R. v. Alex

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.

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.

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.

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.

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.

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.

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”.

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.

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.

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.

I would accordingly dismiss the appeal.

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.

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 . . .

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;

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.

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 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.

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.

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.

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.

These arguments are addressed in turn below. With respect, I find each to be unconvincing.

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.

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.

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.

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.

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).

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.]

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.

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).

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.

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.

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.

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.

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 (B.C.C.A.), at para. 29; see also R. v. Plummer (2006), 83 O.R. (3d) 528 (C.A.), at paras. 1 and 48-49.

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 Taraschuk v. The Queen, [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.

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.

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. (dissenting) —

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.

The trial judge made the following finding of facts; these are not in dispute.

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.

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.

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.

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;

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.

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.

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.

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]

Thus, he was “satisfied beyond a reasonable doubt of the accused’s guilt on the over 80 count” and convicted Mr. Alex (p. 10).

Schultes J. dismissed Mr. Alex’s appeal.

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.

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).

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).

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)).

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.

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).

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.

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)?

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.

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).

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.

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.

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.

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.

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.

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 Wray) with the operation of the evidentiary shortcuts (per s. 258(1) of the Code).

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.

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]

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.

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.

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.

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).

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).

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.

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) . . . .”

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.

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).

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 8requires 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.]

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)).

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.

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]

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 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).

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.

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.

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.

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.

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.

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.

In light of the foregoing, I would allow the appeal, set aside Mr. Alex’s conviction and order a new trial.