presence of alcohol or a drug
(2) If a peace officer has reasonable grounds to suspect that a
person has alcohol or a drug in their body and that the person has, within the
preceding three hours, operated a motor vehicle or vessel, operated or assisted
in the operation of an aircraft or railway equipment or had the care or control
of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was
in motion or not, the peace officer may, by demand, require the person to
comply with paragraph (a), in the case of a drug, or with either or both of
paragraphs (a) and (b), in the case of alcohol:
(a) to perform forthwith physical coordination tests prescribed by
regulation to enable the peace officer to determine whether a demand may be
made under subsection (3) or (3.1) and, if necessary, to accompany the peace
officer for that purpose; and
(b) to provide forthwith a sample of breath that, in the peace
officer’s opinion, will enable a proper analysis to be made by means of an
approved screening device and, if necessary, to accompany the peace officer for
that purpose.
Video recording
(2.1) For greater certainty, a peace officer may make a video recording
of a performance of the physical coordination tests referred to in paragraph
(2)(a).
Samples of breath or blood
(3) If a peace officer has reasonable grounds to believe that a
person is committing, or at any time within the preceding three hours has
committed, an offence under section 253 as a result of the consumption of
alcohol, the peace officer may, by demand made as soon as practicable, require
the person
(a) to provide, as soon as practicable,
(i) samples of breath that, in a qualified technician’s opinion, will
enable a proper analysis to be made to determine the concentration, if any, of
alcohol in the person’s blood, or
(ii) if the peace officer has reasonable grounds to believe that,
because of their physical condition, the person may be incapable of providing a
sample of breath or it would be impracticable to obtain a sample of breath,
samples of blood that, in the opinion of the qualified medical practitioner or
qualified technician taking the samples, will enable a proper analysis to be
made to determine the concentration, if any, of alcohol in the person’s blood;
and
(b) if necessary, to accompany the peace officer for that purpose.
Evaluation
(3.1) If a peace officer has reasonable grounds to believe that a
person is committing, or at any time within the preceding three hours has
committed, an offence under paragraph 253(1)(a) as a result of the consumption
of a drug or of a combination of alcohol and a drug, the peace officer may, by
demand made as soon as practicable, require the person to submit, as soon as
practicable, to an evaluation conducted by an evaluating officer to determine
whether the person’s ability to operate a motor vehicle, a vessel, an aircraft
or railway equipment is impaired by a drug or by a combination of alcohol and a
drug, and to accompany the peace officer for that purpose.
Video recording
(3.2) For greater certainty, a peace officer may make a video recording
of an evaluation referred to in subsection (3.1).
Testing for presence of alcohol
(3.3) If the evaluating officer has reasonable grounds to suspect that
the person has alcohol in their body and if a demand was not made under
paragraph (2)(b) or subsection (3), the evaluating officer may, by demand made
as soon as practicable, require the person to provide, as soon as practicable,
a sample of breath that, in the evaluating officer’s opinion, will enable a
proper analysis to be made by means of an approved instrument.
Samples of bodily substances
(3.4) If, on completion of the evaluation, the evaluating officer has
reasonable grounds to believe, based on the evaluation, that the person’s
ability to operate a motor vehicle, a vessel, an aircraft or railway equipment
is impaired by a drug or by a combination of alcohol and a drug, the evaluating
officer may, by demand made as soon as practicable, require the person to
provide, as soon as practicable,
(a) a sample of either oral fluid or urine that, in the evaluating
officer’s opinion, will enable a proper analysis to be made to determine
whether the person has a drug in their body; or
(b) samples of blood that, in the opinion of the qualified medical
practitioner or qualified technician taking the samples, will enable a proper
analysis to be made to determine whether the person has a drug in their body.
Condition
(4) Samples of blood may be taken from a person under subsection (3)
or (3.4) only by or under the direction of a qualified medical practitioner who
is satisfied that taking the samples would not endanger the person’s life or
health.
Failure or refusal to comply with demand
(5) Everyone commits an offence who, without reasonable excuse, fails
or refuses to comply with a demand made under this section.
Only one determination of guilt
(6) A person who is convicted of an offence under subsection (5) for
a failure or refusal to comply with a demand may not be convicted of another
offence under that subsection in respect of the same transaction.
