R. v. Alex

R. v. Alex
Collection
Supreme Court Judgments
Date
2017-07-06
Neutral citation
2017 SCC 37
Report
[2017] 1 SCR 967
Case number
36771
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm
On appeal from
British Columbia
Subjects
Criminal law
Notes
SCC Case Information: 36771
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Alex, 2017 SCC 37, [2017] 1 S.C.R. 967
Appeal heard: December 8, 2016
Judgment rendered: July 6, 2017
Docket: 36771
Between:
Dion Henry Alex
Appellant
and
Her Majesty The Queen
Respondent
- and -
Attorney General of Ontario and Criminal Lawyers’ Association (Ontario)
Interveners
Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
Reasons for Judgment:
(paras. 1 to 51)
Moldaver J. (Karakatsanis, Wagner, Gascon and Côté JJ. concurring)
Dissenting Reasons:
(paras. 52 to 102)
Rowe J. (McLachlin C.J. and Abella and Brown JJ. concurring)
R. v. Alex, 2017 SCC 37, [2017] 1 S.C.R. 967
Dion Henry Alex Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Ontario and
Criminal Lawyers’ Association (Ontario) Interveners
Indexed as: R. v. Alex
2017 SCC 37
File No.: 36771.
2016: December 8; 2017: July 6.
Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
on appeal from the court of appeal for british columbia
Criminal law — Evidence — Admissibility — Certificate of analysis for breath test results — Accused charged with driving with blood‑alcohol level over legal limit — Statutory scheme providing for evidentiary shortcuts which permit Crown to establish, at trial, accused’s blood‑alcohol concentration at time of offence by filing certificate recording accused’s breath readings, subject to certain preconditions — Whether phrase “pursuant to a demand made under subsection 254(3)” of Criminal Code means demand for breath sample made by police must be lawful for evidentiary shortcuts to apply — Whether previous Court ruling which found that requirement of reasonable grounds to demand breath sample was not precondition to operation of shortcuts remains good law — Criminal Code, R.S.C. 1985, c. C‑46, s. 258(1) (c), (g).
A’s vehicle was stopped by the police who conducted a typical drinking and driving investigation. After A failed a roadside screening device test, he provided samples of his breath at the police station which registered readings significantly over the legal limit. A was charged with driving “over 80”, contrary to s. 253 of the Criminal Code . At trial, it was uncontested that A provided the breath samples into an approved instrument operated by a qualified technician within the prescribed time periods, and that the readings were reliable. Once these preconditions are met, the Crown can take advantage of the shortcuts found in ss. 258(1)(c) and 258(1)(g) of the Code to establish an accused’s blood‑alcohol concentration at the time of the alleged offence by filing a certificate recording the accused’s breath readings. This relieves the Crown from having to call two witnesses at every trial: a breath technician and an expert toxicologist. In the instant case, the trial judge found that the grounds to make the breath demand were insufficient, but applied Rilling v. The Queen, [1976] 2 S.C.R. 183, which held that it is unnecessary for the Crown to prove a lawful demand in order to rely on the evidentiary shortcuts. A was convicted of driving “over 80”. Successive appeals by A to the British Columbia Supreme Court and British Columbia Court of Appeal were dismissed.
Held (McLachlin C.J. and Abella, Brown and Rowe JJ. dissenting): The appeal should be dismissed.
Per Moldaver, Karakatsanis, Wagner, Gascon and Côté JJ.: The text of ss. 258(1)(c) and 258(1)(g) of the Code does not support the requirement of a lawful demand for the evidentiary shortcuts to apply. First, Parliament could easily have specified that the sample had to be taken “pursuant to a lawful demand” as it has done elsewhere in the Code. Second, this interpretation is in tension with the structure of the provisions, which is comprised of an opening part followed by a specific list of preconditions that must be met, all of which bear directly on the reliability of the evidentiary shortcuts. The meaning of the phrase “pursuant to a demand made under subsection 254(3)” is simply to identify a breath sample as the bodily sample to which the provisions apply, which may have been unclear at the time of their initial enactment in 1969. In any event, plain meaning alone is not determinative and a statutory interpretation analysis is incomplete without considering the context, purpose and relevant legal norms.
The purpose and context of the provisions do not support the requirement of a lawful demand for the evidentiary shortcuts to apply. Their overriding purpose is to streamline proceedings by dispensing with unnecessary evidence. The preconditions governing these 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. The overriding purpose of the evidentiary shortcuts would be frustrated by importing a lawful demand requirement. Requiring the Crown to call two additional witnesses will lead to unreasonable delays in drinking and driving proceedings that are counterproductive to the administration of justice as a whole and frustrate Parliament’s intent.
The comparison to the s. 254(5) refusal offence is flawed. 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. Therefore, it is not 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 continue to apply. This does not discourage compliance with breath demands. 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.
