Kyla Lee in CBC News: Supreme Court keeps door open to challenges of drunk-driving law, B.C. lawyer says

Canada’s highest court has upheld a series of B.C. judgments limiting the options for alleged drunk drivers to challenge the lawfulness of police demands for breath samples.

Thursday’s split decision from the Supreme Court of Canada in the case of Dion Henry Alex found that if a breath sample was properly obtained, Crown prosecutors don’t need to prove that an officer was legally justified in taking that sample.

But Vancouver defence lawyer Kyla Lee, who specializes in impaired driving cases, doesn’t expect this judgment to be the final word on the matter.

“What’s very interesting about it is that it was a 5-4 split, and the chief justice was on the minority side who said no,” Lee said.
“What that means, ultimately, is that the door is not closed on this issue.”

Charter challenges still possible
Accused drivers still have the option of filing a Charter challenge before trial if they want to challenge the admissibility of their breath samples, Lee pointed out.

The legal saga at the heart of the high court ruling began in 2012, when Alex was stopped by an RCMP officer conducting a seatbelt check in Penticton.

A provincial court judge convicted Alex of drunk driving, despite finding that the officer did not have sufficient grounds to ask for Alex’s breath sample. That decision was upheld in B.C. Supreme Court and at the B.C. Court of Appeal.

Those decisions relied on a Supreme Court of Canada decision that dates back to 1976. That judgment held that if a breath sample is taken on an approved device by a qualified technician and the readings are reliable, the results can be certified without proving the demand was lawful.

‘No longer good law,’ dissenting justices say
That approach prevents drunk driving trials from becoming long, drawn-out affairs, the Supreme Court ruled in upholding the lower court decisions.

A change in the law, Justice Michael Moldaver wrote on behalf of the majority, “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.”

But the four dissenting justices — including Chief Justice Beverley McLachlin — argue in their reasons that the status quo is “no longer good law” and is “based on an incorrect view that relevant evidence is admissible, even if it is unlawfully obtained.”

Those judges suggest that a change in the law would still allow Crown prosecutors to prove their case, even if it takes a little longer.

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