Supreme Court Judgments

Supreme Court of Canada

Brownridge v. R., [1972] S.C.R. 926

Date: 1972-06-29

Clarence Wayne Brownridge (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

1972: March 7; 1972: June 29.

Present: Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Hall, Spence, Pigeon and Laskin JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Civil rights—Motor vehicles—Impaired driving—Breath test—Right to counsel—Refusal to take breath test until lawyer contacted—“Reasonable excuse”—Canadian Bill of Rights, 1960 (Can.), c. 44, s. 2(c) (ii)—Criminal Code, 1953-54 (Can.), c. 51, ss. 7(2), 222, 223.

The appellant was arrested for impaired driving and, at the police station, was requested to submit to a breath test. He asked for an opportunity to speak to his lawyer and refused to give a breath sample when he was denied that opportunity. Two hours later, having spoken with his lawyer, he asked for an opportunity to give a sample of his breath. That offer was refused.

The appellant was convicted of failing, without reasonable excuse, to provide a sample of his breath for analysis upon a demand made pursuant to s. 223(1) of the Criminal Code. On an appeal by way of stated case, the conviction was set aside on the ground that the denial of the appellant’s request to consult counsel afforded him a reasonable excuse to refuse to give a breath sample. On a further appeal by the Crown, the Court of Appeal restored the conviction. The appellant was granted leave to appeal to this Court.

Held (Abbott, Judson and Pigeon JJ. dissenting): The appeal should be allowed and the conviction quashed.

Per Fauteux C.J. and Martland, Ritchie and Spence JJ.: The refusal of the police constable to permit the appellant to speak to his lawyer, in the circumstances of this case, deprived him of the right to retain and instruct counsel without delay, and constituted a reasonable excuse for his refusal to comply with the

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demand of the police constable that he take a breath test. Unless it is apparent that an accused person is not asserting his right to counsel bona fide, but is asserting such right for the purpose of delay or for some other improper reason, the denial of that right affords a “reasonable excuse”. As the very purpose for which the appellant wished to speak to his counsel was in order to determine whether or not he should comply with the demand, he was deprived of his right to consult a lawyer at a time when he was detained for the purpose of furnishing a sample, the analysis of which, or refusal to furnish which, might be used in evidence against him. It would run contrary to the provisions of the Bill of Rights to hold that denial to a man under arrest of “the right to retain and instruct counsel without delay” was incapable of constituting a reasonable excuse for failing to comply with a demand under s. 223 of the Code.

Per Hall and Laskin JJ.: There were two separate issues raised: (1) whether the denial of the opportunity to consult counsel was a reasonable excuse within s. 223(2) and (2) whether that denial, regardless of whether there was a reasonable excuse, constituted such an infringement of the Canadian Bill of Rights as to entitle the appellant to have the information stayed or the conviction set aside.

Denial of an accused’s request to consult a lawyer before he would agree to give a breath sample did not provide a reasonable excuse to an accused for refusing to give such a sample. The phrase “without reasonable excuse” must be regarded as adding a defence or a bar to successful prosecution which would not be available without those words, but not as encompassing defences or bars that would exist without them, such as diplomatic immunity.

It does not lie with an arresting police officer to determine in his discretion or on a superior’s instructions whether or when to permit an arrested person to contact his counsel. The right to retain and instruct counsel without delay, recognized by s. 2(c) (ii) of the Bill of Rights, can only have meaning to an arrested or detained person if it is taken as raising a correlative obligation upon the police authorities to facilitate contact with counsel. The right given by s. 2(c)(ii), when invoked by an accused upon whom a demand is made under s. 223(1), did not

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entitle him to insist on the personal attendance of his counsel if he can reach him by telephone. Primacy must be given to the substantive protection accorded by the Canadian Bill of Rights rather than to the statutory rule of evidence embodied in s. 224A(c) (ii). It is not more important for the Crown, to whom ordinary modes of proof are available, to have the benefit of a rebuttable presumption through an analyst’s certificate than it is for an accused to have the benefit of counsel.

The facts of this case show that s. 223 can operate with due obedience to the Canadian Bill of Rights. All that is required is that in the invocation of or exercise of the powers under it, allowance be made for the exercise of the overriding right given by s. 2(c)(ii). The result of the failure of the police officer to make that allowance vitiated the conviction in this case, because the violation of s. 2(c) (ii) was the very basis upon which the appellant was charged with an offence under s. 223(2) of the Code.

Per Abbott, Judson and Pigeon JJ., dissenting: The phrase “require him to provide then or as soon thereafter as is practicable a sample of his breath” in s. 223 contemplates immediate obedience to the request. What constitutes reasonable excuse is to be determined under common law principles by virtue of s. 7(2) of the Code.

Section 2(c) (ii) of the Bill of Rights applies to “a person who has been arrested or detained”, and such is not the legal situation of one who has been required “to accompany” a peace officer for the purpose of having a breath test taken. The situation in this case is not different because the appellant had already been arrested for impaired driving. He was not deprived of his “right to retain and instruct counsel without delay”. The fact that he was under arrest for impaired driving did not entitle him to obtain legal advice before submitting to the test nor could the refusal to be allowed to contact a legal adviser before submitting to the test be a lawful excuse.

APPEAL from a judgement of the Court of Appeal for Ontario[1], reversing a judgment of Haines J. Appeal allowed, Abbott, Judson and Pigeon JJ. dissenting.

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J. Jennings and D.J.D. Sims, for the appellant.

