Back in 1975, the Supreme Court of Canada made a groundbreaking decision on drunk driving. The decision was about the admissibility of breathalyzer test results presented in court. In this decision, the Court held that breathalyzer results, even absent evidence the breath sample was lawfully obtained, could still be used in court to convict a driver for being over the blood alcohol limit, with this caveat: as long as the driver did in fact provide a breath sample, and a certificate of analysis was admitted into evidence.
In plain English, what the court was saying is that if you provided a breath sample, even if the demand for the breath sample was unlawful, the results of that breath test could be used against you in court.
Since then, courts across the country have gone back and forth about whether that decision remains good law or whether it's absolutely bonkers that unlawfully obtained evidence is somehow still admissible in court.
But I thought the breath demand was unlawful. How can they do this?
The court was not saying that it is entirely acceptable for police to demand breath samples without lawful justification. For example, in cases of refusal to provide a breath sample, an invalid demand will mean that the refusal charge cannot succeed. However, a driver who refuses to blow plays a dangerous game: refusing to provide a sample is a criminal offence, and if you incorrectly judge the demand to be unlawful, you're liable to receive the same consequences as if you had blown. But in cases where breath sample evidence is obtained, whether the Certificate of Analysis can be admitted to prove the blood alcohol concentration was constrained by Section 236(1)(f), as it was at the time.
The question before the court at the time was whether this Certificate alone could be used to prove the Crown’s case that a driver had been behind the wheel while over the legal limit. Even among the courts, there was a conflict in opinions on whether the Crown could still use this evidence when an officer’s demand for a sample wasn’t reasonable. Eventually, it came down to a split 5-3 decision at Canada’s highest court. And that split sowed the seeds of dissension among lower court judges for the next thirty years.
The court determined that the belief that a breath sample demand was made unlawfully can be a defence when you’re being charged with s. 235(2) – refusing to provide a breath sample. But this defence doesn’t mean the results of the breath sample certificate of analysis was then inadmissible.
OK. So what does a drunk driving decision 40 years ago have to do with today?
Recently, a driver, Mr. Alex, tried to make a nearly identical challenge. He argued that the Rilling decision from the Supreme Court of Canada was no longer good law.
How drunk driving, or more specifically, over the limit cases are dealt with is different today, thanks to the Charter protections introduced in 1982. In part, due to the introduction of the Charter, lower courts have had trouble making consistent rulings when similar matters are brought up. Because the court is supposed to interpret legislation in a manner that is consistent with Charter values, a requirement that breath sample results be taken pursuant to a lawful demand might require the lawfulness of the demand to be proven in the Crown's case, before the breath sample evidence is preemptively admissible.
In the recent case, the driver had attempted to challenge the Crown’s evidence by suggesting again, that the breath sample demand was unlawful. The argument, acknowledged by a few of the judges on the Supreme Court panel, was that there’s been enough change in the law that the 1976 decision should no longer be upheld. Interestingly, the split was bigger this time: 5-4. The Chief Justice was among the dissenting voices, which can hold some sway down the road if the Court again is asked to revisit this decision.
It is inevitable that they will be.
Most importantly, two sections of the Canadian Charter of Rights and Freedoms affect how police may obtain evidence and use that evidence in court. Section 8 provides that everyone has the right to be secure against unreasonable search and seizure. A warrantless search is preemptively unreasonable, unless it is authorized by law, the law is reasonable, and the manner in which the search is conducted is reasonable. Because the breath demand is the legal authorization for the warrantless search for breath samples, compliance with its provisions is of the utmost importance.
Section 24(2), meanwhile, holds that illegally obtained evidence cannot be used in court – if its admission would “bring the administration of justice into disrepute. For a while, Section 24(2) of the Charter was interpreted to allow for any evidence obtained from an accused by conscription, meaning if they were forced to provide it, was presumptively inadmissible. Because an accused person was required to provide breath samples, under threat of refusal prosecution if they did not, the evidence was always excluded. However, in 2009, the Supreme Court of Canada revisited the test for conscriptive versus non-conscriptive evidence, and adopted a more flexible approach. Now, a driver must show that admission of the evidence would bring the administration of justice into disrepute by weighing the seriousness of the breach, the impact of the breach on the accused and their Charter rights, and society's interest in adjudication of the case on the merits.
So Why did Mr. Alex Not Succeed?
Well, the Court's ability to consider this depends on whether the driver has raised an appropriate Charter challenge. In the most recent case heard by the Supreme Court of Canada, R. v. Alex, the driver attempted to prove that the Certificate of analysis – considered a “shortcut” by the court to prove the specific blood alcohol level at the time of driving – cannot be accepted into evidence, and that the Rilling case was wrongly decided.
Unfortunately, it appears the driver brought the wrong argument. The court held that even if it found the Certificate of Analysis couldn’t be admitted as evidence, the Crown could still call on a breath technician and an expert toxicologist to establish the admissibility of the breath sample results. Of course, this requires giving notice to the accused a minimum of 30 days in advance of trial. This also necessarily lengthens and prolongs trial. The majority of the Supreme Court of Canada determined that even if the driver was right, he would not automatically be found innocent. The finding would just result in longer trials. And given other recent decisions from the Court, longer trials mean more court delays, which are not good for the justice system.
The Supreme Court of Canada noted that all this driver had to do was bring up a separate challenge that his Charter rights had been breached, instead of trying to tear down a 40-year-old decision altogether. Even though I do agree with Mr. Alex, I have to say that the failure to simply raise this as both an issue at trial and an issue for a Charter challenge appears short-sighted.
But the Supreme Court of Canada might have missed the point. When a Charter challenge is brought to the admissibility of breath samples as a result of a defective demand, the process becomes lengthy anyway. First, the court has to hold something called a voir dire, which is a trial-within-a-trial, to determine whether the Charter rights were breached. Because of how the Grant decision deals with the overall admissibility question, the accused may have to have several voir dires, or a blended voir dire addressing all alleged Charter violations, in order to determine whether breath sample results should be admissible. Basically, more breaches mean more likelihood evidence is to be excluded. And due to the nature of how impaired driving investigations are done, the entire case for the Crown ends up being subject to voir dire and Charter challenge.
So the whole trial is usually heard in a voir dire. Then there is argument, then a decision on whether there were breaches, and then further argument related to admissibility. And all of a sudden, a trial that could have lasted a day is now taking three or four days. Not that the Supreme Court of Canada was aware of that. My point is that limiting Certificate admissibility to a Charter challenge does not assist in shortening trials. It probably means the opposite.
How might drunk driving laws change in the future?
The federal Liberal government’s proposed reforms to the Criminal Code impaired driving legislation include tightening the presumptions that the Crown can rely on in proving breathalyzer results. They include unconstitutional limits on disclsoure rights and defences. If the Crown has it even easier in proving that a person's blood alcohol level in the Certificate was the level at the time of driving, the courts could be persuaded to either adopt the dissent in Alex, or to revisit the Alex/Rilling issue yet again. And this might be the straw that break's the camel's back.
We saw 5-3 turn into 5-4. Will we see the issue finally flip sides? It may be that the Government's plan to revise the impaired driving legislation actually shoots them in the foot insofar as making it harder to prove admissibility. It’s clear that all judges in Canada may not be supportive of these changes, and whether or not the proposed legislative changes would withstand judicial scrutiny is a question that may be decided sooner than we think.
Vancouver Criminal Lawyer with a focus on impaired driving, cannabis legalization and related issues, and immediate roadside prohibition defence.