Canada’s breathalyzer evidence rules upheld in court, despite charter challenge

The Supreme Court of Canada is upholding procedures that permit shortcuts in allowing a motorist’s breathalyzer sample into evidence — even in cases where taking the sample may have been unlawful.

In a decision Thursday, the court is affirming the existing charter process for challenging police actions in obtaining a sample.

The high court’s 5-4 ruling comes in the case of Dion Henry Alex, who was stopped by police in Penticton, B.C., in April 2012.

Alex failed a roadside test and was taken to the police detachment, where he blew above the legal blood alcohol limit in two subsequent tests.

At issue was the continuing relevance of a 1976 Supreme Court decision 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.

Following introduction of the Charter of Rights and Freedoms in the 1980s, the courts said that an argument a breath sample was obtained unlawfully must come in the form of a charter challenge against unreasonable search and seizure.