M. Manning, for the respondent.

The judgment of Fauteux C.J. and of Martland, Ritchie and Spence JJ. was deliverd by

RITCHIE J.—I have had the advantage of reading the reasons for judgment prepared for delivery by my brother Pigeon, but as I do not share his view of the legal effect to be given to the Police Constable’s initial refusal of the appellant’s request to retain and instruct counsel without delay, made while he was in the police station under arrest for impaired driving, I find it necessary to express my views separately.

The appellant was convicted of a charge under s. 223(2) (now 235) of the Criminal Code of failing, without reasonable excuse, to provide a sample of his breath for analysis upon demand made pursuant to s. 223(1). This conviction was set aside on a case stated before Mr. Justice Haines of the Supreme Court of Ontario and it is from the reversal of that decision by the Court of Appeal¹ that the appellant now appeals. We are, of course, bound by and limited to the facts as set forth in the case stated by the learned provincial judge, which are fully set forth in the reasons for judgment of my brother Pigeon, and for my purposes it is only necessary to refer to the following items:

(b) the police officer signaled the accused to stop the vehicle and when the defendant did so, police constable Mabbott detected the odour of an alcoholic beverage on his breath and observed that his eyes were glassy and red and his speech slightly slurred. The accused was arrested for impaired driving and requested by the police constable to get into the police car. The accused did so and was taken to a police station at approximately 1:00 a.m.

(d) The demand for a sample of the accused’s breath was made by police constable Saunders at about 1:00 a.m. on the 19th day of November, 1970.

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(e) The accused then asked for an opportunity to speak to his lawyer for the purpose of determining whether he ought to comply with the demand made to him by police constable Saunders. The accused advised police constable Saunders that he would only take the breath test if so advised by his lawyer. The accused’s request was refused at that time.

(f) At approximately 3:00 a.m. on November 19th, 1970, the accused spoke with his lawyer and then asked for an opportunity to give a sample of his breath, but the offer was refused.

(The italics in the above quotation are my own.)

The four questions submitted by the learned provincial judge in the case stated before Mr. Justice Haines are set out in the reasons for judgment of my brother Pigeon, but in view of the fact that no argument was presented on question No. 3 and the further fact that the case of Curr v. The Queen[2], which has now been decided by this Court, rules out the application of s. 2(d) of the Canadian Bill of Rights, it appears to me that the only questions remaining for consideration in this appeal are the following:

(1) Did I err in law in holding that the accused did not offer a reasonable excuse to refuse to provide a sample of his breath, although he had been denied the opportunity of consulting his lawyer after the opportunity was requested by him.

(2) Did I err in law in holding that the accused’s conduct constituted a refusal to comply with a demand to provide a sample of his breath as contemplated by section 223 of the Criminal Code.

(4) Did I err in law in holding that the information of Douglas Germain sworn on the 19th day of November, 1970, was valid and ought not to be quashed despite the provisions of subparagraph (ii) of subsection (c) of section 2… of the Canadian Bill of Rights, Statutes of Canada 1960, Chapter 44.

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Mr. Justice Haines answered “yes” to the first question, “no” to the second question and “yes” as to s. 2(c) (ii) of the Canadian Bill of Rights.

The Court of Appeal for Ontario, in allowing the Crown’s appeal, directed that all the questions stated by the learned provincial judge should be answered in the negative and ordered that the conviction entered at trial should be restored.

Section 223(2) of the Criminal Code, under which the appellant was charged, reads as follows:

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.

(The italics are my own.)

The demand referred to in this subsection refers to a demand made by a peace officer under s. 223(1) (now 235(1))

…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.

Section 2(c) of the Bill of Rights is in my opinion effective to establish that s. 223 of the Criminal Code shall not be construed or applied so as to

(c) deprive a person who has been arrested or detained

* * *

(ii) of the right to retain and instruct counsel without delay.

The stated case discloses that the accused’s request to speak to his lawyer for the purpose of determining whether he ought to comply with the demand for a sample of his breath was refused by the police at a time when he was in the police station under arrest for impaired driving and was being detained for the purpose of furnishing a breath sample. On these facts appellant’s counsel contends that there was “reasonable excuse” for

[Page 932]

the failure to comply with the demand made under s. 223(1) on the ground that the question of whether or not the appellant was required to give a breath sample was one upon which he was justified in seeking legal advice having regard to the provisions of s. 2(d) of the Bill of Rights, and on the further ground that he had a right to contact his lawyer without delay under the provisions of s. 2(c) (ii) of the Bill.

The refusal of the police constable to permit the appellant to speak to his lawyer, in the circumstances of this case, deprived him of the right to retain and instruct counsel without delay, and constituted a reasonable excuse for his refusal to comply with the demand of the police constable that he take a breath test. Having regard to the provisions of the Bill of Rights, s. 223(2) of the Criminal Code is required to be construed and applied in this sense, so that, unless it is apparent that an accused person is not asserting his right to counsel bona fide, but is asserting such right for the purpose of delay or for some other improper reason, the denial of that right affords a “reasonable excuse” for failing to provide a sample of his breath as required by the section.

It is suggested that the police officer’s refusal did not amount to a refusal of the appellant’s right to consult his counsel without delay, but was simply a refusal to accept the proposition that the accused should not be required to take the breath test until after he had spoken to his counsel. As the very purpose for which the appellant wished to speak to his counsel was in order to determine whether, or not he should comply with the demand and as the appellant was being detained for the purpose of furnishing a breath sample, it seems to me that the refusal to accept this proposition had the direct effect of depriving the appellant of his right to consult his lawyer, and this right was denied him at a time when he was being detained for the purpose of furnishing a sample of breath, the analysis of which, or the refusal to furnish which, might be used as evidence against him on that charge.

