Supreme Court Judgments

Supreme Court of Canada

Rilling v. The Queen, [1976] 2 S.C.R. 183

Date: 1975-06-26

Ronald Joseph Rilling Appellant;

and

Her Majesty The Queen Respondent.

1975: May 15; 1975: June 26.

Present: Laskin C.J. and Martland, Judson, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION

Criminal law—Driver of motor vehicle submitting to breathalyzer test—Charge laid under s. 236 of Criminal Code—No evidence adduced that arresting officer had reasonable grounds for believing accused driving while impaired—Admissibility of certificate of analysis—Criminal Code, R.S.C. 1970, c. C-34, ss. 234, 235, 236, 237.

The appellant was charged with unlawfully driving a motor vehicle, having consumed alcohol in such quantity that the proportion thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 236 of the Criminal Code. Although there was no evidence adduced that the arresting constable had any reasonable or probable grounds for believing that an offence under s. 234 of the Code had been committed, the appellant submitted to a breathalyzer test and a certificate of analysis was admitted in evidence. The Appellate Division of the Supreme Court of Alberta dismissed an appeal by way of stated case from the conviction of the accused and an appeal with leave was then brought to this Court.

Held (Laskin C.J. and Spence and Dickson JJ. dissenting): The appeal should be dismissed.

Per Martland, Judson, Pigeon, Beetz and de Grandpré JJ.: As held by the Appellate Division, the 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 s. 235(2) of the Code, but it does not render inadmissible certificate evidence in the case of a charge under s. 236.

Per Laskin C.J. and Spence and Dickson JJ., dissenting: The requirement in both s. 237(1)(c) and s. 237(1)(f) that the breath test should have been made pursuant to the demand under s. 235(1) was inserted by Parliament with the intention of limiting those cases where the analysis could be proved by a certificate of a

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qualified technician and then that such analysis would provide prima facie proof of the proportion of alcohol in the blood of the accused only to those cases where the peace officer had, on reasonable and probable grounds, believed that the accused was or had been driving while impaired. This was only a proper requirement when the test was one which the citizen was required to submit to on penalty of committing an offence if he refused.

Accordingly, there having been no evidence adduced that the arresting officer had reasonable grounds for believing the appellant to have been driving while impaired, the Crown could not prove its case by the production of the certificate of the “qualified technician” since it was not the result of a test taken “pursuant to a demand under subsection 235(1)” as required by s. 237(1)(f).

[R. v. Showell (1971), 4 C.C.C. (2d) 252; R v. Orchard, [1971] 1 W.W.R. 585, aff’d. [1971] 2 W.W.R. 639; R. v. Strain (1971), 2 C.C.C. (2d) 412; R. v. Flegel (1971), 5 C.C.C. (2d) 155; R. v. Verischagin, [1972] 4 W.W.R. 476, approved; R. v. Wirsta (1970), 1 C.C.C. (2d) 538; R. v. Manchester, [1972] 1 W.W.R. 70; Reference Re Sections 222, 224 and 224A of the Criminal Code (1971), 3 C.C.C. (2d) 243, not followed; Reference Re Proclamation of Section 16 of the Criminal Law Amendment Act, 1968-69, [1970] S.C.R. 777, referred to.]

APPEAL from a judgment of the Supreme Court of Alberta, Appellate Division[1], dismissing an appeal by way of stated case from the conviction of the appellant by Saks Prov. Ct. J. on a charge under s. 236 of the Criminal Code. Appeal dismissed, Laskin C.J. and Spence and Dickson JJ. dissenting.

J.C. Prowse, for the appellant.

Y. Roslak, for the respondent.

The judgment of Laskin C.J. and Spence and Dickson JJ. was delivered by

SPENCE J. (dissenting)—This is an appeal from the judgment of the Appellate Division of the Supreme Court of Alberta pronounced on Febru-

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ary 9, 1973. By that judgment, the Appellate Division dismissed an appeal by way of stated case from the conviction of the appellant by a Provincial Judge on a charge under s. 236 of the Criminal Code.

The stated case follows:

CASE STATED by Dean Saks, Provincial Judge, sitting at the City of Edmonton, in the Province of Alberta, under the provisions of Section 762 of the Criminal Code of Canada.

