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R. v. Forsythe (J.R.),, 2009 MBCA 123 (CanLII)

13               The effect of a failure to comply with s. 235(1) [now s. 254(3)] was considered by the Supreme Court of Canada in Rilling v. The Queen, 1975 CanLII 159 (S.C.C.), [1976] 2 S.C.R. 183, in which the defence had argued that the breathalyzer test results should be excluded on the basis that the trial judge had found that there was no evidence that the police had reasonable and probable grounds.  Judson J., for the majority, rejected that argument and found that the results were admissible and, in so doing, adopted the following quote from the appellate decision as correctly setting out the law (at p. 198):

It is my opinion that this Court should accept and adopt the views expressed in the Orchard [[1971] 1 W.W.R. 585, aff’d reflex, [1971] 2 W.W.R. 639], Showell [(1971), 4 C.C.C. (2d) 252] and Flegel [(1971), 5 C.C.C. (2d) 155] cases … and hold that while absence of reasonable and probable grounds for belief of impairment may afford a defence to a charge of refusal to submit to a breathalyzer test laid under subs. (2) of s. 235 [now s. 254(5)] of the Code, it does not render inadmissible certificate evidence in the case of a charge under s. 236 [now s. 255(1)] of the Code.  The motive which actuates a peace officer in making a demand under s. 235(1) [now s. 254(3)] is not a relevant consideration when the demand has been acceded to.

[emphasis added]

(Note:  The section numbers have changed and there have been some modifications, but they do not change the effect of the sections for the purposes of this discussion.)

14               Rilling was decided before the adoption of the Charter, but it has recently been confirmed as still being good law by this court.  See R. v. Banman, 2008 MBCA 103 (CanLII), 2008 MBCA 103, 231 Man.R. (2d) 102, and the earlier decision of R. v. Leneal reflex, (1990), 68 Man.R. (2d) 127 (C.A.); see also, R. v. Gundy (T.), 2008 ONCA 284 (CanLII), 2008 ONCA 284, 235 O.A.C. 236 at paras. 28-36, R. v. Anderson (2005), 65 W.C.B. (2d) 466 (Ont. C.A.), and R. v. Charette (K.) et al., 2009 ONCA 310 (CanLII), 2009 ONCA 310, 247 O.A.C. 369 at para. 31, and Cory J.’s decision in R. v. Bernshaw, 1995 CanLII 150 (S.C.C.), [1995] 1 S.C.R. 254 at paras. 41-42.  Several of these cases have included a detailed analysis of this issue, which analysis is applicable to this case, and it is not necessary to repeat that analysis here.

15               This does not mean that the admissibility of a breathalyzer certificate, and the results therein, that are obtained in contravention of the requirements of s. 254(3) are unassailable; rather, as is explained in Banman and Charette, they can and should be challenged by way of an application for exclusion under the Charter.


Jim O'Neil, LL.B.

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