It is unnecessary to determine whether Rilling was correctly decided under the law as it existed at that time, as the concerns which animated the minority in Rilling have been addressed in the present day context. The scientific reliability of the results of properly administered breath tests is now firmly established. And today, s. 8 of the Canadian Charter of Rights and Freedoms , in combination with s. 24(2) , provides a comprehensive and direct protection against unreasonable searches and seizures, including those of breath samples. By contrast, a loss of the s. 258 evidentiary shortcuts does not provide a meaningful remedy for an unlawful demand by the police and achieves no substantive or procedural benefit for an accused — it merely requires the Crown to call two unnecessary witnesses to arrive at the same result. Such an approach would be antithetical to the Court’s recent jurisprudence emphasizing the importance of participants in the criminal justice system working together to achieve fair and timely justice.
As a lawful demand was not a precondition to the s. 258 evidentiary shortcuts, there is no basis in this case for appellate interference and A’s conviction must be upheld.
Per McLachlin C.J. and Abella, Brown and Rowe JJ. (dissenting): The requirement for reasonable grounds to demand a breath sample under s. 254(3) of the Code is a precondition to the operation of the presumptions in ss. 258(1) (c) and 258(1) (g). Rilling is therefore no longer good law. A balancing between the values of correctness and certainty leads to the conclusion that the need to correct the law predominates in this case. As a result, A’s appeal should be allowed, his conviction set aside and a new trial ordered.
Rilling is based on an incorrect view that relevant evidence is admissible even if it is unlawfully obtained. Such an interpretation conflates the issues of admissibility under common law with the operation of the evidentiary shortcuts, per s. 258(1) of the Code. This interpretation has been attenuated by later jurisprudence which identifies the distinction between admissibility and preconditions to evidentiary shortcuts, and by the importance of a statutory precondition of reasonable and probable grounds being satisfied to ensure a lawful search and seizure in s. 8 Charter context. It has also been attenuated by the modern approach to statutory interpretation.
Reading ss. 258(1)(c) and 258(1)(g) 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, the reasoning in Rilling cannot withstand scrutiny. The phrase “pursuant to a demand made under subsection 254(3)” does not simply identify the sample to which the provision applies. That such words are meaningless is not plausible. 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. Furthermore, the 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 the minority endorsed in Rilling and with later appellate case law.
Reversing Rilling will not undermine the efficacy of the statutory scheme, or disrupt the proper administration of justice. In prosecuting “over 80” charges, where the peace officer acted without reasonable grounds, the Crown will not be able to rely on the evidentiary shortcuts. However, the Crown will still be able to prove its case where it has the evidence to do so, even if it takes longer. Thus, no injustice will arise. While the Crown may be inconvenienced, it is more important that these provisions of the Code be given their proper meaning and effect. As well, today’s criminal procedure framework is different from that which was in place when Rilling was decided. Current procedures, such as disclosure, charge screening and pre‑trials, ensure that parties are aware of issues before a trial begins. The loss of evidentiary presumptions 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. Thus, there would be no ambush after the Crown had closed its case. The statutory scheme will still be able to function as it should without the rule in Rilling.
Cases Cited
By Moldaver J.
Considered: Rilling v. The Queen, [1976] 2 S.C.R. 183; referred to: R. v. Deruelle, [1992] 2 S.C.R. 663; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Montréal (City) v. 2952‑1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141; R. v. Vanderbruggen (2006), 206 C.C.C. (3d) 489; R. v. Ware (1975), 30 C.R.N.S. 308; R. v. Forsyth (1973), 15 C.C.C. (2d) 23; R. v. Charette, 2009 ONCA 310, 243 C.C.C. (3d) 480; R. v. Anderson, 2013 QCCA 2160, 9 C.R. (7th) 203; R. v. Forsythe, 2009 MBCA 123, 250 C.C.C. (3d) 90; R. v. St‑Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187; R. v. Phillips (1988), 42 C.C.C. (3d) 150; R. v. Paszczenko, 2010 ONCA 615, 103 O.R. (3d) 424; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; R. v. MacDonald (1974), 22 C.C.C. (2d) 350; R. v. Moser (1992), 7 O.R. (3d) 737; R. v. Plamondon (1997), 121 C.C.C. (3d) 314; R. v. Plummer (2006), 83 O.R. (3d) 528; Taraschuk v. The Queen, [1977] 1 S.C.R. 385.
By Rowe J. (dissenting)
Rilling v. The Queen, [1976] 2 S.C.R. 183; R. v. Charette, 2009 ONCA 310, 94 O.R. (3d) 721; R. v. Wray, [1971] S.C.R. 272; 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; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Canada v. Craig, 2012 SCC 43, [2012] 2 S.C.R. 489; R. v. Wray, [1970] 2 O.R. 3; R. v. Orchard, [1971] 1 W.W.R. 535, aff’d [1971] 2 W.W.R. 639; R. v. Showell, [1971] 3 O.R. 460; R. v. Flegel (1971), 5 C.C.C. (2d) 155, aff’d (1972), 7 C.C.C. (2d) 55; R. v. Deruelle, [1992] 2 S.C.R. 663; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Dastous v. Matthews‑Wells Co., [1950] S.C.R. 261; Minister of National Revenue v. Armstrong, [1956] S.C.R. 446; R. v. Bernshaw, [1995] 1 S.C.R. 254; R. v. Searle, 2006 NBCA 118, 308 N.B.R. (2d) 216; R. v. Bernard, [1988] 2 S.C.R. 833; Reference re Agricultural Products Marketing Act, [1978] 2 S.C.R. 1198.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 8 , 11 (b), 24(2) .
