Supreme Court Judgments

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R. v. Bartle, [1994] 3 S.C.R. 173

 

Kenneth Bartle            Appellant

 

v.

 

Her Majesty The Queen                                                                   Respondent

 

Indexed as:  R. v. Bartle

 

File No.:  23623.

 

1994:  March 2, 3; 1994:  September 29.

 


Present:  Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

 

on appeal from the court of appeal for ontario

 

                   Constitutional law ‑‑ Charter of Rights  ‑‑ Right to retain and instruct counsel and to be informed thereof ‑‑ Free duty counsel ‑‑ Rights read to person under arrest mentioning availability of legal aid but not mentioning availability of free and immediate duty counsel by toll‑free telephone ‑‑ Arrest made outside normal working hours ‑‑ Person under arrest not knowing who to call ‑‑ Incriminating statement made ‑‑ Whether or not statement should be excluded from evidence ‑‑ Canadian Charter of Rights and Freedoms, ss. 10 (b), 24(2)  ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 253 (b), 254(3) (a), (b), (5) .

 

                   The appellant was arrested for impaired driving after failing a roadside breathalyser test in the early hours of a Saturday morning.  The arresting officer read the appellant his rights under s. 10 (b) of the Charter  from a pre‑printed caution card that mentioned the availability of legal aid.  The officer did not, however, refer to the fact that free and immediate preliminary legal advice was available from duty counsel, who could be reached by calling a toll-free number printed on the caution card.  Shortly after the caution was read to him the appellant made an incriminating statement.  After being taken to the police station, the appellant was twice asked whether he wanted to call a lawyer.  Again, no mention was made of the toll‑free number for free duty counsel.  On both occasions the appellant declined.  He later testified that he thought that he could only contact a lawyer during normal working hours, and that he had indicated to a constable that he did not know who to call at that time of night.  The constable, on the other hand, testified that appellant simply replied "no" when asked if he wanted to contact a lawyer.

 

                   The appellant's conviction was overturned on appeal to the Ontario Court, General Division but was restored by the Court of Appeal.  At issue was whether the information component of s. 10 (b) of the Charter  requires that police routinely refer to the existence and availability of 24‑hour duty counsel services providing free, preliminary legal advice, that can be reached by telephoning a toll‑free number and, if so, whether the evidence obtained following a failure by the police to fulfil their informational duty should be excluded under s. 24(2)  of the Charter .

 

                   Held (L'Heureux‑Dubé and Gonthier JJ. dissenting):  The appeal should be allowed.

 

                   The issues are decided as follows:

                  

                   Section 10 (b) of the Charter  was violated:  Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ. (L'Heureux‑Dubé J. dissenting). 

 

                   Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ. held that there is a duty to advise detainees of existing duty counsel services.  McLachlin J. held that there is a duty to advise of a right to immediate consultation with counsel independent of financial means, even if duty counsel services are not available.  L'Heureux-Dubé J. held that there is no duty to advise detainees of the existence of counsel services, whether or not such services are available.

                                      ______________________________________

 

(1)  Section 10 (b) of the Charter 

 

                   Per Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ.:  Section 10 (b) places three duties on state authorities:  the duty to inform detainees of the right to counsel, the duty to provide them with a reasonable opportunity to exercise this right, and the duty to curtail questioning until that reasonable opportunity has been exercised.  The first duty is an informational one.  The second and third are implementation duties that are triggered only if a detainee expresses the wish to exercise the right to counsel.  The right to counsel that s. 10 (b) provides is not absolute.  Unless a detainee invokes the right and is reasonably diligent in exercising it, the correlative duty on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended.  The rights guaranteed by s. 10 (b) may be waived by the detainee, but the standard for waiver is high, especially in circumstances where the alleged waiver has been implicit.  The information component of the right to counsel must accordingly be comprehensive in scope and be presented by police authorities in a "timely and comprehensible" manner.  Unless detainees are clearly and fully informed of their rights at the outset, they cannot be expected to make informed choices and decisions about whether or not to contact counsel and, in turn, whether to exercise other rights, such as their right to silence.  Moreover, in light of the rule that police are not required to assure themselves that a detainee fully understands his or her rights, absent special circumstances indicating that a detainee does not understand the s. 10 (b) caution, it is important that the standard caution given to detainees be as instructive and clear as possible.

 

                   The jurisprudence has added two elements to the information component.  A detainee must be given information about access to legal aid and to duty counsel.

 

                   Imposing additional informational requirements on the police is justified by the need to fulfil the underlying purpose of the Charter ‑guaranteed right to counsel.  Central to s. 10 (b) is the information component, which is what is provided universally to all detainees and upon which subsequent correlative duties on the state hinge.

 

                   R. v. Brydges stands for the proposition that police authorities are required to inform detainees about Legal Aid and duty counsel services which are in existence and available in the jurisdiction at the time of detention.  Basic information about how to access available services which provide free, preliminary legal advice should be included in the standard s. 10 (b) caution.  Failure to provide such information is a breach of s. 10 (b).  Where the informational obligations under s. 10 (b) have not been properly complied with by the police, questions about whether a particular detainee exercised his or her facilitation rights do not properly arise for consideration.  (These questions may become relevant, however, when considering whether the evidence obtained in the course of the Charter  violation should be excluded under s. 24(2)  of the Charter ).  The breach of s. 10 (b) is complete, except in cases of waiver or urgency, upon a failure by state authorities to inform a detainee properly of his or her right to counsel and until such time as that failure is corrected.

 

                   The validity of a waiver of a procedural right is dependent on it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect.  This standard applies equally to Charter  rights.  In the case of s. 10 (b)'s informational component, requiring that a person waiving the right have "full knowledge" of it means that he or she must already be fully apprised of the information that he or she has the right to receive.  The fact that a detainee indicates that he or she does not wish to hear the information conveyed by the standard police "caution" mandated by s. 10 (b) will not, by itself, be enough to constitute a valid waiver of s. 10 (b)'s informational component.

 

                   If the circumstances reveal that a particular detainee does not understand the standard caution, the authorities must take additional steps to ensure that the detainee comprehends the rights guaranteed by s. 10 (b), and the means by which they can be exercised.  Conversely, situations may occasionally arise in which the authorities' duty to make a reasonable effort to inform the detainee of his or her s. 10 (b) rights will be satisfied even if certain elements of the standard caution are omitted.  This will only be the case if the detainee explicitly waives his or her right to receive the standard caution, and if the circumstances reveal a reasonable basis for believing that the detainee in fact knows and has adverted to his rights, and is aware of the means by which these rights can be exercised.  The fact that a detainee merely indicates that he or she knows his or her rights will not, by itself, provide a reasonable basis for believing that the detainee in fact understands their full extent or the means by which they can be implemented.  There must be a reasonable basis for believing that a detainee who waives the informational component of s. 10 (b) is, in fact, cognizant of some, or all, of the information contained in the standard caution.  In this case, omitting this information from the standard caution may not result in a violation of s. 10 (b).

 

                   The standard for waiver of the informational right is high.  In light of the informational component's importance in ensuring that the purposes of s. 10 (b) are fully recognized, the validity of waivers of that component should only be recognized where it is clear that the detainee already fully understands his or her s. 10 (b) rights, fully understands the means by which they can be exercised, and adverts to those rights.  Requiring that these conditions be met ensures that any subsequent waiver of the right to counsel made following a waiver of the informational component will be a fully informed one.  Since the informational obligations s. 10 (b) imposes on state authorities are not onerous, it is not unreasonable to insist that these authorities resolve any uncertainty that might exist regarding the detainee's knowledge of his or her rights.

 

                   The appellant in this case did not express any interest in waiving any of his informational rights, including his right to be informed of the existence of Brydges duty counsel services, and moreover, the evidence did not reasonably support the inference that he knew that such services were available.  Therefore, he did not waive his s. 10 (b) informational rights, so the authorities' failure to inform him properly of the availability of duty counsel resulted in a s. 10 (b) violation.

 

                   Per La Forest J.:  The reasons of Lamer C.J. regarding the scope of obligation of the police to inform a person arrested or detained of existing and available duty counsel services were agreed with.

 

                   Per Gonthier J.:  Agreement was expressed with the reasons of Lamer C.J. as to the scope of the obligation of the police regarding disclosure upon arrest or detention of existing and available duty counsel services and with the conclusion that appellant's s. 10 (b) rights were infringed.

 

                   Per McLachlin J.:  At a minimum, a detainee must be informed of his or her right to retain and instruct counsel immediately upon detention, and that the right to do so is conferred even on those individuals who cannot afford private counsel.  This information must be provided to all detainees, regardless of the presence or absence of duty counsel systems in the jurisdiction at the time of detention.  All detainees in Canada have equal rights under s. 10 (b), although the means by which those rights may be exercised may not exist in all jurisdictions.  Where no means exist for implementing the right to counsel under s. 10 (b), a detainee is nevertheless entitled to be told of the scope of his or her rights, after which he or she can make an informed choice about exercising the right.  In those jurisdictions where a duty counsel scheme has in fact been implemented, there is an additional duty to inform detainees of the existence and availability of duty counsel, including information about how to access such services.

 

                   The caution given here fell short of meeting even the two minimum requirements of the informational component of s. 10 (b), let alone the additional requirement of informing the detainee of available legal aid.  Once it has been established that the detainee was not properly informed of his or her right to counsel, the breach of s. 10 (b) is complete and issues such as waiver and due diligence do not arise for consideration.

 

                   Per L'Heureux‑Dubé J. (dissenting):  Section 10 (b) of the Charter  requires the police to inform a person under arrest or detention of the right to consult counsel of choice.  If the detainee expresses the desire to consult counsel, the police must provide the detainee with a reasonable opportunity to do so and must refrain from questioning the detainee until the detainee has had that opportunity.  The detainee, however, must exercise reasonable diligence in attempting to consult counsel. 

 

                          While it is desirable to inform a detainee of existing duty counsel services in all circumstances, such information is not constitutionally required by s. 10 (b) of the Charter .  Since s. 10(b) does not require the provinces to establish Legal Aid or duty counsel programs, it is not constitutionally required that police officers provide detainees with information concerning such programs, even in the event that they exist.  R. v. Brydges goes no further than requiring police officers to inform a detainee of the existence and availability of free advice from Legal Aid and duty counsel when the detainee expresses a concern about his or her ability to afford a lawyer.

 

                          On this basis, since the caution, information and facilitation given in this case by the police to the appellant upon his detention met the s. 10(b) requirements discussed above, the appeal should be dismissed.

 

(2)  Section 24(2)  of the Charter 

 

                   Per Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ.:  To exclude evidence under s. 24(2) , a Charter  violation in the course of obtaining the evidence must first occur.  It must also be found that, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute.  In this case, both the breathalyser evidence and the self‑incriminating statement were obtained in the context of the infringement of the appellant's right to counsel under s. 10 (b).