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In the courts below reliance has been placed on two English cases decided under the Road Safety Act, 1967 (U.K.), c. 30, the relevant sections of which read as follows:

2. (1) A constable in uniform may require any person driving or attempting to drive a motor vehicle on a road or other public place to provide a specimen of breath for a breath test there or nearby, if the constable has reasonable cause—(a) to suspect him of having alcohol in his body;…

3. (3) A person who, without reasonable excuse, fails to provide a specimen for a laboratory test in pursuance of a requirement imposed under this section shall be guilty of an offence and—(a) if it is shown that at the relevant time he was driving or attempting to drive a motor vehicle on a road or other public place, he shall be liable to be proceeded against and punished as if the offence charged were an offence under section 1(1) of this Act;…

The case of R. v. Clarke[3] is relied on by the Court of Appeal as a relevant authority and I think that in order to assess this case in relation to the present one, it is essential to understand the facts which gave rise to it. These are well set out in the judgment of Geoffrey Lane J., speaking on behalf of the Court of Appeal at page 1009:

The facts of the case, briefly, were these. In the early hours of Wednesday 7th February 1968 two police officers in uniform in a police car followed the applicant, who was driving his vehicle along Holland Park Avenue. His driving gave rise to concern; he was weaving from one lane of the road to the other, and the policemen in their car in due course stopped him. His breath smelt of alcohol, and (according to the evidence of the police officers) one of those officers told him that he wished the applicant to take a breath test. The reply was ‘All right, but I am only tired; I have not been drinking’. Then, when the officer went back to the police vehicle in order to get the test equipment, the applicant started up his motor

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car and suddenly moved off, narrowly missing one of the officers. There then followed a chase over a distance just short of two miles during which, according to the police evidence, the applicant reached speeds of up to 80 miles per hour and went through a number of sets of traffic lights when those lights were showing red. In due course he was stopped by another police car, and was then arrested for failing to take the breath test. He said to the officer ‘You. aren’t a police officer’. He was then taken to a police station and offered a breath test, but did not take it, just saying that he wanted to see the officer in charge. A little later he was again asked to take a breath test, and on this occasion he said ‘I want to see my solicitor’. He was then asked to supply a specimen of blood then or two specimens of urine within an hour, and was told that he would be given part of any specimen supplied and warned of what would happen if he refused to supply them. To that request he replied ‘No, I will not do anything until I’ve seen my solicitor’. At a minute before 4.00 a.m. he was asked to supply two samples of urine and warned of the consequence again of refusal or failure, and to that request he replied ‘No’. Then at shortly before 4.15 a.m. he was once again asked for a specimen of blood and warned of the consequences of failure or refusal and told he would be given a part of any sample supplied, and to that request he said ‘Can I make a statement at this stage?’. Immediately thereafter he was charged with failing to take the breath test, failing to supply samples and dangerous driving, and to that charge he made no reply.

In my view the Clarke case is distinguishable from the present case on the following grounds:

1. In the Clarke case the Court of Appeal found that

The circumstances of the present case were such that the jury were entitled to conclude, and probably did conclude, that the applicant was pursuing a systematic campaign of prevarication, knowing full well that the more time which elapsed before he gave a sample the greater chance of his body metabolising

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the evidence. That being so, the jury would be justified in inferring from the words ‘Can I make a statement at this stage’ that this was another refusal, albeit couched in different words.

In the present case there is no suggestion that the appellant had been pursuing a campaign of prevarication and the delay between the time when the demand was made for a breath sample and the time when he offered it, was caused entirely by the refusal of the police to allow him to contact his counsel.

2. In the Clarke case the accused was charged with refusing to supply a specimen of his blood to the police for testing at a time when he was in custody after having been arrested for failing to take a breath test. At the time of his initial arrest the accused did not make any request to consult with his lawyer but after he reached the police station and was asked to give a sample of his blood and another sample of his breath, he did say that he would not comply with the request until he had legal advice. His attitude was described by the Court of Appeal as follows:

In the present case the applicant’s excuses were these: first of all, that he was doubtful about what his rights were and wanted legal advice;… he wished to have legal advice from the senior officer or a solicitor, and also to make a complaint about the way in which the police had treated him.

Under the circumstances of that case the Court of Appeal found as a matter of law that these matters could not amount to excuses “let alone reasonable excuses”.

It is apparent from a reading of this case that the accused’s refusals were treated as a sham devised to delay or avoid being subjected to a test, but in the present case there was, in my view, a genuine reason for seeking legal advice.

3. In the Clarke case the Court was not concerned with the provisions of the Canadian Bill

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of Rights, and the doubts existing at the time when the present case was heard as to the effect of s. 2(d) of that Bill on the requirement to supply a sample of breath, formed no part of the question which had to be determined.

In the present case the alleged offence took place on November 19, 1970, and, as I have indicated, at that time the Curr case, which was subsequently decided in this Court and which determined that s. 2(d) did not afford a valid reason for refusing to provide a sample, had not been decided by Mr. Justice Fraser or by the Court of Appeal of Ontario.

In view of all the above, I do not think that the Clarke case should be treated as an authority governing the facts of the present case.

The second English case cited by the Court of Appeal was Law v. Stephens[4], where the accused was charged with “failing without reasonable excuse to provide a specimen for a laboratory test contrary to s. 3(3) of the Road Traffic Act”.