Proceedings under section
255
258 (1) In
any proceedings under subsection 255(1) in respect of an offence committed
under section 253 or subsection 254(5) or in any proceedings under any of
subsections 255(2) to (3.2),
(a) where it is proved that the accused occupied the seat or position
ordinarily occupied by a person who operates a motor vehicle, vessel or
aircraft or any railway equipment or who assists in the operation of an
aircraft or of railway equipment, the accused shall be deemed to have had the
care or control of the vehicle, vessel, aircraft or railway equipment, as the
case may be, unless the accused establishes that the accused did not occupy
that seat or position for the purpose of setting the vehicle, vessel, aircraft
or railway equipment in motion or assisting in the operation of the aircraft or
railway equipment, as the case may be;
(b) the result of an analysis of a sample of the accused’s breath,
blood, urine or other bodily substance — other than a sample taken under
subsection 254(3), (3.3) or (3.4) — may be admitted in evidence even if the
accused was not warned before they gave the sample that they need not give the
sample or that the result of the analysis of the sample might be used in
evidence;
(c) where samples of the breath of the accused have been taken
pursuant to a demand made under subsection 254(3), if
(i) [Repealed before coming into force, 2008, c. 20, s. 3]
(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 conclusive proof that the concentration of alcohol in
the accused’s blood both at the time when the analyses were made and at the
time when the offence was alleged to have been committed was, if the results of
the analyses are the same, the concentration determined by the analyses and, if
the results of the analyses are different, the lowest of the concentrations
determined by the analyses, in the absence of evidence tending to show all of
the following three things — that the approved instrument was malfunctioning or
was operated improperly, that the malfunction or improper operation resulted in
the determination that the concentration of alcohol in the accused’s blood
exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of
alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol
in 100 mL of blood at the time when the offence was alleged to have been
committed;
(d) if a sample of the accused’s blood has been taken under
subsection 254(3) or section 256 or with the accused’s consent and if
(i) at the time the sample was taken, the person taking the sample
took an additional sample of the blood of the accused and one of the samples
was retained to permit an analysis of it to be made by or on behalf of the
accused and, in the case where the accused makes a request within six months
from the taking of the samples, one of the samples was ordered to be released
under subsection (4),
(ii) both samples referred to in subparagraph (i) were taken as soon
as practicable and in any event not later than two hours after the time when
the offence was alleged to have been committed,
(iii) both samples referred to in subparagraph (i) were taken by a
qualified medical practitioner or a qualified technician under the direction of
a qualified medical practitioner,
(iv) both samples referred to in subparagraph (i) were received from
the accused directly into, or placed directly into, approved containers that
were subsequently sealed, and
(v) an analysis was made by an analyst of at least one of the
samples,
evidence of the result of
the analysis is conclusive proof that the concentration of alcohol in the
accused’s blood both at the time when the samples were taken and at the time
when the offence was alleged to have been committed was the concentration
determined by the analysis or, if more than one sample was analyzed and the
results of the analyses are the same, the concentration determined by the
analyses and, if the results of the analyses are different, the lowest of the
concentrations determined by the analyses, in the absence of evidence tending
to show all of the following three things — that the analysis was performed
improperly, that the improper performance resulted in the determination that
the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol
in 100 mL of blood, and that the concentration of alcohol in the accused’s
blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at
the time when the offence was alleged to have been committed;
(d.01) for greater certainty, evidence tending to show that an approved
instrument was malfunctioning or was operated improperly, or that an analysis
of a sample of the accused’s blood was performed improperly, does not include
evidence of
(i) the amount of alcohol that the accused consumed,
(ii) the rate at which the alcohol that the accused consumed would
have been absorbed and eliminated by the accused’s body, or
(iii) a calculation based on that evidence of what the concentration of
alcohol in the accused’s blood would have been at the time when the offence was
alleged to have been committed;
(d.1) if samples of the accused’s breath or a sample of the accused’s
blood have been taken as described in paragraph (c) or (d) under the conditions
described in that paragraph and the results of the analyses show a
concentration of alcohol in blood exceeding 80 mg of alcohol in 100 mL of
blood, evidence of the results of the analyses is proof that the concentration
of alcohol in the accused’s blood at the time when the offence was alleged to
have been committed exceeded 80 mg of alcohol in 100 mL of blood, in the
absence of evidence tending to show that the accused’s consumption of alcohol
was consistent with both
(i) a concentration of alcohol in the accused’s blood that did not
exceed 80 mg of alcohol in 100 mL of blood at the time when the offence was
alleged to have been committed, and
(ii) the concentration of alcohol in the accused’s blood as determined
under paragraph (c) or (d), as the case may be, at the time when the sample or
samples were taken;
(e) a certificate of an analyst stating that the analyst has made an
analysis of a sample of the blood, urine, breath or other bodily substance of
