Admissibility of breathalyzer evidence in some impaired driving cases to be considered by Supreme Court of Canada

The Supreme Court of Canada will hear an appeal from a B.C. motorist, convicted under the Criminal Code of operating a vehicle while impaired, over the question of whether a 1975 ruling from Canada’s highest court is still valid in cases where a police officer demands a breath sample without necessarily having a reasonable suspicion.

Canada’s highest court announced Thursday it has granted Dion Henry Alex leave to appeal a conviction of having care or control of his vehicle while having a blood level alcohol greater than .08%.

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In April, 2012 an officer with the Royal Canadian Mounted Police was working on foot in Penticton, conducting seatbelt checks. He ordered Alex to stop his van, testified that he smelled alcohol and saw an open can of beer on the floor of the vehicle. He directed Alex to park his vehicle and demanded he breathe into an alcohol screening device. Alex registered a fail and a breathalyzer test indicated he had 130 mg of alcohol per 100 mL of blood.

In a ruling released Oct. 21, 2015, the B.C. Court of Appeal upheld a ruling from a summary appeal judge.

A question before the court was whether the Supreme Court of Canada decision in Rilling vs. The Queen – released in June, 1975 – “remains good law in circumstances where a reasonable suspicion may not have existed for demanding a breath sample,” and where Section 8 of the Canadian Charter of Rights and Freedoms “was not invoked by the accused as a bar to the admissibility of a breathalyzer certificate.”

Section 8 of the Charter of Rights (passed in 1982) stipulates that Canadians have the right to be free from unreasonable search and seizure.

The B.C. Court of Appeal found that the Rilling decision is still valid.

On Dec. 17, Alex filed for leave to appeal with the Supreme Court of Canada, which announced March 17, 2016 that it is granting Alex leave to appeal.

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In 1972, Ronald Joseph Rilling was charged, in Edmonton, of driving with more than 80 milligrams of alcohol in 100 millilitres of blood. The crown attorney applied to introduce into evidence a certificate of analysis showing Rilling’s blood alcohol level. The defence objected, contending there was no evidence that the arresting officer had reasonable or probable grounds to believe Rilling had been impaired. But Rilling was convicted and his conviction was upheld on appeal.

The appellate division of the Supreme Court of Alberta found, in 1973, that “while absence of reasonable and probable grounds for belief of impairment may afford a defence to a charge of refusal to submit to a breathalyzer test …. it does not render inadmissible certificate evidence” in the case of a charge of driving with a blood alchohol level greater than .08%.

“The motive which actuates a peace officer in making a demand [under the Criminal Code of Canada] is not a relevant consideration when the demand has been acceded to,” the appellate court ruled.

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In 1975, five of the eight Supreme Court of Canada judges hearing Rilling’s appeal sided with the Alberta appellate court.

But in 1968 and 1969, the Canadian government introduced amendments to the Criminal Code 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,” Mr. Justice Wishart Flett Spence wrote in his dissenting ruling. “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.”

Dissenting in Rilling in 1975 with Justice Spence were then-Chief Justice Bora Laskin and Mr. Justice Brian Dickson, Chief Justice of Canada from 1984 to 1990.

“The consequence of upholding Rilling is merely procedural: an accused need only invoke s. 8 of the Charter at the time the Crown proffers the evidence at trial, and the court will be bound to consider whether its admissibility would bring the administration of justice into disrepute,” wrote Madam Justice Mary Newbury of the B.C. Court of Appeal, in its ruling against Alex in October, 2015. Mr. Justice David Harris and Mr. Justice Richard Goepel agreed.

The B.C. Court of Appeal cited case history, including the 1995 Supreme Court of Canada ruling in R. vs. Bernshaw.

In April, 1991, a police officer in British Columbia noticed a car driving 65 km/hour in a 50 km /h zone, which was drifting from the far side of the shoulder to the centre of the road and back again. The officer pulled the vehicle over and demanded a breath sample from Nathen Bernshaw. The screening device recorded a fail.

A provincial court admitted the breathalyzer evidence and convicted Bernshaw. That ruling was upheld by the Supreme Court of B.C. but overturned by the B.C. Court of Appeal, which found that “the failure of the police officer to take the precautions necessary to ensure the reliability of the test by the screening device leads to the conclusion that he did not have reasonable and probable ground” to make a demand for a breathalyzer test.

The Supreme Court of Canada allowed the crown appeal in Bernshaw. A question before the court was whether B.C. appeal court erred in ruling “that the results of an analysis of breath samples performed with an approved breathalyzer instrument are automatically inadmissible in evidence if the Crown has not proved that the officer who made the demand for breath samples had reasonable and probable grounds…”

Four separate rulings were issued.

One of those was written by Mr. Justice Peter Cory on behalf of himself, then-Chief Justice Antonio Lamer and Mr. Justice Frank Iacobucci.

The Charter of Rights is relevant, but “where an accused complies with the breathalyzer demand, the Crown need not prove as part of its case that it had reasonable and probable grounds to make that demand,” Justice Cory wrote. “Rather, I think, the onus rests upon the accused to establish on the balance of probabilities that there has been a Charter breach and that, under s. 24(2), the evidence should be excluded. There should not be an automatic exclusion of the breathalyzer test results.”

But a fail result on a breathalyzer does not necessarily provide reasonable and probable grounds, suggested Mr. Justice John Sopinka in the ruling in Bernshaw he wrote on behalf of himself, Madam Justice Beverly McLachlin (Chief Justice since 2000), Mr. Justice Gérard La Forest and Mr. Justice Jack Major (who retired from the bench in 2005 to practice law for Bennett Jones).

Those four judges agreed to allow the crown appeal but did not agree with the reasons given by Justices Cory, Iacobucci and Lamer.

“It is necessary to determine as a question of fact in each case whether or not the police officer had an honest belief based on reasonable and probable grounds that the suspect had committed an offence” under the Criminal Code, Justice Sopinka wrote in 1995 in Bernshaw.

“The decision as to whether a peace officer believes on reasonable and probable grounds that an offence is being committed and, therefore, that a demand is authorized [under the Criminal Code] must be based on the circumstances of the case,” Justice Sopinka added. “It is, therefore, essentially a question of fact and not one of pure law.”

Based on case history from Bernshaw and other impaired driving cases, the B.C. appeal court concluded, in 2015 Alex, “that where no Charter challenge is advanced, the admissibility of a certificate under [Section 254 of the Criminal Code of Canada] and the operation of the presumptions of identity and accuracy in [section 258 of the Criminal Code] remain governed by Rilling unless and until the Supreme Court of Canada sees fit to overrule it.”