In refusing to provide the sample, while in custody in the police station, the accused had said “I am not interested until I have spoken to my solicitor” and again, “No, I want legal advice” and finally, “Not without my solicitor here”. It was contended on his behalf that under these circumstances absence of his solicitor afforded him a reasonable excuse for failing to provide the specimen.

In rendering the decision of the Queen’s Bench Division, Parker C.J., treated the case of Regina v. Clarke, supra, as authority for the proposition that, as a matter of law, this was not capable of being a reasonable excuse within the meaning of s. 3(3) of the Road Traffic Act. In this regard Parker C.J. said, at page 361:

So far as asking for a solicitor to be present on the basis that he required legal advice, the Court of

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Appeal have held quite definitely that that cannot amount to a reasonable excuse. In that connection I think it is only right to say that it is a question of law in the first instance whether something put forward is capable of being a reasonable excuse; if it is capable of being one, then it becomes a matter of fact and degree as to whether or not it amounts to a reasonable excuse, and the burden of course then is on the prosecution to negative it.

(The italics are my own.)

With the greatest respect for the views expressed by Parker C.J., I am unable to treat the case of Regina v. Clarke as holding that an accused’s request for legal advice when in custody is incapable of amounting to “a reasonable excuse”. I think rather that that decision is expressly confined to the very special circumstances with which it was concerned, and that it is based in great degree on the fact that the Court was satisfied that Clarke’s request was a frivolous one made for the purpose of delay. In any event, with the greatest respect for those who hold a different view, I consider that the case of Law v. Stephens, supra, states a proposition which is too broad to be applied in the courts of this country having regard to the rights accorded to the individual by s. 2(c) (ii) of the Bill of Rights, and it appears to me that it would run contrary to the provisions of that statute to hold that denial to a man under arrest of “the right to retain and instruct counsel without delay” was incapable of constituting a reasonable excuse for failing to comply with a demand under s. 223 of the Criminal Code. This is not to say that there may not be cases such as that of Regina v. Clarke where it is apparent that the request for counsel is made purely for the purpose of delay but, as I have said, this is not the case here.

For all these reasons I would allow this appeal, set aside the judgment of the Court of Appeal and restore the order of Mr. Justice Haines which quashed the conviction.

The judgment of Abbott, Judson and Pigeon JJ. was delivered by

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PIGEON J. (dissenting)—This appeal is from a judgment of the Ontario Court of Appeal[5] reversing the decision of Haines J. on a stated case, and restoring the present appellant’s conviction, under subs. 2 of s. 223 (now s. 235) of the Criminal Code, of failing, without reasonable excuse, to provide a sample of his breath for analysis upon a demand made pursuant to subs. (1).

(a) the accused, Clarence Wayne Brownridge, was observed by a police constable Mabbott driving a motor vehicle eastbound on Queen Street, in the City of Toronto at about 12:45 a.m. on the 19th day of November, 1970. The vehicle was travelling without its headlights on and the said police

The case stated by the Provincial Judge was as follows:

constable stopped the vehicle on Dufferin Street after it had turned off Queen Street, travelled then north on Gladstone, then west on Peel and finally north on Dufferin Street.

(b) the police officer signaled the accused to stop the vehicle and when the defendant did so, police constable Mabbott detected the odour of an alcoholic beverage on his breath and observed that his eyes were glassy and red and his speech slightly slurred. The accused was arrested for impaired driving and requested by the police constable to get into the police car. The accused did so and was taken to a police station at approximately 1:00 a.m.

(c) At the police station, police constable Saunders observed the accused and asked the accused to perform certain physical tests as a result of which he formed the opinion that the accused’s ability to drive a motor vehicle was impaired by alcohol. He then demanded that the defendant provide him with a sample of his breath suitable to enable an analysis to be made to determine the proportion, if any, of alcohol in his blood.

(d) The demand for a sample of the accused’s breath was made by police constable Saunders at about 1:00 a.m. on the 19th day of November, 1970.

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(e) The accused then asked for an opportunity to speak to his lawyer for the purpose of determining whether he ought to comply with the demand made to him by police constable Saunders. The accused advised police constable Saunders that he would only take the breath test if so advised by his lawyer. The accused’s request was refused at that time.

(f) At approximately 3:00 a.m. on November 19th, 1970, the accused spoke with his lawyer and then asked for an opportunity to give a sample of his breath, but the offer was refused.

(g) Upon hearing the evidence I held that the accused refused to give a sample of his breath when requested.

The defendant desires to question the validity of the said Order convicting him on the ground that it is erroneous in point of law, the questions submitted for the judgment of the Supreme Court of Ontario being:

(1) Did I err in law in holding that the accused did not offer a reasonable excuse to refuse to provide a sample of his breath, although he had been denied the opportunity of consulting his lawyer after the opportunity was requested by him.

(2) Did I err in law in holding that the accused’s conduct constituted a refusal to comply with a demand to provide a sample of his breath as contemplated by section 223 of the Criminal Code.

(3) Did I err in law in holding that section 223 of the Criminal Code is operative despite the provisions of subsections (d) and (e) of section 2 and section 5 of an Act for the Recognition and Protection of Human Rights and Fundamental Freedoms (Canadian Bill of Rights), Statutes of Canada 1960, Chapter 44.