the accused and stating the result of that analysis 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;
(f) a certificate of an analyst stating that the analyst has made an
analysis of a sample of an alcohol standard that is identified in the
certificate and intended for use with an approved instrument and that the
sample of the standard analyzed by the analyst was found to be suitable for use
with an approved instrument, is evidence that the alcohol standard so
identified is suitable for use with an approved instrument without proof of the
signature or the official character of the person appearing to have signed the
certificate;
(f.1) the document printed out from an approved instrument and signed
by a qualified technician who certifies it to be the printout produced by the
approved instrument when it made the analysis of a sample of the accused’s
breath is evidence of the facts alleged in the document without proof of the
signature or official character of the person appearing to have signed it;
(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,
(A) [Repealed before coming into force, 2008, c. 20, s. 3]
(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;
(h) if a sample of the accused’s blood has been taken under
subsection 254(3) or (3.4) or section 256 or with the accused’s consent,
(i) a certificate of a qualified medical practitioner stating that
(A) they took the sample and before the sample was taken they were of
the opinion that taking it would not endanger the accused’s life or health and,
in the case of a demand made under section 256, that by reason of any physical
or mental condition of the accused that resulted from the consumption of
alcohol or a drug, the accident or any other occurrence related to or resulting
from the accident, the accused was unable to consent to the taking of the
sample,
(B) at the time the sample was taken, an additional sample of the
blood of the accused was taken to permit analysis of one of the samples to be
made by or on behalf of the accused,
(C) the time when and place where both samples referred to in clause
(B) were taken, and
(D) both samples referred to in clause (B) were received from the
accused directly into, or placed directly into, approved containers that were subsequently
sealed and that are identified in the certificate,
(ii) a certificate of a qualified medical practitioner stating that
the medical practitioner caused the sample to be taken by a qualified
technician under his direction and that before the sample was taken the
qualified medical practitioner was of the opinion referred to in clause (i)(A),
or
(iii) a certificate of a qualified technician stating that the
technician took the sample and the facts referred to in clauses (i)(B) to (D)
is evidence of the facts
alleged in the certificate without proof of the signature or official character
of the person appearing to have signed the certificate; and
(i) a certificate of an analyst stating that the analyst has made an
analysis of a sample of the blood of the accused that was contained in a sealed
approved container identified in the certificate, the date on which and place
where the sample was analyzed and the result of that analysis is evidence of
the facts alleged in the certificate without proof of the signature or official
character of the person appearing to have signed it.
Evidence of failure to give sample
(2) Unless a person is required to give a sample of a bodily
substance under paragraph 254(2)(b) or subsection 254(3), (3.3) or (3.4),
evidence that they failed or refused to give a sample for analysis for the
purposes of this section or that a sample was not taken is not admissible and
the failure, refusal or fact that a sample was not taken shall not be the
subject of comment by any person in the proceedings.
Evidence of failure to comply with demand
(3) In any proceedings under subsection 255(1) in respect of an
offence committed under paragraph 253(1)(a) or in any proceedings under
subsection 255(2) or (3), evidence that the accused, without reasonable excuse,
failed or refused to comply with a demand made under section 254 is admissible
and the court may draw an inference adverse to the accused from that evidence.
Release of sample for analysis
(4) If, at the time a sample of an accused’s blood is taken, an
additional sample is taken and retained, a judge of a superior court of
criminal jurisdiction or a court of criminal jurisdiction shall, on the summary
application of the accused made within six months after the day on which the
samples were taken, order the release of one of the samples for the purpose of
examination or analysis, subject to any terms that appear to be necessary or
desirable to ensure that the sample is safeguarded and preserved for use in any
proceedings in respect of which it was taken.
Testing of blood for concentration of a drug
(5) A sample of an accused’s blood taken under subsection 254(3) or
section 256 or with the accused’s consent for the purpose of analysis to
determine the concentration, if any, of alcohol in the blood may be tested to
determine the concentration, if any, of a drug in the blood.
Attendance and right to cross-examine
(6) A party against whom a certificate described in paragraph (1)(e),
(f), (f.1), (g), (h) or (i) is produced may, with leave of the court, require
the attendance of the qualified medical practitioner, analyst or qualified
technician, as the case may be, for the purposes of cross-examination.
Notice of intention to produce certificate
(7) No certificate shall be received in evidence pursuant to
paragraph (1)(e), (f), (g), (h) or (i) unless the party intending to produce it
has, before the trial, given to the other party reasonable notice of his
intention and a copy of the certificate.
Appeal
dismissed, McLachlin C.J.
and Abella, Brown and Rowe JJ. dissenting.
Solicitors for the
appellant: Mott Welsh & Associates, Penticton.
Solicitor for the
respondent: Attorney General of British Columbia, Victoria.
Solicitor for the
intervener the Attorney General of Ontario: Attorney General of Ontario,
Toronto.
Solicitors for the
intervener the Criminal Lawyers’ Association (Ontario): Jonathan M.
Rosenthal, Toronto.