1. The Appellant, Ronald Joseph Rilling, was charged that on or about the 21st day of January, A.D. 1972 at the City of Edmonton, in the Province of Alberta, he did unlawfully drive a motor vehicle, having consumed alcohol in such quantity that the proportion thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to Section 236 of the Criminal Code of Canada.

2. The hearing of the said charge was commenced before me on the 29th day of May, A.D. 1972 in the presence of the accused. The accused was represented by Counsel at the hearing.

3. Evidence for the Crown was given by the arresting officer, Constable William Hargarten of the Edmonton City Police, who stated inter alia that the accused blew into the breathalyzer machine and that he did not recall who was the operator of the machine.

4. The Crown applied to introduce as exhibits three Certificates, one of which was the Certificate of Analysis showing the alcohol content in the blood as provided by the provisions of the Criminal Code.

5. The appellants counsel admitted service of the Certificates upon the accused, but objected to the Certificate of Analysis pertaining to the alcohol content in the blood being admitted as evidence on the grounds that there was no evidence before the Court that the arresting Constable had any reasonable or probable grounds for believing that an offence under Section 234 of the Criminal Code as required by Section 235(1) of the Criminal Code, had been committed.

6. In my opinion there was no evidence adduced before the Court to show that the arresting Constable had any reasonable or probable grounds for believing that an offence under Section 234 of the Criminal Code had been committed.

7. Following the decision of Mr. Justice Neil Primrose of the Supreme Court of Alberta in the case of Regina vs. Joseph William McHarg, (unreported, a copy of

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which is attached) I allowed the said Certificate to be admitted as evidence.

8. One of the arguments set forth by counsel in his summation was that there was no evidence identifying the accused as being the person referred to in the said Certificate. This question was not brought up during the trial.

9. The said Certificate of Analysis showed that the result of the chemical analysis was 160 milligrams of alcohol per 100 millilitres of blood and as a result, I found the accused guilty as charged.

The appellant Ronald Joseph Rilling desires to question the validity of the conviction on the grounds that it was erroneous in law.

The questions submitted for the judgment of this Honourable Court are as follows:

(a) Did I err in permitting the Certificate of Analysis pertaining to the alcohol content of the blood to be entered when there was, in my opinion, no evidence before the court that the arresting Constable had any reasonable or probable grounds for believing that an offence under Section 234 of the Criminal Code had been committed?

(b) Did I err in ruling that there was evidence identifying the accused as being the person referred to in the said Certificate?

The issue as to identification was dropped in the Appellate Division so that Court was and this Court is concerned solely with the question in para. (a) supra.

It is necessary to consider the provisions of ss. 234 to 237 inclusive of the Criminal Code which are as follows:

234. Every one who, while his ability to drive a motor vehicle is impaired by alcohol or a drug, drives a motor vehicle or has the care or control of a motor vehicle, whether it is in motion or not, is guilty of an indictable offence or an offence punishable on summary conviction and is liable

(a) for a first offence, to a fine of not more than five hundred dollars and not less than fifty dollars or to imprisonment for three months or to both;

(b) for a second offence, to imprisonment for not more than three months and not less than fourteen days; and

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(c) for each subsequent offence, to imprisonment for not more than one year and not less than three months.

235. (1) Where a peace officer on reasonable and probable grounds believes that a person is committing, or at any time within the preceding two hours has committed, an offence under section 234, he may, by demand made to that person forthwith or as soon as practicable, require him to provide then or as soon thereafter as is practicable a sample of his breath suitable to enable an analysis to be made in order to determine the proportion, if any, of alcohol in his blood, and to accompany the peace officer for the purpose of enabling such a sample to be taken.

(2) Every one who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peace officer under subsection (1) is guilty of an offence punishable on summary conviction and is liable to a fine of not less than fifty dollars and not more than one thousand dollars or to imprisonment for not more than six months, or both.

236. Every one who drives a motor vehicle or has the care or control of a motor vehicle, whether it is in motion or not, having consumed alcohol in such a quantity that the proportion thereof in his blood exceeds 80 milligrams of alcohol in 100 millilitres of blood, is guilty of an offence punishable on summary conviction and is liable to a fine of not less than fifty dollars and not more than one thousand dollars or to imprisonment for not more than six months, or both.