(4) Did I err in law in holding that the information of Douglas Germain sworn on the 19th day of November, 1970, was valid and ought not to be quashed despite the provisions of subparagraph (ii) of subsection (c) of section 2 and sub-paragraph.(d) of section 2 of the Canadian Bill of Rights, Statutes of Canada 1960, Chapter 44.

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Haines, J. answered these questions as follows:

(1) The answer to question (1) is Yes.

(2) The answer to question (2) is No.

(3) The answer to question (3) is No.

(4) The answer to question (4) is Yes as to s. 2(c) (ii) of the Canadian Bill of Rights, and No as to s. 2(d) of the same Act.

The Court of Appeal held that all the questions should be answered in the negative. Leave to appeal to this Court was granted generally. However, no argument was presented on question (3), as the same matter was involved in the pending case of Curr v. The Queen[6]. The point is now settled by the decision in that case.

Section 223 (now s. 235) reads:

223(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 222, 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.

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The offence contemplated in s. 222 (now s. 234) is impaired driving. There is also in s. 224 (now s. 236) the offence of driving with more than 0.08 per cent blood alcohol. Finally, s. 224A (now s. 237) provides with respect to proceedings under either section, that the evidentiary value of a breath analysis is subject to the following requirements among others:

(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,

The material parts of s. 2 of the Bill of Rights are as follows:

2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to

* * *

(c) deprive a person who has been arrested or detained

(i) of the right to be informed promptly of the reason for his arrest or detention,

(ii) of the right to retain and instruct counsel without delay, or

* * *

(d) authorize a court, tribunal, commission, board or other authority to compel a person to give evidence if he is denied counsel, protection against self crimination or other constitutional safeguards:.

Our decision in the Curr case rules out the application of s. 2(d) and only s. 2(c) (ii) has to be

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considered in the present case. However, it appears more convenient to start by considering the situation under the Criminal Code only.

In its judgment, the Ontario Court of Appeal relied on two decisions of the Criminal Division of the U.K. Court of Appeal under somewhat similar legislation: R. v. Clarke[7], and Law v. Stephens[8]. In the first of those cases, the accused had fled in his car after being stoppd and requested to take a breath test. He was chased at high speed, arrested for failing to take the test, taken to a police station, again requested to take a breath test and also to supply specimens of blood or urine. His last reply was “No, I will not do anything until I have seen my solicitor”. The conviction for dangerous driving and for failing to supply specimens of blood or urine was upheld, the Court expressing the view that the wish to obtain legal advice before submitting to the test for blood alcohol could not be an excuse for not taking it.

In the second case, the accused had willingly accompanied an officer to the police station but his answers to the requests made upon him were that he wanted to speak to his solicitor. He was charged for failing to provide specimens as in the other case. The police contacted the accused’s solicitor, who promptly came to the station and the accused, after speaking to him, offered to provide a specimen. This opportunity was refused by the police on the basis that there had been a refusal some time previously, that that was a final refusal and that the offence was complete. The conviction was upheld.

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In my opinion, the same view ought: to be taken of the legal situation of a person who is properly requested to take a breath test under s. 222 (now s. 234) of the Criminal Code. What the police officer is entitled to do is to “require him to provide then or as soon thereafter as is practicable a sample of his breath…”.The statute clearly contemplates immediate obedience to the request. What may constitute a reasonable excuse within subs. (2) is not defined. Therefore, this is to be determined under common law principles by virtue of s. 7(2) (now s. 7(3)) of the Criminal Code which reads:

7. (2) Every rule and principle of the common law that renders any circumstance a justification or excuse for am act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of the Parliament of Canada, except in so far as they are altered by or are inconsistent with this Act or any other Act of the Parliament of Canada.

The legal situation of a person who, on request, accompanies a peace officer for the purpose of having a breath test taken is not different from that of a driver who is required to allow his brakes to be inspected or to proceed to a weighing machine under s. 39(6) or s. 78(3) of the Highway Traffic Act, R.S.O. 1970, c. 202. Such a person is under a duty to submit to the test. If he goes away, or attempts to go away, to avoid the test, he may be arrested and charged but this does not mean that he is under arrest until this happens. He is merely obeying directions that police officers are entitled to issue. Motorists cannot reasonably expect to be allowed to seek legal advice before complying with such orders. Police officers are fully justified in treating as a definitive refusal a refusal to comply until legal advice is obtained.

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Does s. 2(c) (ii) of the Bill of Rights alter the common law situation with respect to motorists requested to submit to a test required by the Criminal Code as opposed to tests required by provincial legislation? I do not think so. The provision under consideration applies to “a person who has been arrested or detained”. Such is not, it appears to me, the legal situation of one who has been required “to accompany” a peace officer for the purpose of having a breath test taken. The test may well be negative and, in such a case, it would be quite wrong to say that this person was arrested or detained and then released. Detained means held in custody as is apparent from such provisions as s. 15 of the Immigration Act, R.S.C. 1970, c. i-2.

It is now necessary to consider whether, in this case, the situation is different because when the accused was requested to submit to the breath test, he had already been arrested for impaired driving. As a person under arrest, he undoubtedly came within the terms of s. 2(c) (ii) of the Bill of Rights and, therefore, he could not be deprived “of the right to retain and instruct counsel without delay”. But he was not deprived of this right: approximately two hours after being taken to the police station, he was able to speak to his lawyer. It therefore appears from the stated case that what the police refused to do was to accept that the accused should not be required to take the breath test until after he had spoken to his lawyer, not that he should be permitted to retain and to instruct him without delay. When the accused having spoken to his lawyer finally asked for an opportunity to give a sample of his breath, the result of the test, if taken, would not have been available evidence against him. This is said to have occurred at approximately 3 a.m. while the time when the accused was observed driving a vehicle in a manner that attracted the attention of the police is given as 12.45. This was the time when an offence under s. 222 or s. 224 (now s. 234 and s. 236) could be said to have been committed. Therefore, more than two hours had elapsed.