 

                   Although the applicant bears the ultimate burden of persuasion under s. 24(2) , the onus on certain issues will shift to the Crown.  Under the second branch of s. 24(2) , an issue that arises is whether the accused would have acted any differently had there been no s. 10(b) violation.  The legal burden (the burden of persuasion) of establishing that a s. 24(2)  applicant would not have acted any differently rests on the Crown.  Where conscripted evidence is involved, the conclusion must be drawn that trial fairness has been adversely affected because the evidence might not have been obtained if there had been no breach.  Two reasons underlie this conclusion.  First, breaches of s. 10(b) tend to impact directly on adjudicative fairness.  Where self‑incriminatory (as opposed to real) evidence has been obtained as a result of a s. 10(b) violation, its admission will generally have a negative affect on the fairness of the trial.  Second, given this Court's warnings about the dangers of speculating as to the advice a lawyer has given a detainee, absent the s. 10(b) breach, any uncertainty about what an accused would have done should be resolved in the accused's favour.  For the purposes of considering the effect of admission of evidence on trial fairness, courts assume that the incriminating evidence would not have been obtained but for the violation.

 

                   If the state claims that there was no causal link between a Charter  breach and the obtaining of evidence, it is the state that should bear the burden of proving this assertion.

 

                   Although the scope of available legal advice in the impaired driving context is necessarily limited, there is sufficient scope for legal advice to a detainee who has received a breathalyser demand pursuant to s. 254(3)(a) of the Code to say that courts must not speculate about the nature of that advice and whether it would have made any difference to the outcome of the case.  An ex post facto approach should not be used to determine whether or not the defence of "no reasonable and probable grounds" was actually available to the accused on the facts.  One of the purposes of s. 10(b) is to provide detainees with an opportunity to make informed choices about their legal rights and obligations.  This opportunity is no less significant when breathalyser charges are involved.  Breathalyser evidence in the impaired driving context cannot be held ipso facto not to be self‑incriminating evidence.  Similarly, it cannot be said that its admission does not affect the fairness of a trial.

 

                   The evidence should be excluded under s. 24(2)  of the Charter .  Admission of the breathalyser tests and the self‑incriminatory statement would adversely affect the fairness of the trial.  To try and draw conclusions one way or the other as to what the appellant would have done, had he been properly cautioned, would be speculative and the uncertainty must accordingly be resolved against the Crown.  Where the impugned evidence runs afoul of the "trial fairness" factor, admissibility cannot be saved by resorting to the "seriousness of the violation" factor.  The good faith of the police and questions as to the seriousness of the breach, while favouring admission, cannot cure the fact that the admission would render the trial unfair.  Notwithstanding the appellant's near admission of guilt and the seriousness of the problem of drunk driving, the evidence should be excluded in the long‑term interests of the administration of justice.  Section 24(2)  must work together with s. 10 (b) to ensure that the privilege against self‑incrimination and the principle of adjudicative fairness are respected and protected in our criminal justice system.

 

                   Per La Forest J.:  The breathalyser test should be excluded under s. 24(2)  of the Charter , substantially for the reasons given by Lamer C.J., but with some observations about the distinction between conscriptive evidence and real evidence.  That distinction is not always helpful; the terms are not mutually exclusive because evidence may well be both.  Here the evidence was undoubtedly conscriptive (though by virtue of statute) but the argument that it is real evidence is also maintainable.  Rather than relying on the foregoing distinction, it is more useful to examine whether the obtention of the evidence was related to the Charter  breach.

 

                   Here, the breach of s. 10(b) deprived the accused of the possibility of making a choice about whether or not to take the test.  The range of advice available to counsel in the particular circumstances was limited, but such advice may well have changed the option exercised by the accused.  This inability to exercise a choice because of the failure of the police to comply with the duty set forth in Brydges was compelling.  Though the case for excluding the evidence was by no means overwhelming, the repute of the administration of justice on the long term is better served by such exclusion, given the need to underline for the police the importance of complying with their duties in relation to the accused's right to counsel.

 

                   Per McLachlin J.:  The exclusion of the impugned evidence under s. 24(2)  of the Charter  was in the best interests of the administration of justice.

 

                   Per L'Heureux‑Dubé J. (dissenting):  Even if there had been an infringement of s. 10(b), the breathalyser evidence and the appellant's statement should not be excluded under s. 24(2)  of the Charter , since, on the basis of the test set out in R. v. Collins, the violation, had there been one, was not a serious one and the admission of the evidence would not bring the administration of justice into disrepute and render the trial unfair.

 

                   As regards the first set of factors under the Collins test, admission of the breathalyser results would not render the trial unfair.  They are not self-incriminating evidence in the same sense as a confession.  Rather, they are indicia of a physical condition which existed independently and which could in fact be observed by police officers and recorded by them. Police officers would have required the appellant to take the breathalyser test regardless of whether he spoke to them or to counsel as the breathalyser test is statutorily compellable under the Criminal Code .

 

                          With respect to the appellant's incriminating statement, even if it would not have been made but for the Charter  breach, its admission would not seriously prejudice the appellant in that it presents evidence which was otherwise and independently available through the results of the breathalyser tests.

 

                          As regards the seriousness of the Charter  violation, the evidence disclosed that the police had been acting in good faith.  Consequently, the admission of the evidence is favoured by this second set of factors under the Collins test.

 

                          The final group of factors to consider under the Collins test concern the effect of the exclusion of the evidence on the administration of justice.  Offences against s. 253 (b) are extremely serious offences and this has been consistently recognized by this Court.  Thus, when considered in conjunction with the fairness of the trial and the nature of the Charter  violation, the seriousness of the offence demonstrates that it is the exclusion, rather than admission of the evidence, which would tend to bring the administration of justice into disrepute.

 

                   Per Gonthier J. (dissenting):  In agreement with L'Heureux‑Dubé J., the evidence should not have been excluded under s. 24(2)  of the Charter .

 

Cases Cited

 

By Lamer C.J.

 

                   R. v. Pozniak, [1994] 3 S.C.R. 310; R. v. Harper, [1994] 3 S.C.R. 343; R. v. Matheson, [1994] 3 S.C.R. 328; R. v. Prosper, [1994] 3 S.C.R. 236, rev'g (1992), 113 N.S.R. (2d) 156; R. v. Brydges, [1990] 1 S.C.R. 190; R. v. Anderson (1984), 10 C.C.C. (3d) 417; R. v. Parks (1988), 33 C.R.R. 1; R. v. Strachan, [1988] 2 S.C.R. 980; R. v. Manninen, [1987] 1 S.C.R. 1233; R. v. Hebert, [1990] 2 S.C.R. 151; Clarkson v. The Queen, [1986] 1 S.C.R. 383; R. v. Evans, [1991] 1 S.C.R. 869; R. v. Tremblay, [1987] 2 S.C.R. 435; R. v. Black, [1989] 2 S.C.R. 138; R. v. Dubois, [1990] R.J.Q. 681, (1990), 54 C.C.C. (3d) 166; R. v. Baig, [1987] 2 S.C.R. 537; R. v. Smith (Norman MacPherson), [1991] 1 S.C.R. 714; Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41; R. v. Therens, [1985] 1 S.C.R. 613; R. v. I. (L.R.) and T. (E.), [1993] 4 S.C.R. 504; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Greffe, [1990] 1 S.C.R. 755; R. v. Ross, [1989] 1 S.C.R. 3; R. v. Elshaw, [1991] 3 S.C.R. 24; R. v. Schmautz, [1990] 1 S.C.R. 398; R. v. Mohl, [1989] 1 S.C.R. 1389; R. v. Jackson (1993), 15 O.R. (3d) 709.

 

By La Forest J.

 

                   Referred to:  R. v. Mellenthin, [1992] 3 S.C.R. 615; R. v. Beare, [1988] 2 S.C.R. 387; R. v. Debot, [1989] 2 S.C.R. 1140; R. v. Brydges, [1990] 1 S.C.R. 190.

 

By McLachlin J.

 

                   Followed:  R. v. Prosper, [1994] 3 S.C.R. 236.

 

By L'Heureux‑Dubé J. (dissenting)

 

                   R. v. Pozniak, [1994] 3 S.C.R. 310; R. v. Harper, [1994] 3 S.C.R. 343; R. v. Matheson, [1994] 3 S.C.R. 328; R. v. Prosper, [1994] 3 S.C.R. 236, rev'g (1992), 113 N.S.R. (2d) 156; R. v. Therens, [1985] 1 S.C.R. 613; R. v. Manninen, [1987] 1 S.C.R. 1233; R. v. Tremblay, [1987] 2 S.C.R. 435; R. v. Baig, [1987] 2 S.C.R. 537; R. v. Strachan, [1988] 2 S.C.R. 980; R. v. Ross, [1989] 1 S.C.R. 3; R. v. Black, [1989] 2 S.C.R. 138; R. v. Smith (Joey Leonard), [1989] 2 S.C.R. 368; R. v. Brydges, [1990] 1 S.C.R. 190; R. v. Schmautz, [1990] 1 S.C.R. 398; R. v. Smith (Norman MacPherson), [1991] 1 S.C.R. 714; R. v. Evans, [1991] 1 S.C.R. 869; R. v. Grant, [1991] 3 S.C.R. 139; R. v. I. (L.R.) and T. (E.), [1993] 4 S.C.R. 504; R. v. Lippé, [1991] 2 S.C.R. 114; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; R. v. Creighton, [1993] 3 S.C.R. 3; R. v. Finlay, [1993] 3 S.C.R. 103; Valente v. The Queen, [1985] 2 S.C.R. 673; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Beare, [1988] 2 S.C.R. 387; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053; R. v. L. (D.O.), [1993] 4 S.C.R. 419; R. v. Levogiannis, [1993] 4 S.C.R. 475; R. v. Finta, [1994] 1 S.C.R. 701; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Colarusso, [1994] 1 S.C.R. 20; R. v. Thomsen, [1988] 1 S.C.R. 640; R. v. Seo (1986), 25 C.C.C. (3d) 385; R. v. Hufsky, [1988] 1 S.C.R. 621; R. v. Ladouceur, [1990] 1 S.C.R. 1257; R. v. Wilson, [1990] 1 S.C.R. 1291; R. v. Mellenthin, [1992] 3 S.C.R. 615.

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms, ss. 7 , 8 , 10 (b), 11 (d), 24(2) .

 

Criminal Code, R.S.C., 1985, c. C‑46, ss. 253 (b), 254(3) (a), (5) .

 

Authors Cited

 

Kirewskie, Cassandra.  "Update:  R. v. Colarusso" (1994), 4 N.J.C.L. 223.