237. (1) In any proceedings under section 234 or 236,

(a) where it is proved that the accused occupied the seat ordinarily occupied by the driver of a motor vehicle, he shall be deemed to have had the care or control of the vehicle unless he establishes that he did not enter or mount the vehicle for the purpose of setting it in motion;

(b) the result of a chemical analysis of a sample of the breath of the accused (other than a sample taken pursuant to a demand made under subsection 235(1)) or of the blood, urine or other bodily substance of the accused may be admitted in evidence notwithstanding that, before he gave the sample, he was not warned that he need not give the sample or that the result of the analysis of the sample might be used in evidence;

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(c) where a sample of the breath of the accused has been taken pursuant to a demand made under subsection 235(1), if

(i) at the time the sample was taken, the person taking the sample offered to provide to the accused a specimen of the breath of the accused in an approved container for his own use, and, at the request of the accused made at that time, such a specimen was thereupon provided to him,

(ii) the sample was taken as soon as practicable after the time when the offence was alleged to have been committed and in any event not later than two hours after that time,

(iii) the sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and

(iv) a chemical analysis of the sample was made by means of an approved instrument operated by a qualified technician,

evidence of the result of the chemical analysis so made is, in the absence of any evidence to the contrary, proof of the proportion of alcohol in the blood of the accused at the time when the offence was alleged to have been committed;

(d) a certificate of an analyst stating that he has made a chemical analysis of a sample of the blood, urine, breath or other bodily substance of the accused and stating the result of his analysis is evidence of the statements contained in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate;

(e) a certificate of an analyst stating that he has made an analysis of a sample of any substance or solution intended for use in an approved instrument and identified in the certificate and that the sample analyzed by him was found to be suitable for use in an approved instrument, is evidence that the substance or solution so identified is suitable for use in an approved instrument, without proof of the signature or the official character of the person appearing to have signed the certificate; and

(f) where a sample of the breath of the accused has been taken pursuant to a demand made under subsection 235(1), a certificate of a qualified technician stating

(i) that a chemical analysis of the sample has been made by means of an approved instrument operated

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by him in which a substance or solution suitable for use in that approved instrument and identified in the certificate was used,

(ii) the result of the chemical analysis so made, and

(iii) if the sample was taken by him,

(A) that at the time the sample was taken he offered to provide to the accused a specimen of the breath of the accused in an approved container for his own use and, at the request of the accused made at that time, such a specimen was thereupon provided to him,

(B) the time when and place where the sample and any specimen described in clause (A) was taken, and

(C) that the sample was received from the accused directly into an approved container or into an approved instrument operated by him,

is evidence of the statements contained in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate.

(2) No person is required to give a sample of blood, urine or other bodily substance for chemical analysis for the purposes of this section except breath as required under section 235, and evidence that a person failed or refused to give such a sample or that such a sample was not taken is not admissible nor shall such a failure or refusal or the fact that a sample was not taken be the subject of comment by any person in the proceedings.

(3) In any proceedings under section 234, evidence that the accused, without reasonable excuse, failed or refused to comply with a demand made to him by a peace officer under subsection 235(1) is admissible and the court may draw an inference therefrom adverse to the accused.

(4) An accused against whom a certificate described in paragraph (1)(d), (e) or (f) is produced may, with leave of the court, require the attendance of the analyst or of the qualified technician, as the case may be, for the purposes of cross-examination.

(5) No certificate shall be received in evidence pursuant to paragraph (1)(d), (e) or (f) unless the party intending to produce it has, before the trial, given to the accused reasonable notice of his intention together with a copy of the certificate.

(6) In this section

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“analyst” means a person designated by the Attorney General as an analyst for the purposes of this section;

“approved container” means a container of a kind designed to receive a sample of the breath of a person for chemical analysis and that is approved as suitable for the purposes of this section by order of the Attorney General of Canada;

“approved instrument” means an instrument of a kind that is designed to receive and make a chemical analysis of a sample of the breath of a person in order to measure the proportion of alcohol in the blood of that person and that is approved as suitable for the purposes of this section by order of the Attorney General of Canada;

“qualified technician” means a person designated by the Attorney General as being qualified to operate an approved instrument.

It must be realized that to answer the question put in the stated case we are concerned solely with the admissibility of the certificate of the technician produced at the trial of the appellant as Ex. 3. No viva voce evidence was adduced at trial as to the analysis and in fact the only witness who testified at the trial was the arresting constable. Counsel for the Crown had given notice to the appellant of the intention to produce the certificate in accordance with the provisions of s. 237(5) of the Code.