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I fail to see any reason for which a motorist suspected of impaired driving would be entitled to require the opportunity of obtaining legal advice before submitting to a breath test if under arrest at that time, while he would not have such right if not under arrest. I also fail to see how a refusal by the police to allow such a person to contact a legal adviser before submitting to such a test could be a lawful excuse if the person is then under arrest, not if he is only accompanying a police officer on request for the purpose of taking it.

I would dismiss the appeal.

The judgment of Hall and Laskin JJ. was delivered by

LASKIN J.—The central issue in this appeal is whether an arrested person who, subsequent to his arrest, is requested to provide a breath sample under s. 223(1) (now s. 235(1)) of the Criminal Code may be convicted under s. 223(2) (now s. 235(2) of refusing without reasonable excuse to comply with that request if at that time he has not been allowed an opportunity to reach and consult his lawyer after having sought permission to do so. In short, the question before this Court is the effect of s. 2(c) (ii) of the Canadian Bill of Rights upon s. 223 (now s. 235) and associated provisions of the Criminal Code in the light of the circumstances set out below.

This question was not before this Court in Regina v. Curr[9], in which judgment was given on May 1, 1972. That case ruled out attempted reliance by an accused, when requested to give a breath sample, upon the self-crimination provisions of s. 2(d) of the Canadian Bill of Rights. A factual point of difference between the Curr case and the present one is that the accused Curr

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had not been under arrest when he was asked to provide a breath sample; Brownridge, on the other hand, had been arrested on a charge of impaired driving before he was taken to a police station where he was asked to give the sample. I do not attach any significance to this factual difference in its relation to s. 2(c) (ii) of the Canadian Bill of Rights.

Of the four questions set out in the stated case, out of which this appeal arises, only the first and the fourth need be considered. The second concerns the factual question whether accused’s conduct amounted to a refusal to provide a breath sample, and there is no doubt that it did. The third relates to the self-crimination point which was decided in Regina v. Curr. Questions 1 and 4 and the answers thereto given by Haines J. and by the Ontario Court of Appeal respectively are as follows:

1. Did I err in law in holding that the accused did not offer a reasonable excuse to refuse to provide a sample of his breath, although he had been denied the opportunity of consulting his lawyer after the opportunity was requested by him.

4. Did I err in law in holding that the information of Douglas Germain sworn on the 19th day of November, 1970 was valid and ought not to be quashed despite the provisions of subparagraph (ii) of subsection (c) of section 2 and subparagraph (d) of section 2 of the Canadian Bill of Rights, Statutes of Canada 1960 Chapter 44.

Answer to question 1: Haines J., Yes. Court of Appeal, No.

Answer to question 4: Haines J., Yes as to s. 2(c) (ii). No as to s. 2(d). Court of Appeal, No.

The breath sample provisions of the Criminal Code are in the following terms:

223. (1) Where a peace officer on reasonable and probable grounds believes that a person is commit-

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ting, or at any time within the preceding two hours has committed, an offence under section 222, 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.

Related to these provisions are s. 222 (now s. 234) making impaired driving an offence and s. 224 (now s. 236) making it an offence to drive with more than 80 milligrams of alcohol in 100 millilitres of blood. Section 224A (now s. 237) provides that in proceedings under ss. 222 or 224, evidence of the result of the chemical analysis of the sample taken pursuant to s. 223(1) establishes rebuttable proof of the proportion of alcohol in the blood if, inter alia, “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” (s. 224A(c)(ii)).

Section 2(c) (ii) of the Canadian Bill of Rights reads:

2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to

* * *

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(c) deprive a person who has been arrested or detained

* * *

(ii) of the right to retain and instruct counsel without delay,…

Haines J. held that the effect of s. 2(c) (ii) upon s. 223 of the Criminal Code was to provide the accused with a reasonable excuse for refusing to give a breath sample when he was denied the opportunity to consult counsel. In his view, s. 2(c) (ii) did not render s. 223 inoperative but operated upon the construction of s. 223 so as to provide a ground of “reasonable excuse” under that exonerating clause of subs. 2 of that section. Indeed, he went on to say that the statutory defence of reasonable excuse could be invoked in the present case even if there was no Canadian Bill of Rights. Moreover, he was of the opinion that questions 1 and 4 boiled down to the same question in relation to s. 2(c) (ii), and he concluded that the information sworn against the accused under s. 223(2) was accordingly invalid and should be quashed.

The Court of Appeal agreed with Haines J. that one issue only was raised by questions 1 and 4 as they related to s. 2(c)(ii), namely, whether the denial of the accused’s request to consult counsel afforded him a reasonable excuse to refuse to give a breath sample upon demand. It based its negative answer to that question by contrasting the words “without delay” in s. 2(c) (ii) and the words “forthwith or as soon as practicable” in s. 223(1), and concluding that “without delay” did not mean “instantly”, but was to be construed by taking into account all relevant circumstances. In the present case, this meant, in the view of the Court of Appeal, making reasonable allowance for the operation of the policy embedded in s. 223, which commanded a police constable to act forthwith, i.e. immediately, or as soon as the necessary test equipment could be procured, due regard being had to the two hour time limitation of s. 224A.

