Sections 258(1)(c) and 258(1)(g) of the Criminal Code permit the entry of evidence relating to results from a breathalyser test without the Crown needing to call expert witnesses who can attest to the accuracy of the machine and the results. Specifically, s. 258(1)(c) requires that two samples be taken as soon as possible (and not later than two hours) with fifteen minutes between each; that the sample was taken by an approved instrument operated by a qualified technician; and that the analysis was made by an approved instrument operated by a qualified technician. In the same vein, s. 258(1)(g) permits the qualified technician to sign a certificate provided similar provisions are met.
The two sections, read in concert, allow the prosecution to do three things without calling the technician or a toxicologist as a witness: first, to introduce the data despite the fact that it is technically hearsay; second, to assert that the breath test results are accurate; third, that the results identify the accused’s blood-alcohol content at the time of arrest. Importantly, these rules “affect only the manner of admission — specifically, whether the Crown must call two additional witnesses”. (at para 20) They do not presumptively permit the inclusion of this evidence, and are merely intended to make the trials and the routine introduction of this kind of evidence more efficient.
At issue in the ruling was the way these rules interacted with Rilling, where, according to the majority, “held that it was unnecessary for the Crown to prove a lawful demand in order to rely on the evidentiary shortcuts.” (at para 6) Put another way, Rilling allows police to enter evidence under ss. 258(1)(c) and 258(1)(g) even if that evidence were gathered unlawfully. The evidence can be challenged under different measures—through, say, s. 24 of the Charter—but not, as the majority determined, in Rilling, through s. 258.
Mr. Alex attempted to argue that ss. 258(1)(c) and 258(1)(g), by referring to s. 254(3) of the Criminal Code, import that section’s requirement that any search be performed lawfully. Put another way, for a search to be valid under s. 254(3), the police must have reasonable grounds to believe the person has committed a drunk driving offence. Were ss. 258(1)(c) and 258(1)(g) to import this reasonable ground requirement, the evidence obtained by a breathalyser and introduced under those two sections would also require that the breath samples be gathered lawfully.
The majority decided that it was not necessary to determine whether Rilling was correctly decided, as ss. 258(1)(c) and 258(1)(g) do not import a requirement of lawful search—a broader reading of the statute shows that Parliament had no intention of importing the lawful requirement into the shortcut. Further, the sections in question do not need to, given the accused’s ability to challenge the lawfulness on ss. 8 and 24(2) of the Charter.
Furthermore, the majority recognized that “The evidentiary shortcuts are intended to avoid needless delays in drinking and driving proceedings.” (Para 36) Were Rilling to be overturned in this instance, the efficiency of drunk driving trials would be uniformly negatively impacted: “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.” (para 37) To that effect, the majority pointed to R. v. Jordan, and the renewed commitment of courts to remove unnecessary delays in the trial process as another reason for not revisiting Rilling.
The minority—written by Justice Rowe, but with Justices Abella, Browne, and outgoing Chief Justice McLachlin, assenting—stated that Rilling should be overturned. In part this was due to the way in which the majority in Rilling, according to Justice Rowe, “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.” (Para 87) Further, the dissent argued that the majority was wrong to move beyond merely a statutory interpretation, and that examining the language of the section was sufficient to import the requirement for a lawful search.
This blog post was written by a CCLA summer law student. Views expressed do not necessarily reflect the view of the CCLA.