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Drunk Driving Cases. Technicalities and Loopholes

Drunk driving is broadly condemned and approval for those charged “getting off on a technicality” in short supply. But for protection of our personal freedoms, drunk driving laws are necessarily highly technical, resulting in court decisions (and media reports of same) that often read like puzzlers.

Take R. v. Alex, for example, a recent Supreme Court of Canada (SCC) decision arising from an incident that occurred in April 2012, in Penticton, BC, when a local man, while driving his van, was stopped by the RCMP. Detecting the smell of alcohol and noting an open beer passenger-side, the police administered a roadside breath test that the driver failed. Then, at the police station, the driver twice registered breathalyzer test results above the legal blood alcohol limit. The driver was convicted of drunk driving at trial, and after exhausting all possible appeals did not get off on a technicality.

The case is a noteworthy example, however, of the technicality of defenses to such charges, and the complexity of judicial decision-making, reflected in the 5 to 4 majority/minority ruling of the Supreme Court of Canada (“SCC”).

The trial judge agreed that while the demand for the breath sample was unlawful, this did not preclude the Crown from relying on the evidentiary shortcut provided in law whereby the certificate recording the breathalyzer tests could be entered into evidence to establish their accuracy without requiring the testimony of technicians and toxicologists.

The trial judge cited a 1976 SCC supportive ruling. In light of the subsequent enactment of the Canadian Charter of Rights and Freedoms, the case discussed above, R. v. Alex, raised the issue as to whether or not the 1976 case remained reliable ‘good law’.

The majority of the SCC ruled that under the Charter, even without lawful demand, the Crown could still rely on the certificate. For the majority of the court, Justice Michael Moldaver wrote, “When ss. 258(1)(c) and 258(1)(g) [of the Criminal Code] 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 [thereby] found to be inadmissible … Resort to the evidentiary shortcuts will be a non-issue. On the other hand, if the taking of the samples is subjected to Charter … scrutiny and the breath test results are found to be admissible in evidence — either because no Charter s.8 breach occurred or because the evidence survived … scrutiny — the shortcuts should remain available to the Crown. … Concluding otherwise would … 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 … 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.”

Of course, the surest way to avoid the head-scratching puzzlement in comprehending modern drunk driving laws is simple: Don’t drink and drive.

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