 

Moore, Kathryn.  "Police Implementation of Supreme Court of Canada Charter  Decisions:  An Empirical Study" (1992), 30 Osgoode Hall L.J. 547.

 

Prairie Research Associates. Duty Counsel Systems:  Summary Report (April 1993).

 

Prairie Research Associates. Duty Counsel Systems:  Technical Report (April 1993).

 

Sopinka, John, Sidney N. Lederman and Alan W. Bryant.  The Law of Evidence in Canada.  Toronto:  Butterworths, 1992.

 

                   APPEAL from a judgment of the Ontario Court of Appeal (1993), 81 C.C.C. (3d) 353, 63 O.A.C. 109, 22 C.R. (4th) 1, 45 M.V.R. (2d) 107, 15 C.R.R. (2d) 212, allowing an appeal from a judgment of Cavarzan J. (1992), 41 M.V.R. (2d) 266, 12 C.R.R. (2d) 373, allowing an appeal from conviction by Perozak Prov. Div. J.  Appeal allowed, L'Heureux‑Dubé and Gonthier JJ. dissenting.

 

                   Alan D. Gold, for the appellant.

 

                   Ian R. Smith, for the respondent.

 

                   The judgment of Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ. was delivered by

 

//Lamer C.J.//

 

                   Lamer C.J. -- This case was heard in conjunction with four other cases also raising s. 10 (b) of the Canadian Charter of Rights and Freedoms .  These other cases, which are handed down concurrently with this one, consist of R. v. Pozniak, [1994] 3 S.C.R. 310; R. v. Harper, [1994] 3 S.C.R. 343; R. v. Matheson, [1994] 3 S.C.R. 328; and R. v. Prosper, [1994] 3 S.C.R. 236.  While all of the s. 10 (b) cases concern the scope of the state's obligations with respect to duty counsel, in this case as well in that of Pozniak and Harper, the issue under s. 10 (b) is a relatively narrow one to do with disclosure upon arrest or detention of existing and available duty counsel services.  Specifically, do persons who are detained and arrested have the right, under the information component of s. 10 (b), to be advised as a matter of routine of the existence of a service which provides free, 24-hour preliminary legal advice and can be reached by dialling a 1-800 (toll-free) telephone number?

 

I.  Facts

 

                   On June 22, 1991, at approximately 1:00 a.m., Constable Pray arrested the appellant for impaired driving after he failed the roadside ALERT test.  The constable read the appellant his rights under the Charter  from a pre-printed caution card.  Specifically, the constable advised the appellant that:

 

You have the right to retain and instruct counsel without delay.

 

You have the right to telephone any lawyer that you wish.

 

You also have the right to free advice from a Legal Aid lawyer.

 

If you are charged with an offence, you may apply to the Ontario Legal Aid Plan for legal assistance.

 

Constable Pray then asked the appellant if he understood, and the appellant responded affirmatively.  Constable Pray did not make any reference to the specific availability of immediate, preliminary legal advice by duty counsel, or to the existence of the 24-hour, toll-free legal aid number which was printed on his caution card. Further, Constable Pray did not ask the appellant if he wanted to call a lawyer "now",  a question printed on his caution card, because there was no telephone at the roadside.  Constable Pray then gave the appellant the standard secondary caution regarding admissions and read him the breath sample demand.  At this point, the appellant stated that he had five or six beers after baseball that evening.

 

                   Upon arrival at the police station, Constable Pray again asked the appellant if he wished to call a lawyer, making it clear that he could do so "now".  The appellant said no, and was turned over to breathalyser technician, Constable Hildebrandt.  Constable Hildebrandt also asked the appellant if he wanted to call a lawyer (again, no mention was made of the 1-800 number or of the availability of immediate, preliminary legal advice by duty counsel).  The appellant declined to call a lawyer, and then agreed to take the two breathalyser tests, both of which he failed by a significant margin.  The appellant was charged with having care or control of a motor vehicle while his blood alcohol level was in excess of 80 mg of alcohol in 100 ml of blood, contrary to s. 253 (b) of the Criminal Code, R.S.C., 1985, c. C-46 .

 

                   The appellant testified that he thought that the caution he received from Constable Pray meant that he could contact a lawyer "when one would be available like maybe Monday morning call one" (the arrest was on a Friday night).  He explained that he had refused to call counsel because he did not know whom to call, and was at a loss as to whom he could get a hold of.  The appellant further testified that he indicated to Constable Hildebrandt that he wanted to call a lawyer, but that he did not know whom he could call.  In response to Constable Hildebrandt's question "Why?",  the appellant indicated that he had said "well I can't think of anybody to call, it's too late."  He said that Constable Hildebrandt had no response to that comment, and that there was no indication that Constable Hildebrandt had heard him.  Constable Hildebrandt, on the other hand, testified that the appellant simply said "no" when asked whether he wanted to call a lawyer.  The appellant testified that he had played baseball on the night in question and afterward had had some beers.  He admitted at trial that he probably should not have been on the road that evening.

 

                   On December 6, 1991, the appellant was convicted by Perozak Prov. Div. J. of the Ontario Court, Provincial Division.  On September 14, 1992, Cavarzan J. of the Ontario Court, General Division, allowed the appellant's appeal and quashed the conviction, concluding that the appellant's rights under s. 10 (b) of the Charter  had been infringed and that the evidence of the breathalyser technician ought to be excluded.  On May 28, 1993, the Court of Appeal for Ontario allowed the respondent's appeal and restored the appellant's conviction.

 

II.  Judgments Below

 

Ontario Court (Provincial Division)  (Perozak Prov. Div. J.)

 

                   Perozak Prov. Div. J. considered the decision of the Supreme Court of Canada in R. v. Brydges, [1990] 1 S.C.R. 190. He found that it did not apply in the circumstances because the appellant understood and stated that he did not want a lawyer, "and then with the benefit later of hindsight", stated that "well if I knew I could have used one, I would call one."  Perozak Prov. Div. J. concluded that this was not consistent with the evidence of Constable Hildebrandt, who had said the appellant had simply answered "no" when asked whether he wanted to contact a lawyer.  Perozak Prov. Div. J. then concluded:

 

I too would find in the circumstances that it's when an accused expresses a concern of his inability to afford a lawyer that you have to bring yourself within that area as far as the accused is concerned to require on the Police a further duty as far as explaining the Legal Aid workings and the availability.  I respectfully disagree ... in extending those requirements to the actual 1-800 number and the presence of twenty-four hour service.  I think that takes it too far.

 

In the result, this Court would find there has been no infringement of the [appellant's] rights and the application of counsel [for exclusion of evidence] is denied.

 

 

Ontario Court (General Division) (1992), 41 M.V.R. (2d) 266 (Cavarzan J.)

 

                   Cavarzan J. reviewed the Brydges, supra, decision and held at p. 270 that there "is in place in Ontario a 24-hour duty counsel service through a 1-800 number known to the police, which should routinely be made available to accused persons on arrest or detention, as part of the standard s. 10 (b) caution".  He concluded at pp. 273-74 that:

 

                   The caution card from which P.C. Pray read [the appellant] his rights contained the 1-800 number.  That information ought to have been given to [the appellant] upon his arrest and certainly at the Dundas police station where he would have had ready access to a telephone.

 

He added that he did not believe that the content of the exchange between the appellant and Constable Hildebrandt was relevant.  Instead, he stated at p. 274:

 

The determining fact for the purpose of deciding whether or not [the appellant's] s. 10 (b) rights were breached is that neither P.C. Pray nor P.C. Hildebrandt in their dealings with [the appellant] complied with the information component of Charter s. 10 (b).

 

                   As to remedy, Cavarzan J. held that the admission of the breathalyser evidence would bring the administration of justice into disrepute.  He found at p. 274 that the evidence was "conscripted or self-incriminatory evidence, the admission of which rendered the trial unfair".  He then concluded at p. 274 that:

 

It was a serious error not to inform [the appellant] of the availability of 24-hour duty counsel advice.  I have no doubt that the police officers acted in good faith and in the belief that they were complying with the substance of the obligations imposed by the Brydges decision.  In my view, the understanding of Brydges upon which they acted was incorrect.  Furthermore, they had the 1-800 number in their possession (P.C. Pray) or readily available (P.C. Hildebrandt) and they withheld that information from [the appellant].  Finally, failure to fully inform [the appellant] of his rights under Charter s. 10 (b) is a serious Charter  violation.

 

 

Court of Appeal (1993), 81 C.C.C. (3d) 353 (Grange, Finlayson, McKinlay JJ.A.)

 

                   The Court of Appeal for Ontario heard six appeals together, among them this case and Pozniak, in which judgment is released concurrently.  In all six cases, it was argued that the statement by police of Ontario's new s. 10 (b) caution introduced in the wake of Brydges did not comply with the informational requirements laid down in Brydges.

 

(a)  General Principles

 

                   The court noted at p. 356 that in considering the information component of s. 10 (b) of the Charter , the Supreme Court of Canada in Brydges decreed that the caution that must be given on arresting or detaining should contain a reference to the existence and availability "of applicable systems of duty counsel and Legal Aid in the jurisdiction".  It noted that, following this decision, a new and further caution was devised and put into use in Ontario and that there was a 24-hour, 1-800 (toll-free) telephone line to duty counsel, known at all police stations, by which immediate and free advice can be obtained from qualified duty counsel.

 

                   The court did not agree that the information given to the detainee must of necessity include a reference to the toll-free number and immediate and free access to legal advice.  It referred to R. v. Anderson (1984), 10 C.C.C. (3d) 417 (Ont. C.A.), and noted, at p. 357, that "it is only when there is something in the circumstances that indicates the accused did not fully understand his rights that further information must be imparted."  The court, at p. 358, then referred to the test set out in R. v. Parks (1988), 33 C.R.R. 1 (Ont. C.A.), which quoted Lamer J. (as he then was) in Brydges: "in circumstances where an accused expresses a concern that the right to counsel depends upon the ability to afford a lawyer, it is incumbent on the police to inform him of the existence and availability of Legal Aid and duty counsel."  The court concluded at p. 358:

 

                   This, in our view, is the true test.  In our view, also, the caution presented in all the cases at bar made it clear that legal aid was available for advice and might be available for defence if a charge were laid.  Where there is nothing in the evidence to indicate either the detainee misunderstood his right to immediate free legal aid or required further information on those rights, we can see no need for further information to be proffered.

 

                   The court relied on R. v. Strachan, [1988] 2 S.C.R. 980, for the proposition that routine exclusion of evidence necessary to substantiate charges may itself bring the administration of justice into disrepute.  It concluded that, if it were wrong and there had been a breach of s. 10 (b) rights, then the evidence should not be excluded under s. 24(2)  because the police in the cases before it were trying to follow the procedure established for the purpose of complying with Brydges.