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It is not disputed in the present case that there were reasonable and probable grounds within the stipulations of s. 223(1) to support a demand for a breath sample. Counsel for the appellant accused contended on this basis, and having regard to what happened after the accused was arrested, that there were two separate issues raised by questions 1 and 4 and not simply one as the Courts below had stated. For him, the question whether the denial of the opportunity to consult counsel was a reasonable excuse within s. 223(2) was a different question from whether that denial (regardless of whether there was a reasonable excuse) constituted such an infringement of the Canadian Bill of Rights as to entitle the accused to have the information stayed or quashed or the conviction set aside.

In my opinion, the stated case does raise two separate issues in its questions 1 and 4. Question. 1 has to do with the construction and application of s. 223 alone, but question 4 raises a more general issue of the effect of an infringement of the Canadian Bill of Rights. That question as formulated in the stated case is limited to the effect upon the criminal proceedings against the accused of the alleged infringement of one of the guarantees of the Canadian Bill of Rights.

Counsel for the Crown conceded in this Court that s. 2(c) (ii), having regard to its text and to the other provisions of the Canadian Bill of Rights, gave an accused a right to call for counsel prior to trail. He submitted, however, that the denial of that right gives rise to no remedy save that of having a federal enactment declared inoperative. In the present case, moreover (so his contention went) the discretion given to a police officer under s. 223(1) of the Criminal Code to demand a breath sample was not in conflict with the accused’s right to invoke s. 2(c)(ii). I understood his submission to go this far; that even if there was a conflict which emerged in the administration of the legislation, the accused’s position in respect of. the charge against him was not affected by s. 2(c) (ii) of. the Canadian Bill of Rights; no

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remedy was prescribed by that Act other than to render legislation inoperative, as in Regina v. Drybones[10]; no such consequence arose in the present case; and the infringement of a right arising prior to trial could not affect the regularity of the trial itself. I shall return to the question of the available relief after I have dealt with the issue raised in question 1.

The precise form of question 1 does not, in my opinion, reduce it to a question of fact. I read it to mean that the trial judge ruled as a matter of law that denial of an accused’s request to consult a lawyer before he would agree to give a breath sample did not provide a reasonable excuse to an accused for refusing to give such a sample.

I agree with this ruling of the trial judge because I regard the phrase “without reasonable excuse” as adding a defence or a bar to successful prosecution which would not be available without those words, but not as encompassing defences or bars that would exist without them. For example, a right of diplomatic immunity from the domestic criminal law would exist regardless of the absence of the words “without reasonable excuse”; and similarly, in my view, if s. 2(c) (ii) of the Canadian Bill of Rights sets up a bar, it is one which is independent of the presence of the words in question. It would be strange, indeed, if the effect of the immunity above-mentioned or of the Canadian Bill of Rights was vitiated by repeal of the words “without reasonable excuse”.

I take as another illustration the two hour time limit mentioned in s. 223(1). It would be a defence to any demand to provide a breath sample

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that the alleged offence had been committed more than two hours prior thereto. This defence arises independently of any that are envisaged by the words “without reasonable excuse” and hence is not dependent on them.

The English cases cited to this Court, such as Regina v. Clarke[11] and Law v. Stephens[12], apart from such considerations as were raised by Haines J. in his discussion of them, are inapplicable. The right to counsel in England does not stand on such a statutory foundation as is provided here by the Canadian Bill of Rights. There, a defence on that basis would not arise independently of reliance on the exoneration given by the words “without reasonable excuse”.

The terms of s. 223(1), taken alone, appear to me to warrant the construction that, generally speaking, the police are obliged to proceed promptly to carry out their duties thereunder without waiting upon third parties whose aid an accused may seek, whether it be his doctor or his lawyer or his parent or guardian. I would not, therefore, agree to any general rule that a request for such third party aid must qualify as reasonable excuse within the meaning of the section.

It follows from my reading of s. 223 that question 1, confined as it is strictly to the issue of reasonable excuse, should be answered in the negative. This brings me to the larger issue posed by question 4, which, put broadly, is whether the administration of s. 223 is in any way qualified by s. 2(c) (ii) and, if so, whether the accused could properly be tried or convicted on the charge against him, laid under s. 223(2), when he was denied an opportunity to consult counsel.

I do not share the opinion of the Ontario Court of Appeal that the right to resort to s. 2(c)

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(ii) in the face of the invocation of s. 223(1) is preserved by giving different meanings to the phrase “without delay” in s. 2(c) (ii) and to the phrase “forthwith or as soon as practicable” in s. 223 (1). Neither taken by themselves nor in the context in which they appear do the phrases convey any lesser sense of urgency in the one case than in the other. I cannot reconcile the Court of Appeal’s view of “forthwith” in the present case with the view it took of that word in its earlier decision in Regina c. MacGillivray[13]. For all practical purposes, “without delay” and “forthwith” are interchangeable. Whatever leeway of time each allows is particular to its own setting; I can see no justification for finding leeway in one by measuring it against the other, except as a matter of preference for the policy which the one or the other expresses.

If there is to be a preference, I think that the language of the Canadian Bill of Rights requires that it be accorded to the guarantees of that enactment. Section 2 enjoins a construction and application of a law of Canada, in this case s. 223, that would abridge or infringe any of the rights or freedoms recognized in the Canadian Bill of Rights; and one of these is the right of an arrested or detained person to retain and instruct counsel without delay. I must note however that in particularizing certain rights, s. 2 speaks in terms of depriving an arrested or detained person of the right to retain and instruct counsel without delay. I do not see that this weakens the injunction against abridgment or infrigement.