The admissibility of this certificate is governed solely by the provisions of s. 237(1)(f) of the Code which I now repeat:

237. (1) In any proceedings under section 234 or 236,

(f) where a sample of the breath of the accused has been taken pursuant to a demand made under subsection 235(1), a certificate of a qualified technician stating

(i) that a chemical analysis of the sample has been made by means of an approved instrument operated by him in which a substance or solution suitable for use in that approved instrument and identified in the certificate was used,

(ii) the result of the chemical analysis so made, and

(iii) if the sample was taken by him,

(A) that at the time the sample was taken he offered to provide to the accused a specimen of

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the breath of the accused in an approved container for his own use and, at the request of the accused made at that time, such a specimen was thereupon provided to him,

(B) the time when and place where the sample and any specimen described in clause (A) was taken, and

(C) that the sample was received from the accused directly into an approved container or into an approved instrument operated by him,

is evidence of the statements contained in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate.

It will be seen that if the certificate is admissible then it alone is evidence of the statements contained therein and was sufficient to prove the Crown’s case. Apart from the provisions of this paragraph of the subsection, the certificate of course would not have been admissible and the Crown would have had to adduce the viva voce evidence of the technician. There is no issue here whether such viva voce evidence would have been admissible and its effect is provided in s. 237(1)(c). That issue is not before the Court and cases which deal with the admissibility of viva voce evidence as to the analysis are irrelevant. The simple problem here is whether the Crown in the exact circumstances of this case may prove the guilt of the appellant by the mere production and filing of the technician’s certificate.

Prior to the amendments wrought by 1968-69 (Can.), c. 38, the Code dealt with the offences of driving when intoxicated or under the influence of drugs and impaired driving. Section 224 then provided for the admission of evidence of chemical analysis of blood and the form of proof in subsections (3) to (7) inclusive, as follows:

(3) In any proceedings under section 222 or 223, the result of a chemical analysis of a sample of the blood, urine, breath or other bodily substance of a person may be admitted in evidence on the issue whether that person was intoxicated or under the influence of a narcotic drug or whether his ability to drive was impaired by alcohol or a drug, notwithstanding that he was not, before he gave the sample, warned that he need not give the

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sample or that the results of the analysis of the sample might be used in evidence.

(4) No person is required to give a sample of blood, urine, breath or other bodily substance for chemical analysis for the purposes of this section and evidence that a person refused to give such a sample or that such a sample was not taken is not admissible nor shall such a refusal or the fact that a sample was not taken be the subject of comment by any person in the proceedings.

(5) In any proceedings under section 222 or 223, a certificate purporting to be signed by an analyst stating that he has performed a chemical analysis on the blood, urine, breath or other bodily substances of a person and stating the results of his analysis or examination is prima facie evidence of the facts stated in the certificate without proof of the signature or the official character of the person by whom it purports to be signed.

(6) In this section “analyst” means a person designated by the Attorney General as an analyst for the purposes of this section.

(7) Subsection (5) does not apply in any proceedings unless at least seven days’ notice in writing is given to the accused that it is intended to tender the certificate of the analyst in evidence.

I note that by subs. (3) the evidence of chemical analysis by an analyst was permitted and by subs. (5) the proof of that evidence by a certificate was permitted and such certificate was to provide prima facie evidence. But s. 224(4) clearly provided that no person was required to give a sample of his, inter alia, breath so that any sample taken and analyzed and then made subject to a certificate was provided voluntarily by the person.

Parliament made most important amendments by s. 16 of 1968-69 (Can.), c. 38. By that section, ss. 222 to 224 of the Code were repealed and replaced by ss. 222, 223, 224 and 224A. Those replacing sections now appear in the Criminal Code, R.S.C. 1970, c. C-34, as ss. 234 to 237 which I have set out in these reasons. Hereafter, I shall refer to the sections as now numbered. One of the most drastic amendments is that appearing in the present s. 235. As I have said, under the Code as it had provided before, no one could be required

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to provide a sample of his blood, urine, breath or other bodily substance. Under the present s. 235(1), where a peace officer, on reasonable and probable grounds, believes that a person is driving while impaired or has done so within the preceding two hours, he may demand that such person provide a sample of his breath. By s. 235(2), a person who refuses to comply with such a demand commits an offence.