 

(b)  Application to Bartle

 

                   The court agreed with Perozak Prov. Div. J.'s interpretation of Brydges and disagreed with Cavarzan J.'s proposition that the accused must, as a matter of routine, be advised of the availability of counsel over the 1-800 number.  The court concluded at p. 369:

 

We do not think the dicta of Lamer C.J.C. in Brydges makes that mandatory unless of course the accused, having been informed of the right, expresses some concern of affordability or timeliness.  We think the conflict between the [appellant] and Constable Hildebrandt was indeed relevant and was resolved by the trial judge in favour of Hildebrandt.  We can find no breach of s. 10 (b).

 

III.  Points in Issue

 

                   The issues in this case are two-fold:

 

1.Does the information component of s. 10 (b) of the Charter  require that police routinely refer to the existence and availability of a 24-hour duty counsel service which provides free, preliminary legal advice and can be reached by dialling a 1-800 (toll-free) telephone number?

 

2.If the answer is yes and if the appellant's rights under s. 10 (b) of the Charter  have, in the circumstances of this case, been violated, should the evidence obtained in the course of this infringement be excluded under s. 24(2)  of the Charter ?

 

IV.  Analysis

 

                   Section 10 (b) of the Charter  provides that:

 

10.  Everyone has the right on arrest or detention

 

                                                                   . . .

 

(b) to retain and instruct counsel without delay and to be informed of that right;...

 

It is now well accepted that under s. 10(b) a person who is arrested or detained (the "detainee") must be promptly informed of his or her right to retain counsel without delay.  Because s. 10(b) has already been extensively considered by this Court, I propose to simply summarize some of the basic principles which have been developed with respect to the right to counsel under the Charter .  This will provide the necessary framework in which to approach the disclosure-related issue raised by this case, Pozniak and Harper.

 

(a)  The Purpose of Section 10(b)

 

                   The purpose of the right to counsel guaranteed by s. 10 (b) of the Charter  is to provide detainees with an opportunity to be informed of their rights and obligations under the law and, most importantly, to obtain advice on how to exercise those rights and fulfil those obligations:  R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1242-43.  This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state.  Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him- or herself.  Accordingly, a person who is "detained" within the meaning of s. 10  of the Charter  is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty:  Brydges, at p. 206; R. v. Hebert, [1990] 2 S.C.R. 151, at pp. 176-77; and Prosper.  Under s. 10(b), a detainee is entitled as of right to seek such legal advice "without delay" and upon request.  As this Court suggested in Clarkson v. The Queen, [1986] 1 S.C.R. 383, at p. 394, the right to counsel protected by s. 10 (b) is designed to ensure that persons who are arrested or detained are treated fairly in the criminal process.

 

(b)  The Duties Under Section 10(b)

 

                   This Court has said on numerous previous occasions that s. 10 (b) of the Charter  imposes the following duties on state authorities who arrest or detain a person:

 

(1)  to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;

 

(2)  if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and

 

(3)  to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

 

(See, for example, Manninen, at pp. 1241-42; R. v. Evans, [1991] 1 S.C.R. 869, at p. 890; and Brydges, at pp. 203-4.)  The first duty is an informational one which is directly in issue here.  The second and third duties are more in the nature of implementation duties and are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel.

 

                   Importantly, the right to counsel under s. 10 (b) is not absolute. Unless a detainee invokes the right and is reasonably diligent in exercising it, the correlative duty on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended: R. v. Tremblay, [1987] 2 S.C.R. 435, at p. 439, and R. v. Black, [1989] 2 S.C.R. 138, at pp. 154-55.   Furthermore, the rights guaranteed by s. 10 (b) may be waived by the detainee, although the standard for waiver will be high, especially in circumstances where the alleged waiver has been implicit:  Clarkson, at pp. 394-96; Manninen, at p. 1244; Black, at pp. 156-57; Brydges, at p. 204; and Evans, at pp. 893-94.

 

                   Under these circumstances, it is critical that the information component of the right to counsel be comprehensive in scope and that it be presented by police authorities in a "timely and comprehensible" manner:  R. v. Dubois, [1990] R.J.Q. 681 (C.A.), (1990), 54 C.C.C. (3d) 166, at pp. 697 and 196 respectively.  Unless they are clearly and fully informed of their rights at the outset, detainees cannot be expected to make informed choices and decisions about whether or not to contact counsel and, in turn, whether to exercise other rights, such as their right to silence:  Hebert.  Moreover, in light of the rule that, absent special circumstances indicating that a detainee may not understand the s. 10 (b) caution, such as language difficulties or a known or obvious mental disability, police are not required to assure themselves that a detainee fully understands the s. 10 (b) caution, it is important that the standard caution given to detainees be as instructive and clear as possible:  R. v. Baig, [1987] 2 S.C.R. 537, at p. 540, and Evans, at p. 891.

 

                   Indeed, the pivotal function of the initial information component under s. 10 (b) has already been recognized by this Court.  For instance, in Evans, McLachlin J., for the majority, stated at p. 891 that a "person who does not understand his or her right cannot be expected to assert it".  In that case, it was held that, in circumstances which suggest that a particular detainee may not understand the information being communicated to him or her by state authorities, a mere recitation of the right to counsel will not suffice.  Authorities will have to take additional steps to ensure that the detainee comprehends his or her s. 10 (b) rights.  Likewise, this Court has stressed on previous occasions that, before an accused can be said to have waived his or her right to counsel, he or she must be possessed of sufficient information to allow him or her to make an informed choice as regards exercising the right:  R. v. Smith (Norman MacPherson), [1991] 1 S.C.R. 714, at pp. 724-29, and Brydges, at p. 205.

 

                   To conclude, because the purpose of the right to counsel under s. 10 (b) is about providing detainees with meaningful choices, it follows that a detainee should be fully advised of available services before being expected to assert that right, particularly given that subsequent duties on the state are not triggered unless and until a detainee expresses a desire to contact counsel.  In my opinion, the purpose of the right to counsel would be defeated if police were only required to advise detainees of the existence and availability of Legal Aid and duty counsel after some triggering assertion of the right by the detainee.  Accordingly, I am unable to agree with the trial judge and the Court of Appeal below that information about duty counsel and how to access it need only be provided to detainees when they express some concern about affordability or availability of counsel.  Indeed, in putting forward such a position, I can only conclude with respect that both the trial judge and the Court of Appeal erred in their interpretation and application of Brydges.  It is, therefore, to a consideration of Brydges that I must now turn.

 

(c)  Brydges

 

                   In Brydges, the accused requested information about legal aid and expressed concerns about his inability to afford a lawyer after being informed by police authorities of his right to counsel under s. 10 (b) of the Charter .  This Court unanimously held that the failure by the police to inform the accused of the existence and availability of legal aid and duty counsel was a violation of his s. 10 (b) rights and that the evidence obtained as a result of this violation -- inculpatory statements -- should have been excluded.  This Court was satisfied that, by failing to inform the accused fully of his right to counsel in circumstances where he had raised concerns about being able to afford a lawyer and where free, preliminary legal advice was indeed available upon request, the police had improperly left the accused with an erroneous impression of the nature and extent of his s. 10 (b) rights.

 

                   However, a majority of this Court went further, holding that, besides telling detainees of their general right to retain and instruct counsel without delay, in all cases police must advise detainees of the existence and availability of legal aid and duty counsel.  For the majority, I stated at p. 215 that,

 

... the right to retain and instruct counsel, in modern Canadian society, has come to mean more than the right to retain a lawyer privately.  It now also means the right to have access to counsel free of charge where the accused meets certain financial criteria set up by the provincial Legal Aid plan, and the right to have access to immediate, although temporary, advice from duty counsel irrespective of financial status.  These considerations, therefore, lead me to the conclusion that as part of the information component of s. 10 (b) of the Charter , a detainee should be informed of the existence and availability of the applicable systems of duty counsel and Legal Aid in the jurisdiction, in order to give the detainee a full understanding of the right to retain and instruct counsel.  [Emphasis added]

 

Accordingly, Brydges had the effect of adding two new elements to the information component of s. 10 (b):

 

(1)  information about access to counsel free of charge where an accused meets prescribed financial criteria set by provincial Legal Aid plans ("Legal Aid"); and

 

(2)  information about access to immediate, although temporary legal advice irrespective of financial status ("duty counsel").

 

At the same time, Brydges made it clear that the specific nature of the information provided to detainees would necessarily be contingent on the existence and availability of Legal Aid and duty counsel in the jurisdiction:  Prosper.

 

                   In Brydges, the majority drew a careful distinction between Legal Aid plans, which provide longer term legal assistance to accused persons who meet prescribed financial qualifications, and "duty counsel", which is a form of initial, summary legal advice available to all detainees upon request, irrespective of financial means or of time of day or night.  As the majority explained at p. 213,

 

... duty counsel are intended to provide with immediate but temporary advice and assistance those persons who cannot afford a lawyer or those who do not know a lawyer.  Indeed, knowledge of the existence and availability of duty counsel is perhaps of primary importance since financial status is generally not considered as a pre-condition to obtaining the services of duty counsel.

 

Often duty counsel bridge the gap between arrest and the retention of a lawyer who will deal more fully with a case.  Although in an administrative sense, Legal Aid and duty counsel tend to be part of the same overall program run by the provinces as part of their constitutional responsibility for the administration of justice, Legal Aid and "Brydges  duty counsel" (labelled as such to distinguish it from other forms of summary legal assistance, typically plea advice to accused persons, arranging adjournments, speaking to bail and sentence, and negotiating dispositions with the Crown in the Criminal and Youth Court context (P.R.A. Reports, infra)) represent two distinct forms of legal service.

 

                   It is the interpretation and application of the additional informational requirement concerning duty counsel which was imposed on police in Brydges that is specifically in issue here, as well as in the other four cases heard at the same time as this one and for which judgment is handed down concurrently.

 

                   Imposing additional informational requirements on police authorities is justified by the need to fulfil the underlying purpose of the Charter -guaranteed right to counsel.  As the majority said in Brydges, at p. 215,

 

... the additional duty is consistent with one of the main purposes underlying the s. 10 (b) right which is to facilitate contact with counsel since it is upon arrest or detention that the accused is faced with an immediate need for legal advice especially in respect of how to exercise the right to remain silent.

 

Implicit in the majority's reasons in Brydges is a clear recognition of the centrality of the information component of s. 10 (b), which is what is provided universally to all detainees and upon which subsequent correlative duties on the state hinge.  To have said that state authorities only have to provide further information about the existence and availability of Legal Aid and duty counsel services after the triggering assertion of the right by the detainee or some positive indication by the detainee that he or she has affordability or availability concerns, would not have been true to the purpose of s. 10 (b) and would have left detainees without the substantive protection to which they are entitled under the Charter .

