Dion Henry Alex v. Her Majesty the Queen

(British Columbia) (Criminal) (By Leave)


Criminal law - Search and seizure (s. 8), Evidence.


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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.