When Parliament thus diametrically reversed the provisions of the Code as to the provision of breath samples, it provided in the series of sections quoted a number of protective provisions for the citizen. So s.235(2) permits the defence of reasonable excuse for refusal to provide the sample of breath. By s. 237(1)(c)(i), the person taking the sample was required to offer to the person from who it was taken a specimen of his breath in an approved container and by the provisions of s. 237(1)(f)(iii)(A) to so certify in the certificate. The provision as to evidence of the analysis of the breath sample given in compliance with the demand and the proof of the analysis by certificate both commence with the words, “Where a sample of the breath of the accused has been taken pursuant to a demand made under subsection 235(1)”. These are specific provisions only applicable to cases where the police officer has made such a demand. Parliament, in express words, made proof by the filing of a certificate in such case possible only when the test was made pursuant to a demand under subsection 235(1). (The italics are my own.)

Because of technical difficulties preventing the production of an “approved container” referred to in s. 237(1)(c)(i), the Governor in Council, using the provisions of s. 120 of 1968-69 (Can.), c. 38, declared in effect the whole of what are now ss. 234 to 237 inclusive, except the said s. 237(1)(c)(i), 237(1)(f)(iii)(A) and the definition

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of “approved container” in s. 237(6). This piecemeal proclamation of the statute was approved by a five to four majority of this Court in a judgment upon a reference, Re Proclamation of Section 16 of the Criminal Law Amendment Act, 1968-69[2]. As a result, the protections inserted in the procedure by Parliament have been effectively removed. The provisions, however, of s. 237(1)(c), and s. 237(1)(f) except the reference to “approved container” have been declared in effect.

The result of the judgment of the Appellate Division from which this appeal is taken as well as some of the decisions in other Provinces cited therein is to effectively remove another protection of the accused. I am of the opinion that the requirement in both s. 237(1)(c) and s. 237(1)(f) that the test should have been made pursuant to the demand under s. 235(1) was inserted by Parliament with the intention of limiting those cases where the analysis could be proved by a certificate of a qualified technician and then that such analysis would provide prima facie proof of the proportion of alcohol in the blood of the accused only to those cases where the peace officer had, on reasonable and probable grounds, believed that the accused was or had been driving while impaired. This was only a proper requirement when the test was one which the citizen was required to submit to on penalty of committing an offence if he refused. It is also noted that the person who makes the analysis was changed from an “analyst” in the old s. 224 to a “qualified technician” in the present s. 237.

An “analyst” was not defined in the previous provisions of the Code. Now, the “analyst” makes the analysis of the chemical used in the breathalizer and then a “qualified technician” makes the analysis of the specimen of breath expelled into the breathalizer. Section 237(6) defines an “analyst” merely as a person so designated by the Attorney General and a “qualified technician” as being a

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person designated by the Attorney General “as being qualified to operate an approved instrument”, quite plainly someone, probably a police officer, merely trained to operate a device with no skill in chemistry. Therefore, the lower degree of technical qualification required for the tester and issuer of the certificate would be another reason for Parliament only to authorize the use of such evidence, and its proof of mere filing of a certificate, to those cases which had commenced with a peace officer believing, on reasonable and probable grounds, that the accused was or had been driving while impaired.

Allen J.A., in his reasons for judgment for the Appellate Division, stated that he did not think it fair to assume that members of the public who were not showing visible signs of impairment would be harassed. That issue is, in my opinion, irrelevant. The appellant here was charged with an offence solely statutory in its creation, that is, driving an automobile with more than 80 milligrams of alcohol in 100 millilitres of his blood, contrary to s. 236 of the Code. The Crown seeks to prove that offence by first requiring him to submit to a breath test and then prove his guilt by the mere production and filing of a certificate of the result of that test made by a “qualified technician”. Yet all the Courts below are agreed, and the stated case so stipulates, that there was no evidence whatever adduced to show that the arresting officer had any reasonable grounds for believing that the accused was driving while impaired. It is difficult to understand how such a test could have been taken and such a certificate issued “pursuant to a demand under subsection 235(1)”. It is, in fact, exactly contrary to a demand made pursuant to that section.

In my consideration of the appeal, I have found most informative the very careful analysis of the

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whole question of the use of the breathalizer by the learned authors of Breathalizer Law in Canada, McLeod and Takach.

In the result, there having been no evidence adduced that the arresting officer had reasonable grounds for believing the appellant to have been driving while impaired, I would rule that the Crown could not prove its case by the production of the certificate of the “qualified technician” since it was not the result of a test taken “pursuant to a demand under subsection 235(1)” as required by s. 237(1)(f).