Criminal Code, R.S.C. 1985, c. C‑46, ss. 25(4) , 31(1) , 46(2) (b), 52(1) (b), 91(4) , 127(1) , 145(1) , 253 , 254 , 258 , 270 .
Criminal Law Amendment Act, 1968‑69, S.C. 1968‑69, c. 38, s. 16.
Motor Vehicle Act, R.S.B.C. 1996, c. 318, s. 234(1).
Authors Cited
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Shorter Oxford English Dictionary on Historical Principles, 6th ed. by Angus Stevenson. Oxford: Oxford University Press, 2007, “pursuant to”.
Sullivan, Ruth. Sullivan on the Construction of Statutes, 6th ed. Markham, Ont.: LexisNexis, 2014.
APPEAL from a judgment of the British Columbia Court of Appeal (Newbury, Harris and Goepel JJ.A.), 2015 BCCA 435, 377 B.C.A.C. 301, 648 W.A.C. 301, 328 C.C.C. (3d) 448, 24 C.R. (7th) 138, 344 C.R.R. (2d) 158, 86 M.V.R. (6th) 179, [2015] B.C.J. No. 2267 (QL), 2015 CarswellBC 3000 (WL Can.), affirming a decision of Schultes J., 2014 BCSC 2328, 71 M.V.R. (6th) 228, [2014] B.C.J. No. 3036 (QL), 2014 CarswellBC 3675 (WL Can.), affirming the accused’s summary conviction for impaired driving. Appeal dismissed, McLachlin C.J. and Abella, Brown and Rowe JJ. dissenting.
Michael F. Welsh, for the appellant.
Rodney Garson, for the respondent.
James V. Palangio and Michael Medeiros, for the intervener the Attorney General of Ontario.
Adam Little, Jonathan M. Rosenthal and Shannon S. W. O’Connor, for the intervener the Criminal Lawyers’ Association (Ontario).
The judgment of Moldaver, Karakatsanis, Wagner, Gascon and Côté JJ. was delivered by
Moldaver J. —
I. Background and Overview
[1] 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.
[2] To address the challenges posed by the large number of drinking and driving offences, Parliament has, over the years, taken steps to simplify and streamline the trial process. One such step, which dates back to 1969, involved the introduction of evidentiary shortcuts into the Criminal Code, R.S.C. 1985, c. C-46 .[1] These shortcuts, now found in ss. 258(1)(c) and 258(1)(g) of the Code, permit the Crown to establish an accused’s blood-alcohol concentration at the time of the alleged offence by filing a certificate recording the accused’s breath readings.
[3] In the case of “over 80” charges,[2] this relieves the Crown from having to call two witnesses at every trial: (1) a breath technician to attest to the accuracy of the breath readings; and (2) an expert toxicologist to relate the readings back to the time when the alleged offence occurred.
[4] 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.
[5] 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.
[6] 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.
[7] 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.
[8] 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.
[9] 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”.
[10] 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.
[11] 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.
[12] 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.
[13] I would accordingly dismiss the appeal.
II. Analysis
A. The Statutory Regime
[14] 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.
[15] 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 . . .
[16] 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;
[17] 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.
[18] 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.
[19] 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.
[20] 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.
[21] 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.
B. Mr. Alex’s Position
[22] 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.
[23] These arguments are addressed in turn below. With respect, I find each to be unconvincing.
C. Statutory Interpretation
[24] 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.
(1) The Opening Words of the Provisions
[25] 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.
[26] First, Parliament could easily have specified that the sample had to be taken “pursuant to a lawful demand”. There are many examples throughout the Code where Parliament has done just that. For instance, in s. 127(1) of the Code,[3] Parliament has made it clear that to convict a person for disobeying a court order, the underlying order must be “lawful”:
127 (1) Every one who, without lawful excuse, disobeys a lawful order made by a court of justice or by a person or body of persons authorized by any Act to make or give the order, other than an order for the payment of money, is, unless a punishment or other mode of proceeding is expressly provided by law, guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.
[27] 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.
[28] 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.
[29] 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).
[30] 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.
(2) Plain Meaning Is Not Determinative
[31] 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.
[32] 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.
[33] 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.
(3) The Purpose and Context of the Evidentiary Shortcuts
[34] 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.
(4) The Overriding Purpose of Streamlining Proceedings Would Be Frustrated by Importing a Lawful Demand Requirement
[35] 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.
[36] 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.
[37] 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.
[38] 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.
(5) The Charter Now Addresses the Concerns That Animated the Minority in Rilling About Providing Protection Against Unlawful Breath Demands
[39] In Rilling, this Court addressed a similarly worded evidentiary shortcut found in what was then s. 237(1)(f) of the Code (current s. 258(1)(g)). A majority of the Court (Martland, Judson, Pigeon, Beetz and de Grandpré JJ.) concluded that the presumption of accuracy continued to operate regardless of whether an officer had the grounds needed to make a demand.[4]
[40] 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.]
[41] 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.
[42] 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