Summary

36771

Dion Henry Alex v. Her Majesty the Queen

(British Columbia) (Criminal) (By Leave)

Keywords

None.

Summary

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Charter of Rights and Freedoms – Search and Seizure – Criminal law – Evidence – Application of R. v. Rilling [1976] 2 S.C.R. 183 – Should Rilling be reconsidered in light of the subsequent enactment of the Charter – Why the potential availability of a Charter section 8 declaration and relief by way of exclusion of evidence under section 24(2) does not provide an adequate reason to continue to apply the decision in Rilling where no reasonable grounds exist for an ASD or a breath demand – Why Rilling is irreconcilable with the subsequent decisions of this Court on the necessity of strict compliance with statutory preconditions to the use of evidentiary presumptions or “shortcuts” – Charter ss. 8, 24(2).

The applicant was convicted 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(b) of the Criminal Code (the “over 80” count). He was also convicted of driving while prohibited, but has not appealed that conviction. There was some uncertainty whether trial judge found objective and subjective grounds for officer’s suspicion under s. 254(2) of the Criminal Code. The summary appeal judge was unable to determine whether there had been a reasonable suspicion and did not reach a firm conclusion on whether the officer subjectively believed there were grounds to suspect impaired driving. Both the trial judge and summary appeal judge concluded, however, that R. v. Rilling, [1976] 2 S.C.R. 183 applied to make the breathalyzer certificate admissible in the absence of a challenge under s. 8 of the Charter. The Court of Appeal dismissed the appeal on the basis that the Rilling decision remains good law in Canada.

Lower Court Rulings

December 11, 2013
Provincial Court of British Columbia

40796-1
Conviction: care or control of his vehicle with a blood alcohol level in excess of the legal limit, contrary to s. 253(b) of the Criminal Code (“over 80”); driving while prohibited
November 7, 2014
Supreme Court of British Columbia

40796-1, 2014 BCSC 2328
Appeal of driving “over 80” conviction dismissed
April 14, 2015
Court of Appeal for British Columbia (Vancouver)

CA042396, 2015 BCCA 435
Leave to appeal granted
October 21, 2015
Court of Appeal for British Columbia (Vancouver)

CA42396, 2015 BCCA 435
Appeal dismissed