Published On: Aug 15,2017
On July 6th, 2017, the Supreme Court of Canada, in a DUI case, ruled that a police officer and the Crown is not required to establish reasonable and probable grounds for a lawful breath demand for the purposes of a Section 258 of the Criminal Code of Canada
In R. v. Alex, 2017 SCC 37 the Supreme Court of Canada was asked to consider whether sections 258(1)(c) and (g) of the Criminal Code of Canada (the “Code”) requires a police officer to have reasonable and probable grounds in order to make an evidentiary demand as a pre-condition governing the admissibility of the certificate of analysis, which captures the evidentiary breath readings of an accused person who has been charged for DUI or “Over-80”). Mr. Alex’s Criminal Lawyers argued that the subsections of 258 of the Code imposes such a requirement. Section 258(1)(g) establishes 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 to call for oral evidence. 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. The purpose of these evidentiary short-cuts, according to the Court, 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. These shortcuts, however, do not affect the issue of whether the accused’s breath readings are admissible or not. They only impact the manner of admission — specifically, whether the Crown must call two (2) additional witnesses: (i) one to verify the accuracy of the certificate and enter it as an exhibit, and (ii) 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,  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.
Thus the central question for the Court was 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.
The Majority decision of the Supreme Court of Canada decided that it doesn’t imposed such a requirement. It used the modern principles of statutory interpretation to arrive at its conclusion. Parliament did not include the word “lawful” within section 258(1)(c) or (g) of the Criminal Code and when read in light of its over context, above and beyond the plain meaning of the sections, the lawfulness of the demand had no bearing on the manner in which the Certificate of Analysis, containing the blood-alcohol breath readings, could be introduced during a trial of a DUI matter. Effectively, the Court found that it was lawfulness of a demand was not a condition precedent to the manner in which the Certificate of Analysis could be introduced. It further consider that that Section 8 of the Canadian Charter of Rights and Freedoms could be invoked, should a Criminal DUI lawyer decide to file the requisite notice to seek the exclusion of breath samples at trial by positing that they were inadmissible due to a breach of an accused’s persons right to be free from an unreasonable search and seizure.
The Court further reasoned that if such a line of reasoning and logic were adopted as suggested by the Mr. Alex’s criminal lawyers,
“….in many cases, trial scheduling would have to account for the possibility that two (2) 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.”
The majority decision appears to be in inline with the it’s recent judicial pronouncements in Regina v. Jordan and Regina v. Cody where in the Court set out the new rules and law under Section 11(b) of the Charter to ensure timely trials.
For more general information about DUI charges, please refer to our link on DUIs and Over 80 offences.
If you have been charged with DUI and Over-80, this case underscores the importance of ensure that your rights under Section 8 of the Canadian Charter or Rights and Freedoms are thoroughly canvassed to ensure that all possible defences undergird a Charter Notice (where applicable) and filed in the Court prior to your trial. To make arrangements, for a free initial thirty (30) minute telephone consultation, during our regular office hours, please contact J.S. Patel, Criminal DUI Lawyer at 403-585-1960 (Calgary) or 1-888-695-2211 (Toronto).*** The opinions expressed in this Blog are not a substitute for full and through legal advice. It is not meant to be used a fulsome account of entire decision and area of law discussed.