On this view, it does not lie with an arresting police officer to determine in his discretion or on a superior’s instructions whether or when to permit an arrested person to contact his counsel. The right to retain and instruct counsel without delay

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can only have meaning to an arrested or detained person if it is taken as raising a correlative obligation upon the police authorities to facilitate to reach counsel, if granted, would mean inability contact with counsel. This means allowing him upon his request to use the telephone for that purpose if one is available. I am not concerned in this case with determining how many calls must be permitted. Here, on the facts, the accused was prevented from making even one. I am content to say for the purposes of this case that the accused’s right under s. 2(c) (ii) would have been sufficiently recognized if, having been permitted to telephone, he had reached his counsel and had spoken with him over the telephone. I would not construe the right given by s. 2(c)(ii), when invoked by an accused upon whom a demand is made under s. 223(1), as entitling him to insist on the personal attendance of his counsel if he can reach him by telephone. I refrain from enlarging on the matters mentioned in this paragraph of my reasons because it is better that this be done when particular cases call for it.

On the facts of the present case, it appears to me quite probable that an opportunity could have been given to the accused to try to reach counsel consistently with requiring him to submit to the breath test within the two hour period within which an analyst’s certificate of the result of the test would be admissible as prima facie proof of the proportion of alcohol in the accused’s blood. The stated case shows that it was about 12:45 a.m. when the accused was seen by a police constable driving a motor vehicle; and it was about 1 a.m. the same day that the accused, having been arrested and taken to a police station, was asked to provide a breath sample; and it was at that time that he asked for an opportunity to speak to his lawyer and refused to give a breath sample when he was denied that opportunity. He did speak to his lawyer about 3 a.m. the same day, and then offered to give a breath sample but his offer was refused. I assume that it was refused because of the lapse of the two hour period.

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Before turning to my view of the consequences that flow from the state of the facts herein and from the probability that I have indicated, I wish to face up to the situation where the request to take the breath sample within the two hours mentioned in s. 223(1) and s. 224A(c)(ii), thus obliging the Crown to prove its case without the benefit of a rebuttable presumption. Weighing the respective interests involved, I have no doubt that primacy must be given to the substantive protection accorded by the Canadian Bill of Rights rather than to the statutory rule of evidence embodied in s. 224A(c) (ii). I cannot be persuaded that it is more important for the Crown, to whom ordinary modes of proof are available, to have the benefit of a rebuttable presumption through an analyst’s certificate than it is for an accused to have the benefit of counsel.

Having regard to the facts and to the probability stated, the remaining issue is whether the improper denial of an opportunity to consult counsel affects the validity of the information upon which the accused was tried and convicted or the validity of the conviction itself. Question 4 is not framed in a way which expressly raises the validity of the conviction, but I take this to be necessarily involved in it; certainly the case was argued on this basis as well as having been so treated in the respective factums of the parties.

This is not a case where the infringement of the Canadian Bill of Rights renders a federal enactment inoperative. Regina v. Drybones was a case where the particular federal enactment could have no operation at all in the face of the Canadian Bill of Rights. The present case does not present such a blunt face; its facts show that s. 223 can operate with due obedience to the Canadian Bill of Rights. Hence, all that is required is that in the invocation of or exercise of the powers under s. 223 allowance be made for the exercise of the overriding right given by s. 2(c) (ii) of the Canadian Bill of Rights.

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In my view, the result of the failure of the police officer who demanded the breath sample to make that allowance vitiated the conviction in this case. This follows not on any theory that violation of the Canadian Bill of Rights carries this consequence in every criminal case, but because the violation in this case was the very basis upon which the accused was charged with an offence under s. 223(2). In short, the refusal of the accused to give the breath sample until he had an opportunity to consult a lawyer, a position that he was entitled to take on the facts herein and on the application of s. 2(c) (ii) of the Canadian Bill of Rights to those facts, was the foundation of the charge and conviction for refusing to give a breath sample when so requested.

A police officer cannot turn his violation of an accused’s rights into an exercise of lawful powers of his own so as to support a charge of a criminal offence which ordinarily arises if those powers are flouted. Where the accused’s rights have primacy, as is the case here, the police officer cannot assert his own powers as being then lawfully exercised when that assertion amounts to a denial of the rights of an accused.

I am not dealing here with a situation where an offence has been allegedly committed prior to the denial of the right to counsel, or where the denial of the right to counsel, if it occurs first, is unrelated to an offence allegedly committed subsequently. Such cases as Regina v. Steeves[14], O’Connor v. The Queen[15] and Regina v. Ballegeer[16] do not touch the kind of situation presented here, although the last‑mentioned one has some affinity. There, the denial of right to counsel, following a charge against and detention of an accused, from

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whom a statement was subsequently obtained, as a result of which he pleaded guilty, was the basis of an order for a new trial so that the accused could withdraw his plea of guilty and plead not guilty.

It follows from my reasons that I would answer question 1 in the negative and question 4 (in its reference to s. 2(c) (ii)) in the affirmative. In the result, I would allow the appeal, set aside the order of the Ontario Court of Appeal and restore the order of Haines J. quashing the conviction.

Appeal allowed, Abbott, Judson and Pigeon J.J. dissenting.

Solicitor for the appellant: David J.D. Sims, Toronto.

Solicitor for the respondent: The Attorney General of Ontario, Toronto.