I would allow the appeal and direct the acquittal of the appellant.

The judgment of Martland, Judson, Pigeon, Beetz and de Grandpré JJ. was delivered by

JUDSON J.—We are concerned here with a charge under s. 236 of the Criminal Code which deals with driving with more than 80 mgs. of alcohol in the blood. The accused was convicted at trial. His conviction was affirmed by the Appellate Division of the Supreme Court of Alberta. In my opinion his appeal to this Court should be dismissed.

The provincial judge stated the case in the following terms:

Did I err in permitting the Certificate of Analysis pertaining to the alcohol content of the blood to be entered when there was, in my opinion, no evidence before the court that the arresting Constable had any reasonable or probable grounds for believing that an offence under Section 234 of the Criminal Code had been committed?

The decision of the provincial judge and the Appellate Division was that s. 236 of the Criminal Code does not make the existence, in the mind of the arresting officer, of reasonable and probable grounds for believing that an offence under s. 234 of the Criminal Code had been committed, an element in proof of a charge under s. 236 when the accused has acceded to the demand of the arrest-

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ing officer to provide a breath sample. Sections 234, 235 and 236 read as follows:

234. Everyone who, while his ability to drive a motor vehicle is impaired by alcohol or a drug, drives a motor vehicle or has the care or control of a motor vehicle, whether it is in motion or not, is guilty of an indictable offence or an offence punishable on summary conviction and is liable

(a) for a first offence, to a fine of not more than five hundred dollars and not less than fifty dollars or to imprisonment for three months or to both;

(b) for a second offence, to imprisonment for not more than three months and not less than fourteen days; and

(c) for each subsequent offence, to imprisonment for not more than one year and not less than three months.

235. (1) Where a peace officer on reasonable and probable grounds believes that a person is committing, or at any time within the preceding two hours has committed, an offence under section 234, he may, by demand made to that person forthwith or as soon as practicable, require him to provide then or as soon thereafter as is practicable a sample of his breath suitable to enable an analysis to be made in order to determine the proportion, if any, of alcohol in his blood, and to accompany the peace officer for the purpose of enabling such a sample to be taken.

(2) Every one who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peace officer under subsection (1) is guilty of an offence punishable on summary conviction and is liable to a fine of not less than fifty dollars and not more than one thousand dollars or to imprisonment for not more than six months, or both.

236. Every one who drives a motor vehicle or has the care or control of a motor vehicle, whether it is in motion or not, having consumed alcohol in such a quantity that the proportion thereof in his blood exceeds 80 milligrams of alcohol in 100 millilitres of blood, is guilty of an offence punishable on summary conviction and is liable to a fine of not less than fifty dollars and not more

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than one thousand dollars or to imprisonment for not more than six months, or both.

There has been some diversity of opinion on this subject. R. v. Wirsta[3]; R. v. Manchester[4], and Reference Re Sections 222, 224 and 224A of the Criminal Code[5], at p. 248, are to the effect that proof of the belief of the peace officer based on reasonable and probable grounds that the accused had committed an offence under s. 234, when the demand for a breath sample was made, is a condition precedent to the admission of certificate evidence of the analysis of the breath sample furnished by the accused. The strong weight of authority is, however, the other way. It is illustrated in the following cases and in the judgment under appeal: R. v. Showell[6], at p. 256; R. v. Orchard[7], at p. 537; appeal dismissed[8]; R. v. Strain[9]; R. v. Flegel[10], particularly at p. 158; R. v. Verischagin[11].

The cases are all reviewed in the judgment under appeal and I have nothing to add to this review. I agree with the conclusion of the Appellate Division expressed in the following terms:

It is my opinion that this Court should accept and adopt the views expressed in the Orchard, Showell and Flegel cases, supra, 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 of the Code, it does not render inadmissible certificate evidence in the case of a charge under s. 236 of the Code. The motive which actuates a peace officer in making a demand under s. 235(1) is not a relevant consideration when the demand has been acceded to.

I would dismiss the appeal.

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Appeal dismissed, LASKIN C.J and SPENCE and DICKSON JJ. dissenting.

Solicitors for the appellant: Prowse & Wiese, Edmonton.

Solicitor for the respondent: The Attorney General of Alberta, Edmonton.