 

                   In addition, as the majority explained in Brydges, at pp. 211-12, while imposing additional informational requirements on our police forces might at first glance appear to be a burden on them, it serves their interests in the long run.  Having a standardized s. 10 (b) caution which clearly outlines available legal services and how they can be accessed means that the police are less often required to judge on the spot whether a detainee can afford a lawyer and/or mistakenly believes that legal assistance is unavailable.  Moreover, where duty counsel actually exists, the police will be in a better position to carry on with their work without losing time while they wait for duty counsel to come available.  The majority suggested at p. 215 that it is in the "interests of all the participants in the criminal justice system that s. 10 (b) of the Charter " (emphasis added) be interpreted so as to require that detainees be advised of the existence and availability of Legal Aid plans and duty counsel. 

 

                   To conclude, Brydges stands for the proposition that police authorities are required to inform detainees about Legal Aid and duty counsel services which are in existence and available in the jurisdiction at the time of detention.  In case there is any doubt, I would add here that basic information about how to access available services which provide free, preliminary legal advice should be included in the standard s. 10 (b) caution.  This need consist of no more than telling a detainee in plain language that he or she will be provided with a phone number should he or she wish to contact a lawyer right away.  Failure to provide such information is, in the absence of a valid waiver (which, as I explain infra, will be a rarity) a breach of s. 10 (b) of the Charter .  It follows, therefore, that where the informational obligations under s. 10 (b) have not been properly complied with by police, questions about whether a particular detainee exercised his or her right to counsel with reasonable diligence and/or whether he or she waived his or her facilitation rights do not properly arise for consideration.  Such questions are simply not relevant under s. 10 (b) (although they may be when it comes to considering whether the evidence obtained in the course of the Charter  violation should be excluded under s. 24(2)  of the Charter ).  The breach of s. 10 (b) is complete, except in cases of waiver or urgency, upon a failure by state authorities to properly inform a detainee of his or her right to counsel and until such time as that failure is corrected.

 

(d)  The Aftermath of Brydges

 

                   Brydges imposed a 30-day transition period so as to allow police forces across the country to give effect to the new s. 10 (b) warnings mandated by this Court's ruling.  According to a comprehensive study of duty counsel systems in Canada commissioned and financed by the federal Department of Justice, Brydges has had at least two effects:  Prairie Research Associates. Duty Counsel Systems:  Summary Report (April 1993) and Prairie Research Associates. Duty Counsel Systems:  Technical Report (April 1993) (the "P.R.A. Reports").  First, Brydges has served as the impetus for adding more specific wording to the Charter  cautions routinely recited to all detainees.  Second, Brydges has encouraged many provinces to comply with the spirit of Brydges by ensuring that free, preliminary legal advice is made available to detainees upon request, notwithstanding the absence of any additional funding by the federal government under shared-cost agreements for Legal Aid.  In the P.R.A. Technical Report, for example, it is observed at p. 3-4 that:

 

[t]he Brydges case prompted the creation of systems of "Brydges duty counsel" where lawyers provide telephone consultation.  Some police departments maintain lists of such duty counsel lawyers and in some provinces (e.g., Ontario, Saskatchewan and British Columbia) a toll free (1-800) telephone number is used.

 

Unfortunately, not every provincial government and bar has responded as positively to Brydges as might be desired.  The P.R.A. Reports make it clear, as do the accompanying cases of Prosper and Matheson, that there is no system of "Brydges  duty counsel" in Nova Scotia and Prince Edward Island.

 

                   On the other hand, in Ontario, the province from which this case and the related case of Pozniak arise, Brydges has had a definite impact.  In "Police Implementation of Supreme Court of Canada Charter  Decisions: An Empirical Study" (1992), 30 Osgoode Hall L.J. 547, Kathryn Moore explains at pp. 564-67 that, prior to the release of Brydges in February 1990, the Ontario Legal Aid Plan had established a 1-800 number in the Metropolitan Toronto area, giving persons detained at police stations in the greater Toronto area access to duty counsel 24-hours a day.  In the aftermath of Brydges, this system was expanded to areas outside of Metropolitan Toronto.  The author describes in some detail the process by which police cautions in Ontario were revised to comply with Brydges.

 

                   One of the clauses which was added to the standard caution in Ontario and which received the most publicity was:  "You also have the right to free advice from a Legal Aid lawyer."  In addition, the 24-hour, 1-800 Legal Aid number for duty counsel was printed on all police caution cards.  Initially, however, it appears that police in Ontario were not providing, as a matter of routine, detainees with the 1-800 number printed on their caution cards.  This is clear not only from the case at bar and from its companion case, Pozniak, but also from the set of six cases (which include this case and Pozniak) which were heard at the same time by the Ontario Court of Appeal, as well as from several lower court decisions in Ontario.  According to Moore, supra, at p. 566, in June 1992 after two lower court decisions were released in which it was held that the caution developed in Ontario in response to Brydges was inadequate because it did not clearly convey to detainees that legal aid was free and could be accessed immediately, Ontario's Solicitor General advised provincial police forces to change the standard caution to include the 1-800 Legal Aid number already printed on their caution cards.  This was corroborated by counsel for the respondent Crown in this case and that of Pozniak.

 

                   It also appears that the more fully people are advised of their rights under s. 10 (b), the more likely they are to exercise these rights.  According to the P.R.A. Summary Report, at p. 35:

 

[Brydges] has prompted an increase in the demand for duty counsel because of the police requirement to inform all accused of their right to counsel.  Whether telephone consultation, evening or weekend service, Brydges has led to more accused requesting services immediately after arrest.  Twenty-four hour lines which were set up prior to Brydges had significant increases in calls following the ruling.

 

This is confirmed by Moore as well, who cites statistics at p. 565 obtained from the Deputy Director of Ontario's Legal Aid Plan showing that, prior to Brydges and the implementation of the province-wide duty counsel number, the 1-800 number in Toronto received an average of 300 calls per month.  After the release of Brydges, the Toronto number apparently averaged 550 to 600 calls per month, while outside of Toronto, the 1-800 number averaged 700 to 800 calls per month.

 

(e)  Summary of Section 10 (b) Principles

 

                   A detainee is entitled under the information component of s. 10 (b) of the Charter  to be advised of whatever system for free, preliminary legal advice exists in the jurisdiction and of how such advice can be accessed (e.g., by calling a 1-800 number, or being provided with a list of telephone numbers for lawyers acting as duty counsel).  What remains to be decided, then, is whether the caution given to the appellant by the police in this case complied with the informational requirements under s. 10 (b), or whether the appellant waived his informational s. 10 (b) rights.  It is to this question that I now turn.

 

(f)  Application

 

                   At the time when the appellant was arrested and detained, there was in place in Ontario a 24-hour duty counsel service accessible by dialling a toll-free number.  This service was known to the police and, indeed, the 1-800 number was printed on their caution cards.  Section 10 (b) required that the existence and availability of this duty counsel system and how to access it be routinely communicated by police in a timely and comprehensible manner to detainees.  In reviewing what was said to the appellant, both at the roadside where he was arrested and later, at the police station, I am of the opinion that the appellant was not properly informed of his rights under s. 10 (b).  As a result, he may have been misled about the nature and extent of his right to counsel, particularly given that he was detained during the early hours of a Saturday, a time when a person might reasonably expect that immediate legal assistance would not be available.

 

                   On its face, the caution extended to the appellant both at the roadside and at the police station did not advise him of the existence and availability of any "duty counsel" service, nor did it provide him with the toll-free telephone number by which the service could be accessed.  However, what must be considered is whether, despite the absence of precise words to this effect, the essence of the appellant's right to immediate and temporary free legal advice was adequately communicated to him, or, alternatively, whether the appellant fully understood his rights and waived the right to be expressly informed of them by the authorities.

 

                   In my opinion, the s. 10 (b) caution that the appellant received, both at the roadside and at the police station, failed to convey the necessary sense of immediacy and universal availability of legal assistance.  First, when the appellant was arrested at the roadside, he was not told of the existence of the 1-800 number for duty counsel and that he would be allowed to call a lawyer as soon as he arrived at the police station where there were telephones.  Although it was subsequently made clear upon arrival at the station that he could call "now",  the appellant had, in the intervening period between detention at the roadside and arrival at the station, made a self-incriminating statement.  Second, reference to Legal Aid was confusing in so far as it implied that free legal advice, while available, was contingent on applying for it once charged -- a process which takes time and for which there are qualifying financial requirements.  The caution he received failed to communicate the fact that, at the pre-charge stage, a detainee has the opportunity by virtue of the scheme for immediate legal assistance set up by Ontario to speak to duty counsel and to obtain preliminary legal advice before incriminating him- or herself.

 

                   The 1-800 number, or at least the existence of a toll-free telephone number, should have been conveyed to the appellant upon his arrest at the roadside even though there were no telephones available.  Indeed, the police should have explained to the appellant that, as soon as they reached the police station, he would be permitted to use a telephone for the purpose of calling a lawyer, including duty counsel which was available to give him immediate, free legal advice.  It can hardly be described as an undue hardship on police to require them to provide detainees with this basic information, especially when the toll-free number is already printed on their caution cards. I am satisfied that the 1-800 number was part of the informational requirement under s. 10 (b) of the Charter .  I agree with counsel for the appellant that, in today's highly technological and computerized world, 1-800 numbers are simple and effective means of conveying the sense of immediacy and universal availability of legal assistance which the majority of this Court in Brydges said must be conveyed as part of the standard s. 10 (b) warning in jurisdictions where such a service exists.

 

                   Furthermore, the appellant did not waive his right to receive a caution that fully informed him of his right to counsel. Although detainees can waive their s. 10 (b) rights, valid waivers of the informational component of s. 10 (b) will, in my view, be rare. As I stated in Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41 at p. 49, the validity of a waiver of a procedural right "... is dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect..." (emphasis in original). This standard applies equally to waivers of Charter  rights, including the rights guaranteed by s. 10 (b): Evans, supra, at p. 894. In the case of s. 10 (b)'s informational component, requiring that a person waiving the right have "full knowledge" of it means that he or she must already be fully apprised of the information that he or she has the right to receive. A person who waives the right to be informed of something without knowing what it was that he or she had the right to be informed of can hardly be said to be possessed of "full knowledge" of his or her rights. For this reason, the fact that a detainee indicates that he or she does not wish to hear the information conveyed by the standard police "caution" mandated by s. 10 (b) will not, by itself, be enough to constitute a valid waiver of s. 10 (b)'s informational component.

