Top court limits when accused can access breathalyzer records

OTTAWA — Canada’s top court has set new limits for defendants trying to beat a drunk-driving charge in a ruling that may have consequences for anyone accused of being high behind the wheel.

What the Supreme Court of Canada laid out over two decisions released Friday was a framework for when an accused person can get the maintenance log of a breathalyzer so they can question how well the device worked and whether the results can be trusted.

The high court said an accused can get the logs only if they can show that the records are relevant to their defence.

Defence lawyers regularly ask for the records, often held by private companies or police forces, even though they may not be directly related to the evidence collected as part of a case. In each of the cases the court ruled, the Crown argued it didn’t have to hand over the information.

In a near-unanimous ruling on two drunk-driving cases coming out of Alberta, the court said the records are not material to how a breathalyzer works when a driver is tested, only whether the device was properly maintained.

“The only question that must be answered is whether the machines were operating properly at the time of the test — not before or after,” Justice Malcolm Rowe wrote for the majority.

“The time-of-test records directly deal with this. The maintenance records, according to the expert evidence, do not.”

Justice Suzanne Côté was the lone dissenter.

The decisions mark the second time this decade the court has weighed in on how far breathalyzer tests can be challenged in court using maintenance and training records, and defence lawyers believe it takes away another option for those trying to answer an impaired driving charge.