Top court throws out Penticton appeal
What began five years ago as a routine impaired-driving investigation in Penticton reached its conclusion Thursday in the Supreme Court of Canada.
It marked what’s believed to be the first time a local case has been heard in Ottawa in at least 50 years.
In a 5-4 ruling, the country’s top court dismissed the appeal of Penticton man Dion Henry Alex and upheld procedures that permit shortcuts for allowing a motorist’s breathalyzer test results into evidence — even in cases where demanding the breath sample may have been unlawful. “Clearly, I’m disappointed. I do believe the minority decision was the correct decision,” said Penticton lawyer Michael Welsh, who represented Alex and previously argued the appeal unsuccessfully in B.C.’s two superior courts.
Alex was stopped by police for a seatbelt check in Penticton in April 2012, when an RCMP officer detected the scent of liquor and saw an open can of beer on the floor beside a passenger.
The officer testified Alex had red cheeks and watery eyes and failed a roadside test. He was taken to the police detachment, where he blew above the legal blood-alcohol limit in two subsequent tests.
The trial judge in provincial court in Penticton agreed police lacked reasonable grounds to demand a breath sample.
He nonetheless cited a 1976 decision of the Supreme Court of Canada that said the Crown did not need to prove the demand for a breath test was lawful in order to rely on evidentiary shortcuts about the accuracy of test readings.
So rather than having technicians and toxicologists testify in court about the accuracy of breath tests, the Crown can instead rely on a simple certificate recording the breath readings of the accused.
In the decision Thursday, Justice Michael Moldaver wrote on behalf of the majority that ruling otherwise would only add to the costs and delays in an already overburdened criminal justice system.
He also noted that those who feel their rights have been violated are still free to launch challenges under the Charter of Rights and Freedoms.
Welsh argued primarily that the wording contained in Criminal Code charge for impaired driving implies breath samples must be taken lawfully or they cannot be used as evidence.
The minority of judges who agreed suggested that allowing Alex’s appeal wouldn’t necessarily throw the prosecution of impaired-driving offences into chaos.
“It will take the Crown longer to prove its case; that follows from not being able to rely on the shortcuts. But it will still be able to prove its case where it has the evidence to do so. Thus, no injustice will arise,” Justice Malcolm Rowe wrote on behalf of the minority.
Despite not winning over a majority of the judges, Welsh said arguing in Canada’s top court was a privilege and a challenge he felt compelled to take on.
“The reason it was pursued so far was, although the offence itself ... is not like murder or arson or something that’s considered a major crime, it was one that had an important legal principle at stake,” said Welsh, who is president of the B.C. branch of the Canadian Bar Association.
Alex, he added, has already served the seven-day jail sentence assessed in provincial court and is eager to move on.
According to Welsh’s research, it was the first Penticton case to make it all the way to the Supreme Court of Canada since one involving Aboriginal hunting rights in the 1950s or 1960s.
“It shows things that happen in cities like Penticton can have national consequence and can have huge effects on the future of the law in the country,” he said.