 

                   As this Court held in Evans (at p. 892), state authorities have a duty under s. 10 (b) "to make a reasonable effort to explain to the accused his right to counsel."  In most cases, reading the accused a caution that meets the criteria I have outlined above will satisfy this duty.  If the circumstances reveal, however, that a particular detainee does not understand the standard caution, the authorities must take additional steps to ensure that the detainee comprehends the rights guaranteed by s. 10 (b), and the means by which they can be exercised: Evans, at p. 892, and Baig, at p. 540.  Conversely, situations may occasionally arise in which the authorities' duty to make a reasonable effort to inform the detainee of his or her s. 10 (b) rights will be satisfied even if certain elements of the standard caution are omitted.  In my view, however, this will only be the case if the detainee explicitly waives his or her right to receive the standard caution (for example, by interrupting the police when they begin to read the caution and telling them that they do not have to continue) and if the circumstances reveal a reasonable basis for believing that the detainee in fact knows and has adverted to his rights, and is aware of the means by which these rights can be exercised.  The fact that a detainee merely indicates that he knows his rights will not, by itself, provide a reasonable basis for believing that the detainee in fact understands their full extent or the means by which they can be implemented.  For example, a detainee who states that she knows that she has the right to consult with counsel and who purports to waive her right to be informed of it, might in fact be unaware both that she has the right to do so without delay, or that "Brydges duty counsel" service is available to her.  In such a case, the state authorities have an obligation to take reasonable steps to assure themselves that the detainee is aware of all of the information he or she has the right to receive (that is, the information contained in a constitutionally valid standard caution).  In most cases, of course, the simplest way in which the authorities can discharge this duty will be simply to read the standard caution.

 

                   In some circumstances, however, there may be a reasonable basis for believing that a detainee who waives the informational component of s. 10 (b) is, in fact, cognizant of some, or all, of the information contained in the standard caution.  In this case, omitting this information from the standard caution may not result in a violation of s. 10 (b).  For example, consider the case of a detainee who is initially charged with one offence, who consults with counsel before being charged with an additional offence.  As this Court held in Black, supra, a change in the nature of the detention of this sort will cause the state authorities' obligation to inform the detainee of his or her s. 10 (b) rights to be triggered anew.  Although it would thus be necessary, in this example, for the police to once again inform the detainee that he or she had the right to consult with counsel without delay, it might not be necessary for them to remind the detainee about the existence of duty counsel.  If, for instance, the detainee had spoken to duty counsel a few hours earlier, it might be reasonable to assume that he or she remembers that duty counsel service was available.  In this case, a waiver by the detainee of this component of his or her informational rights might be valid.

 

                   It must be emphasised, however, that the standard for waiver of the informational right will, as explained above, be high.  In my view, any lesser standard than the one indicated would not accord with the purposive approach to s. 10 (b) that this court has consistently endorsed (see Brydges, at p. 215; Black, at p. 152; and Clarkson, at p. 394).  As I noted earlier, this Court has recognized the pivotal function the informational component of s. 10 (b) plays.  In light of the component's importance in ensuring that the purposes of s. 10 (b) are fully realized, the validity of waivers of the informational component should only be recognized in cases where it is clear that the detainee already fully understands his or her s. 10 (b) rights, fully understands the means by which they can be exercised, and adverts to those rights.  Requiring that these conditions be met ensures that any subsequent waiver of the right to counsel made following a waiver of the informational component will be a fully informed one.  Since the informational obligations s. 10 (b) imposes on state authorities are not onerous, it is not unreasonable, in my view, to insist that these authorities resolve any uncertainty that might exist regarding the detainees knowledge of his or her rights, something they can do by simply reading the standard caution, as they are required to do in cases where the detainee does not clearly and unequivocally indicate the desire to waive the informational component.

 

                   On the facts of this case, there is no evidence that the appellant expressed any interest in waiving any of his informational rights, including his right to be informed of the existence of Brydges duty counsel services.  Although it is not, therefore, necessary to consider whether the appellant was, in fact, aware of the existence of duty counsel, I note in passing that there the evidence on the record does not reasonably support the inference that he knew that such services were available.  I conclude, therefore, that the appellant did not waive his s. 10 (b) informational rights, and that the authorities' failure to properly inform him of the availability of duty counsel resulted in a s. 10 (b) violation. 

 

                   Since I have concluded that the appellant should have been advised from the outset of the existence and availability of duty counsel and of the 1-800 telephone number, there is no need for me to consider under s. 10 (b) the conflicting evidence as to whether or not the appellant expressed a concern to police about being able to reach a lawyer at a late hour.  In addition, because the appellant was not properly informed of his right to counsel, his conduct cannot amount to a waiver of his facilitation rights.  The standard for waiver of a Charter  right is high.  It is a precondition of a valid waiver that a person know what he or she is waiving.  In this case, because the appellant did not know that he had access to free and immediate, preliminary legal advice over the telephone, he was not in a position to give an effective waiver.  However, there may be situations where a detainee is so clear about not wanting to speak to any lawyer that, notwithstanding imperfect compliance by police with the informational requirements under s. 10 (b), the detainee's conduct will be a factor militating in favour of admission of the evidence under s. 24(2)  of the Charter .

 

                   Under the circumstances of this case where no urgency was involved and where there was no valid waiver of s. 10 (b)'s informational component, the breach of the appellant's s. 10 (b) rights was complete upon his not being advised of the existence and availability of Ontario's duty counsel service and of the toll-free number by which it could be accessed.  I find, therefore, that the appellant's rights under s. 10 (b) of the Charter  were infringed by the police. Accordingly, it is necessary to decide whether the evidence obtained as a result of this violation should be excluded under s. 24(2)  of the Charter .

 

(g)  Exclusion of Evidence

 

                   The evidence at issue here are the results of two failed breathalyser tests and the appellant's incriminating statement to the police at the roadside that he had had five to six beers that night.

 

                   Section 24(2)  of the Charter  provides as follows:

 

   24. . . .

 

   (2)  Where . . . a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

 

There are two requirements for exclusion of evidence under s. 24(2) Strachan, per Dickson C.J., at p. 1000, and R. v. Therens, [1985] 1 S.C.R. 613, per Le Dain J., at p. 648.  First, there has to have been a Charter  violation in the course of obtaining the evidence.  Second, it must be found that having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

 

                   Under the first threshold requirement, there must be some connection or relationship between the infringement of the right or freedom in question and the obtaining of the evidence which is sought to be excluded.  However, a strict causal link between the Charter  infringement and the discovery of the evidence is not required:  Therens, per Le Dain J. at p. 649; Strachan, per Dickson C.J. at pp. 1000-1006, and Lamer J. (as he then was) at p. 1009; and Brydges at p. 210.  Generally speaking, so long as it is not too remotely connected with the violation, all the evidence obtained as part of the "chain of events" involving the Charter  breach will fall within the scope of s. 24(2) Strachan, per Dickson C.J. at p. 1006, and Lamer J. at p. 1009.  This means that in the initial inquiry under s. 24(2)  as to whether evidence has been "obtained in a manner that infringed or denied" Charter  rights, courts should take a generous approach.  However, it should be borne in mind that the presence and strength of the causal connection between the evidence and the Charter  breach may be a factor for consideration under the second, more important, branch of s. 24(2) Strachan, per Dickson C.J., at p. 1006; and R. v. I. (L.R.) and T. (E.), [1993] 4. S.C.R. 504, per Sopinka J., at p. 530.

 

                   In the case at bar, I am satisfied that the breathalyser evidence as well as the self-incriminating statement were obtained in the context of the infringement of the appellant's right to counsel under s. 10 (b) and, therefore, that they pass the first hurdle under s. 24(2) .

 

                   The analysis must then proceed to the second stage of inquiry under s. 24(2) , where it must be determined whether, in all of the circumstances, admission of the evidence would tend to bring the administration of justice into disrepute.  In order to make this determination, a court must balance factors relating to the effect of admission on the fairness of the trial, the seriousness of the breach, and the effect of exclusion on the repute of the administration of justice:  R. v. Collins, [1987] 1 S.C.R. 265, at pp. 284-86.  The overall burden of persuasion under s. 24(2)  rests on the party seeking exclusion of the evidence:  Collins, at p. 280; R. v. Simmons, [1988] 2 S.C.R. 495, per Dickson C.J. at p. 532; and R. v. Duarte, [1990] 1 S.C.R. 30, at p. 59.  That is, it is the applicant for exclusion under s. 24(2)  who must ultimately satisfy the court on a balance of probabilities that admission of the evidence could bring the administration of justice into disrepute.

 

                   However, just because the applicant bears the ultimate burden of persuasion under s. 24(2)  does not mean that he or she will bear this burden on every issue relevant to the inquiry.  As a practical matter, the onus on any issue will tend to shift back and forth between the applicant and the Crown, depending on what the particular contested issue is, which party is seeking to rely on it and, of course, the nature of the Charter  right which has been violated.  As Sopinka, Lederman and Bryant state at p. 397 of their text, The Law of Evidence in Canada:

 

                   The applicant's burden under s. 24(2)  is quite unlike an ordinary civil burden to establish facts.  Once the Charter  violation and circumstances surrounding it are proved, the inquiry departs the realm of pure fact and becomes concerned with matters that are not susceptible of proof in the ordinary sense, such as the possible effect of admission on the fairness of the trial, the relative seriousness of the Charter  violation, and the very concept of the reputation of the administration of justice.  Furthermore, the true burden is in practice bound to drift towards the Crown, since many factors in the equation are within the peculiar knowledge of the Crown (e.g., good faith, urgency, availability of other investigative techniques); and, perhaps more important, it is the Crown that is functionally responsible for the maintenance of the administration of justice.

 

The validity of these comments is confirmed when one considers the case law.  For example, in cases involving a breach of s. 8  of the Charter  where evidence has been obtained as a result of an unreasonable search and seizure, it is clear that, unless the Crown can show that the police had reasonable and probable grounds to act as they did, such as a well founded belief at the time that an accused was in possession of drugs or that there were compelling and urgent circumstances, there is a presumption that the violation is a serious one under s. 24(2)  which must be rebutted by the Crown:  e.g.,  R. v. Greffe, [1990] 1 S.C.R. 755, per Lamer J. for the majority.

 

                   One of the issues that tends to arise in cases where there has been a breach of s. 10 (b) of the Charter  is whether the accused would have acted any differently had there been no violation of his or her right to counsel.  In the case at bar, for instance, a question that arises is whether the appellant would have actually contacted a lawyer if he had been properly advised of his right to duty counsel and of the existence of the 1-800 number.  This issue is related to the strength of the causal link that exists between the violation and the evidence obtained, a matter that was mentioned above in the context of the first branch of inquiry under s. 24(2) .  Inevitably, the causal connection issue intersects with the question of burden of proof.  That is, on whom should the risk of non-persuasion in these circumstances fall?  Framed positively, does the Crown bear the burden of proving that the accused would not have acted any differently had his or her s. 10 (b) rights been respected (so that the evidence would have been obtained in any event), or does the s. 24(2)  applicant bear the burden of proving that he or she would have exercised his or her right to counsel if the police had complied with their informational obligation?

