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R. v. Forsythe (J.R.),, 2009 MBCA 123 (CanLII)  (Leave to Appeal to SCC denied)


24               General support for the use of the Charter to determine the admissibility of evidence in preference to automatic exclusion is also found in the Supreme Court’s recent decision in R. v. Grant, 2009 SCC 32 (CanLII), 2009 SCC 32, 245 C.C.C. (3d) 1, albeit in that case, the Court was dealing only with a challenge to the admissibility of evidence under the Charter.  In Grant, the court reviewed the interpretation and application of s. 24(2) of the Charter, and McLachlin C.J.C. and Charron J., for the majority, underlined the importance of undertaking a principled review of all of the relevant facts and factors before determining the admissibility or exclusion of evidence rather than having an automatic exclusion for some types of evidence, in particular conscripted evidence – see, for example, paras. 65, 106-07.  They also stated that, even if there has been a breach of the Charter in the taking of a breath sample, that may not result in the exclusion of the evidence.  This further supports the argument that there should not be an automatic exclusion of that evidence in all cases where the requirements of s. 254(3) have not been met.


26               There is no reason to have different procedures and principles apply to the determination of the admissibility of breathalyzer evidence taken under s. 254(3) depending on which of the requirements in that section have not been met.  The decision in Rilling, and the reasoning in Banman and Charette, for requiring a Charter analysis to determine the admissibility of the breath samples should apply to all of the requirements in that section.

VI.   Decision

27               For the reasons noted above, I find that, given the decision of the Supreme Court of Canada in Rilling, the appeal judge erred in law by concluding that the requirement of s. 254(3) of the Code, that the police take an accused’s breath samples “as soon as practicable,” is a pre-condition to the admissibility of the test results.


Jim O'Neil, LL.B.

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