The Supreme Court has now made it clear, through their judgment in R. v. Alex, that a “lawful demand” is not a prerequisite for relying a certificate to prove that a driver’s blood alcohol concentration was over the legal limit.
Sections 258(1)(c) and 258(1)(g) of the Criminal Code provide the Crown “evidentiary shortcuts” to proving that a person’s blood alcohol concentration exceeded the legal limits at the time that he or she operated (or had care and control of) a motor vehicle. S. 258(1)(c) states that when a breath sample is taken “pursuant to a demand” under the relevant section, and if certain preconditions are met, the Crown may file a certificate setting out the results of the breath test and this evidence shall create a presumption of illegal levels of alcohol at the relevant time. The Crown is thus saved from having to call the Breath Technician and a toxicologist to testify as to the taking of the samples and the scientific significance of them.
The question dealt with in R. v. Alex is this: what if the demand from the police was made illegally?
What if the police had no legal authority to make the demand that they did, but the accused complied, thinking he or she had to? Can the Crown still rely on this evidentiary shortcut, so long as the other preconditions are met?
The answer, according to this Supreme Court of Canada decision is: yes, they may. The certificate is presumptive evidence of the Blood Alcohol Content at the time of driving, even if the demand that gave rise to the sample taken was made unlawfully.
Does this then mean that accused persons have no recourse when police have made unlawful demands leading to unlawfully-obtained breath samples? No. The breath samples may still be excluded entirely if the accused can establish that the unlawful demand violated his or her Section 8 Charter rights to be free from unreasonable search and seizure and that the resultant samples ought to be excluded under Section 24(2) of the Charter.
The Supreme Court essentially found that it was not Parliament’s intention to tie the evidentiary shortcuts to the issue of state compliance with the law during drinking and driving investigations. For the majority in Alex, there are other ways to address police behaviour, breaches of privacy rights, and compliance with the Criminal Code on the part of investigating officers. In their view, the Section 258(1) shortcuts are meant to address inefficiencies in Over 80 trials. They do not see the value in requiring the Crown to “take the long route” of calling a breath technician and a toxicologist to address evidentiary issues that have nothing to do with the lawfulness of the initial breath demand.
In this sense, the disconnect between the harm and the remedy is indeed quite stark. If the evidence was obtained as a result of Charter breach, and the judge determines that exclusion is appropriate, then the Crown has no ability to secure a conviction (nor should it). To ask the Crown to jump through a few unrelated hoops to “make up” for the unlawful arrest seems somewhat irrational.
However, despite the logic apparent in this conclusion, there are implications to this decision beyond its basic holding.
As a matter of statutory interpretation, the minority’s opposing view on the matter is compelling: Parliament could not have possibly meant that any demand engages the right to this evidentiary shortcut, no matter if the demand was founded or unfounded, legal or illegal, made by a peace officer or a six-year-old child.
As a practical matter, there are other remedies, as stated above, for any of the obvious deficiencies in the demand itself. It is not necessary as a practical matter to tie the deficiencies of the demand to this particular evidentiary shortcut. But the majority’s reading of the Code section is troubling in and of itself. If the legality of police action is not presumptively required to trigger various obligations that result from such action, this may result in impossible choices for accused persons.
The majority itself addresses the analogy made between its conclusion in this case and the separate offence of Refuse to Comply with a breath demand. With respect to the latter offence, the illegality of the demand does give rise to a defence. It is only a crime to refuse a valid demand. The majority in Alex explains that this is a different issue, as the refusal relates to disobedience (not unlike an obstruction), while the Over 80 offence relates to the fact of drinking and driving. And the evidentiary shortcut in question just relates to the way in which the fact of drinking and driving is presented at trial.
But where does this leave a person who has been given what they believe to be an unlawful demand? An argument can be made that as a result of this decision, an accused person will have the incentive is to refuse a demand that they think may be unlawful. Why? Because at trial for the Refusal, the unlawfulness of the demand will set him free; at trial for an Over 80 charge, the unlawfulness of the demand will not hinder the Crown’s ability to prove his alcohol concentration (so long as the samples are not excluded). The majority in Alex justifies their decision stating:
It remains a dangerous gamble for an individual to deliberately refuse a breath demand. If the demand is later found to be lawful, that person may be convicted, even if he or she was actually under the proscribed limit.
The problem with this reasoning is this: It asks Canadian citizens to know the specifics of police authority and the prescribed limits on these powers better than the police do. It also asks Canadian civilians to predict – in the moment – the likely outcome of complex legal analysis at a prospective trial a year or more down the road. The police may act outside of lawful authority in demanding compliance with a breath sample, and it is up to the civilian to determine, on the spot, if the police officer acted correctly or incorrectly and how such an analysis would play out in a court of law. Risk assessment aside, Canadians are put in a position where they may very well: (a) reply to police misconduct with unadvisable, unnecessary and harmful acquiescence, or (b) actually commit a fresh criminal offence on the rational (if ultimately incorrect) assessment that it is in their best interest to refuse to comply with a demand that is perceived to be unlawful.
No, in fairness, the effect that the unlawfulness of the demand has on this one discreet issue – the Crown’s evidentiary shortcut – may not be enough to tip the scales for an accused person trying to decide whether or not to comply with a demand they believe may be unlawful. But, in theory at least, it changes that assessment and may force Canadians to react to (perceived) police misconduct with self-inculpation.
This decision must be viewed – as most things Criminal Law are these days – in the context of the R. v. Jordan decision on delay. At stake in Alex is the use of an evidentiary shortcut designed to specifically save the Crown from calling two extra witnesses for every single Over 80 trial. Not only would one-day trials become two-day trials (for example), but officer availability, toxicologist availability, and the time associated with the provision and challenging of a toxicologist report would all serve to add to delay at a time when everybody in the justice system is scrambling to reduce it.
This is not lost on the majority in Alex, who write:
 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,  1 S.C.R. 631, at paras. 2-3 and 19-28.
This concern is well-understood. But what does it mean for accused persons and for the public interest in requiring police properly execute their duties in compliance with the law? It just means the rights and remedies under the Charter are that much more important. What does it mean for defence lawyers charged with defending accused and this public interest?
It means: bring your Charter motions!
The Supreme Court has decided that absent a Section 8 Charter motion, self-implication resulting from a demand that ought to have properly been refused may be used – with an evidentiary shortcut – to secure a conviction. So, put simply, as all participants seek to comply with Jordan and its principles, let us keep R. v. Alex in mind the next time a Crown or Justice accuses defence counsel of being irresponsible and the bane of fair and timely justice when we readily bring and enthusiastically argue Charter motions.
Thus, creating the very problem that the road chosen was taken to avoid it.