 

                   In my view, the Crown should bear the legal burden (the burden of persuasion) of establishing, on the evidence, that the s. 24(2)  applicant would not have acted any differently had his s. 10 (b) rights been fully respected, and that, as a consequence, the evidence would have been obtained irrespective of the s. 10 (b) breach.  There are at least two reasons why the Crown should bear this burden.

 

                   First, breaches of s. 10 (b) tend to impact directly on adjudicative fairness.  Indeed, this Court has consistently said that where self-incriminatory (as opposed to real) evidence has been obtained as a result of a s. 10 (b) violation, its admission will generally have a negative affect on the fairness of the trial.  As the majority explained in Collins, at pp. 284-85:

 

 

Real evidence that was obtained in a manner that violated the Charter  will rarely operate unfairly for that reason alone.  The real evidence existed irrespective of the violation of the Charter  and its use does not render the trial unfair.  However, the situation is very different with respect to cases where, after a violation of the Charter , the accused is conscripted against himself through a confession or other evidence emanating from him.  The use of such evidence would render the trial unfair, for it did not exist prior to the violation and it strikes at one of the fundamental tenets of a fair trial, the right against self-incrimination. Such evidence will generally arise in the context of an infringement of the right to counsel.  Our decisions in Therens, supra, and Clarkson v. The Queen, [1986] 1 S.C.R. 383, are illustrative of this.  The use of self-incriminating evidence obtained following a denial of the right to counsel will generally go to the very fairness of the trial and should generally be excluded. [Emphasis added.]

 

The reason that conscripted evidence obtained from an accused in violation of his or her right to counsel is inherently more suspect than real evidence is that its use may infringe an accused's privilege against self-incrimination, a right which might have been protected had the accused been given the opportunity to consult counsel to which he or she is entitled:  R. v. Ross, [1989] 1 S.C.R. 3; Black, at pp. 159-60; Evans, at p. 896; and R. v. Elshaw, [1991] 3 S.C.R. 24, at p. 40.

 

                   Second, in light of the many warnings by this Court about the dangers of speculating about what advice might have been given to a detainee by a lawyer had the right to counsel not been infringed (infra, pp. 215 ff.), it is only consistent that uncertainty about what an accused would have done had his or her s. 10 (b) rights not been violated be resolved in the accused's favour and that, for the purposes of considering the effect of admission of evidence on trial fairness, courts assume that the incriminating evidence would not have been obtained but for the violation.  The state bears the responsibility for the breach of the accused'snn constitutional rights.  If the state subsequently claims that there was no causal link between this breach and the obtaining of the evidence at issue, it is the state that should bear the burden of proving this assertion.

 

                   Section 24(2)  applicants thus do not bear the burden of proving that they would have consulted counsel had their s. 10 (b) rights not been infringed.  Of course, once there is positive evidence supporting the inference that an accused person would not have acted any differently had his or her s. 10 (b) rights been fully respected, a s. 24(2)  applicant who fails to provide evidence that he or she would have acted differently (a matter clearly within his or her particular knowledge) runs the risk that the evidence on the record will be sufficient for the Crown to satisfy its legal burden (the burden of persuasion).  Although at p. 423 of my reasons in R. v. Schmautz, [1990] 1 S.C.R. 398, I implied that the burden of proof on this issue rested upon the accused, upon further reflection I have decided that the approach I have adopted here is to be preferred.

 

                   A review of past decisions by this Court clearly demonstrates that exclusion of evidence, even self-incriminatory evidence, will not necessarily follow each and every breach of the right to counsel under s. 10 (b):  e.g.,  see Strachan, per Dickson C.J., at p. 1008; Tremblay; Black; Schmautz, per Lamer J., at pp. 422-23; and R. v. Mohl, [1989] 1 S.C.R. 1389.  If the party resisting admission of the evidence is unable to establish in an overall sense that its admission would bring the administration of justice into disrepute, the evidence should be admitted.

 

                   (i)  Breathalyser Evidence and the Issue of Statutory Compellability

 

                   In the case at bar, not only is the appellant's statement about having five to six beers clearly self-incriminatory, but so too are the results of the breathalyser tests.  The breath samples provided by the appellant emanated from his body and, unlike real evidence, could not have been obtained but for the appellant's participation in their construction:  Ross, at p. 16.  The conscriptive character of breathalyser evidence in the impaired driving context warrants further discussion in light of a line of argument which seeks to down play or even deny the self-incriminatory nature of breath samples.  This line of argument not only appears to be gaining acceptance amongst courts of appeal (e.g., see the Nova Scotia Court of Appeal's reasons in Prosper), but is also urged upon us by the respondent Crown in this and the related case of Pozniak.  The argument can be summarized as follows:  because the breathalyser evidence was statutorily compellable whether or not the appellant spoke to counsel, it could not have affected the fairness of the trial and, therefore, should be admitted under s. 24(2)  of the Charter 

 

                   One of the leading authorities for this approach to breathalyser evidence is R. v. Jackson (1993), 15 O.R. (3d) 709 (C.A.).  In that case, a unanimous Court of Appeal found a breach of s. 10 (b) of the Charter  because of the failure of the police in the circumstances to explain to the accused that he had a right to privacy when contacting his lawyer.  Under s. 24(2), the court acknowledged that the breath samples were not in existence at the time of the breach and could, therefore, be characterized as evidence emanating from the accused (p. 718).  However, the court did not believe that admission of such evidence would render the trial unfair.  Unlike with other types of evidence emanating from an accused person, in the case of breath samples there is a legal obligation to provide them under s. 254(3)(a) of the Code, provided the requirements of that subsection are met.  Indeed, it constitutes an offence under s. 254(5) of the Code to fail or refuse to provide a sample without a reasonable excuse.  The Court in Jackson, supra, noted that the evidence on the voir dire established reasonable and probable grounds for the police having made the breath sample demand.  It found on the facts that there was no evidence to indicate a reasonable excuse which would justify the accused failing or refusing to provide a sample, no matter what advice he received from counsel.  Writing for the Court, Goodman J.A. concluded at p. 719:

 

                   It seems to me that the admission of evidence of the results of a breathalyser test taken after a breach of s. 10 (b), which test the accused would have been lawfully required to take in the circumstances of the particular case, cannot be said to operate unfairly in the conduct of the trial.

 

                   With respect, I am unable to agree that breathalyser evidence should be treated in this manner.  It is true that under the Code there are a unique set of offences relating to impaired driving which limit the options available to a person who is the subject of a breathalyser demand.  That is, the person can either "blow" as requested and risk failing the breathalyser test and being charged with the "over 80" offence under s. 253(b) of the Code, or the person can refuse and be charged with the offence of "refusal to blow" pursuant to s. 254(5) of the Code.  As this Court said in Therens, per Le Dain J., at p. 643, it rings false to suggest that, under such circumstances, a detainee is "free" to choose not to blow: 

 

                   A refusal to comply with a s. 235(1) [now 254(3)] demand without reasonable excuse is, under s. 235(2) [now 254(5)], a criminal offence.  It is not realistic to speak of a person who is liable to arrest and prosecution for refusal to comply with a demand which a peace officer is empowered by statute to make as being free to refuse to comply.  The criminal liability for refusal to comply constitutes effective compulsion. [Emphasis added.]

 

It is for this reason that breathalyser evidence is often characterized as "statutorily compellable".

 

                   What is singular about the refusal offence in the impaired driving context is that it punishes a person who refuses to incriminate him- or herself. In this respect, it should be noted that the constitutionality of s. 254(5) of the Code has not been raised here.  If one considers, for example, a person charged with murder, it is clear that that person cannot be statutorily compelled to comply with a breathalyser demand which is made in order to counter a possible defence of drunkenness.  The sole authority for making a breathalyser demand is found in s. 254(3)(a) of the Code, which says that police must believe on reasonable and probable grounds that a person is committing, or at any time within the preceding two hours has committed, as a result of the consumption of alcohol, an offence under s. 253 Section 253 , in turn, specifically relates only to the operation and care and control of a "motor vehicle, vessel, aircraft or railway equipment".

 

                   In light of the restricted options available to a detainee who has received a demand to provide breath samples under s. 254(3)(a) of the Code, it follows that the advice of a lawyer in such circumstances will be correspondingly limited.  That is, a lawyer can advise his or her client to blow (indeed, it would be improper to advise the client not to blow simply for the sake of refusing or for some oblique motive because to do so would be counselling a crime).  Alternatively, in a situation where a lawyer believes that the client may have a defence to a refusal charge under s. 254(5) , such as a lack of reasonable and probable grounds by the police to make the demand, the lawyer can advise his or her client to refuse to blow.  This is to be contrasted with our hypothetical murder case where a lawyer would very likely counsel his or her client not to risk incriminating him- or herself by providing breath samples.

 

                   Although the scope of available legal advice in the impaired driving context is necessarily limited, one must be mindful of the fact that this Court has clearly stated in the past that, where the right to counsel has been infringed, it is improper to speculate about the nature of the advice that a detainee would have received and whether the evidence would have been obtained had the right not been infringed:  Strachan, per Dickson C.J., at p. 1002; and Elshaw, at pp. 43-44.

 

                   In Elshaw, which involved charges of attempted sexual assault, Justice Iacobucci, writing for the majority, held that certain statements obtained from the accused in violation of his s. 10 (b) rights should be excluded.  In the course of his reasons, Iacobucci J. rejected the conclusion of the Court of Appeal for British Columbia that the admission of the evidence would not greatly prejudice the accused because self-incriminating evidence would probably have been obtained from him even if the police had complied with s. 10 (b) of the Charter .  In support of his position, Iacobucci J. cited Wilson J.'s statement in Black at p. 153, that "it is improper for a court to speculate about the type of legal advice which would have been given had the accused actually succeeded in contacting counsel after the charge was changed".  Iacobucci J. concluded at p. 44:

 

This reasoning applies equally well to the Court of Appeal's speculation that self-incriminating evidence would have been obtained in any event.  No one can speculate what the appellant might have said or done at the time of his detention had he been advised of his right to counsel or even of his right to remain silent.  To base admission on the ground that he might have confessed completely undermines the enshrinement of the right to counsel in the Charter .  [Emphasis in original.]

 

                   I am satisfied that there is sufficient scope for legal advice to a detainee who has received a breathalyser demand pursuant to s. 254(3)(a) of the Code to say that courts must not speculate about the nature of that advice and whether it would have made any difference to the outcome of the case.  In addition, I must respectfully disagree with the Ontario Court of Appeal which adopts an ex post facto approach to determining whether or not the defence of "no reasonable and probable grounds" was actually available to the accused on the facts.  One of the purposes of s. 10 (b) is to provide detainees with an opportunity to make informed choices about their legal rights and obligations.  This opportunity is no less significant when breathalyser charges are involved.  I am, therefore, not prepared to hold, ipso facto, either that breathalyser evidence in the impaired driving context does not qualify as self-incriminating evidence or, if it does, that its admission does not affect the fairness of a trial.

 

                   (ii)  The Impugned Evidence

 

                   Turning to the case at bar, I am satisfied that admission of the failed breathalyser results and the appellant's self-incriminatory statement about having had five to six beers would adversely affect the fairness of the trial, which is the first factor which must be considered under the Collins test.  Constable Hildebrandt, the breathalyser technician, testified that the appellant simply answered "no" when asked if he wanted to contact a lawyer.  The appellant, on the other hand, testified that he told the Constable that he wanted to call a lawyer, but did not know who to call because it was so late.  Notwithstanding that the trial judge appears to have preferred the evidence of the Constable (and I would note that, contrary to what is suggested by the Court of Appeal below, no adverse finding of credibility against the appellant was expressly made), I find that it is speculative on the facts of this case to try and draw conclusions one way or the other as to what the appellant would have done had he been properly cautioned.  In light of what I said above about the Crown's legal burden (the burden of persuasion), the uncertainty in this case must be resolved against the respondent Crown.  As a result, I must conclude that the breathalyser evidence might not have been obtained had the appellant's s. 10 (b) rights not been infringed and, therefore, that admission would adversely impact on the fairness of the trial.

 

                   As for the second set of factors to do with the seriousness of the Charter  breach, I would note that information about duty counsel and particularly the 1-800 number, which was actually printed on the caution card, were readily at hand.  However, I am not prepared to interfere with Cavarzan J.'s conclusion that the police acted in good faith and in accordance with what they believed at the time to be proper procedure.  Although this second set of factors favours the admission of the evidence in this case, this cannot cure the fact that admission would render the trial unfair.  As this Court held in Elshaw, at p. 45, the first two factors in the Collins test are alternative grounds for the exclusion, not the admission, of evidence.  Where the impugned evidence falls afoul of the "trial fairness" factor, admissibility cannot be saved by resorting to the "seriousness of the violation" factor.

 

                   With respect to the third element -- namely, whether exclusion of the evidence would bring the administration of justice into disrepute -- I would note that the appellant admitted at trial that he probably should not have been on the road on the evening in question, which is tantamount to an admission of guilt.  However, notwithstanding this and the fact that drinking and driving poses a significant risk to public safety, I am of the view that exclusion of the evidence in this case is in the long-term interests of the administration of justice.  Section 24(2) must work together with s. 10 (b) to ensure that the privilege against self-incrimination and the principle of adjudicative fairness are respected and protected in our criminal justice system.

 

                   For the foregoing reasons, I find on balance and having regard to all the circumstances that the repute of the administration of justice favours the exclusion, not the admission, of both the breathalyser evidence and the incriminatory statement.

 

(h)  Conclusion

 

                   I am satisfied that the appellant's right to counsel under s. 10 (b) of the Charter  was infringed and that, having regard to all the circumstances of this case, the impugned evidence should be excluded under s. 24(2)  of the Charter .

 

                   Accordingly, the appeal should be allowed and the conviction quashed.  As this is not an appropriate case in which to order a new trial, a verdict of acquittal should be entered.

 

                   The following are the reasons delivered by

//La Forest J.//

 

                   La Forest J. -- I have had the advantage of reading the reasons of my colleagues.  I agree with the reasons of the Chief Justice regarding the scope of the obligation on the part of the police to inform a person arrested or detained of existing and available duty counsel services.

 

                   I also agree with him that the evidence from the breathalyser test should be excluded under s. 24(2)  of the Canadian Charter of Rights and Freedoms , substantially for the reasons he gives, but with the following observations about the argument phrased in terms of the distinction between conscriptive evidence and real evidence.  That distinction is not always helpful as earlier cases have demonstrated, and the law has evolved since; see R. v. Mellenthin, [1992] 3 S.C.R. 615.  The terms are not mutually exclusive; evidence may well be both.  Here the evidence was undoubtedly conscriptive (though by virtue of statute) but I notice my colleague Justice L'Heureux-Dubé's able argument that, absent other considerations, the argument that it is real evidence is also maintainable.

 

                   A somewhat similar situation arises in relation to fingerprints which by statute may be forcibly taken from an accused (a procedure upheld as constitutionally valid in R. v. Beare, [1988] 2 S.C.R. 387).  It is difficult to believe that fingerprints validly taken contemporaneously to a breach of s. 10 (b) of the Charter  would be excluded under s. 24(2) .  I do not think this has so much to do with the fact that it is real evidence; it also is conscriptive.  Such evidence will undoubtedly continue to exist, but a more persuasive reason for admitting it is that its obtention was totally unrelated to the Charter  breach; see R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1149, per Lamer J.  The breach of s. 10 (b) in the present case deprived the accused of the possibility of making a choice about whether or not to take the test.  It is true, as the Chief Justice explains, that the range of advice available to counsel in the particular circumstances was limited, but such advice may well have changed the option exercised by the accused; it is the fact that this inability to exercise a choice was owing to the failure of the police to comply with the duty set forth by the majority of this Court in R. v. Brydges, [1990] 1 S.C.R. 190, that I find compelling.  Though I do not find the case for excluding the evidence to be by any means overwhelming, given the need to underline for the police the importance of complying with their duties in relation to the accused's right to counsel, I agree with the Chief Justice that it would better serve the repute of the administration of justice on the long term to exclude the evidence in this case.

 

                   For these reasons, I would dispose of this case in the manner proposed by the Chief Justice.

 

                   The following are the reasons delivered by

//L'Heureux-Dubé J.//

                   L'Heureux-Dubé J. (dissenting) -- This case and the four other cases heard at the same time (R. v. Pozniak, [1994] 3 S.C.R. 310; R. v. Harper, [1994] 3 S.C.R. 343; R. v. Matheson, [1994] 3 S.C.R. 328; and R. v. Prosper, [1994] 3 S.C.R. 236) and in which judgment is handed down contemporaneously with this one, raise the issue of the scope of the guarantee provided for in s. 10 (b) of the Canadian Charter of Rights and Freedoms , that is, the right of everyone on arrest or detention "to retain and instruct counsel without delay and to be informed of that right".

 

                   The jurisprudence of this Court is to the effect that s. 10 (b) of the Charter  requires the police to inform a person, upon arrest or detention, (the "detainee") of his or her right to consult counsel of choice and, should the detainee express the desire to consult a lawyer, to provide the detainee with a reasonable opportunity to do so and to refrain from questioning the detainee until he or she has had such a reasonable opportunity (absent urgent, dangerous and other special circumstances), the whole provided reasonable diligence is exercised by the detainee in attempting to consult counsel (R. v. Therens, [1985] 1 S.C.R. 613, at p. 644 (Le Dain J.); R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1241-44 (Lamer J. (now Chief Justice)); R. v. Tremblay, [1987] 2 S.C.R. 435, at pp. 438-39 (Lamer J.); R. v. Baig, [1987] 2 S.C.R. 537, at p. 540 (per curiam); R. v. Strachan, [1988] 2 S.C.R. 980, at pp. 998-99 (Dickson C.J.); R. v. Ross, [1989] 1 S.C.R. 3, at pp. 10-13 (Lamer J.); R. v. Black, [1989] 2 S.C.R. 138, at pp. 154-55 (Wilson J.); R. v. Smith (Joey Leonard), [1989] 2 S.C.R. 368, at pp. 384-85 (Lamer J.); R. v. Brydges, [1990] 1 S.C.R. 190, at pp. 203, 206 (Lamer J.); R. v. Schmautz, [1990] 1 S.C.R. 398, at pp. 413-17 (Gonthier J.); R. v. Smith (Norman MacPherson), [1991] 1 S.C.R. 714, at pp. 725-30 (McLachlin J.); R. v. Evans, [1991] 1 S.C.R. 869, at pp. 890-94 (McLachlin J.); R. v. Grant, [1991] 3 S.C.R. 139, at p. 151 (Lamer C.J.); and R. v. I. (L.R.) and T. (E.), [1993] 4 S.C.R. 504, at p. 519 (Sopinka J.)).  In addition, if the detainee expresses a concern about his or her ability to afford a lawyer, the police have an additional duty to inform him or her of the existence of Legal Aid and duty counsel services (Brydges, supra).

 

                   The above, in my opinion, is an accurate description of the scope of a detainee's s. 10 (b) rights under the Charter .  Thus, I must disagree with the Chief Justice and Justice McLachlin who impose a broader informational obligation on the police under s. 10 (b).  Specifically, while I believe that it is desirable to inform a person under arrest or detention of the availability of 24-hour duty counsel services, I do not agree with the Chief Justice and McLachlin J. that such information is constitutionally required by s. 10 (b) of the Charter .  Accordingly, I dissent for the following reasons.

 

                   Section 10 (b) of the Charter  provides that "[e]veryone has the right on arrest or detention . . . to retain and instruct counsel without delay and to be informed of that right..." (emphasis added).  It inevitably follows then, that the informational right included in s. 10 (b) is limited to information concerning the right to counsel covered by s. 10 (b).  Therefore, since s. 10 (b) does not require the provinces to establish Legal Aid or duty counsel programs, it also does not require that police officers provide detainees with information concerning such programs even in the event that they exist.

 

                   In other words, s. 10 (b) could only require the police to inform all detainees of existing duty counsel programs if such programs were  themselves mandated by s. 10 (b).  However, in Prosper, supra, both the Chief Justice and I clearly recognized that there is no constitutional requirement under s. 10 (b) of the Charter  to make such services available across the country.  Since no constitutional requirement to provide such services exists, there is no constitutional obligation on the police to inform a detainee of such programs in the event that they do exist, absent an expression of concern by the detainee regarding his or her ability to afford a lawyer.

 

                   On this basis, since the caution, information and facilitation given in this case by the police to the appellant upon his detention otherwise met the s. 10 (b) requirements discussed above, the appeal should be dismissed.

 

                   To require, as the Chief Justice and McLachlin J. do, that the police be constitutionally required to inform a detainee of Legal Aid and duty counsel programs in all cases where such programs exist, is to accept the proposition that when a government, here the province of Ontario, creates or makes available a service, or any other facility for that matter, that exceeds constitutionally mandated minimum standards, a constitutional obligation can be created.  This, in my view, is a clear invitation to provinces to refrain from going beyond what is strictly constitutionally required on the one hand, and, on the other, to discontinue practices which exceed constitutional minimum standards.  This is a strange proposition indeed and one that simply cannot be sustained either as a matter of constitutional interpretation or jurisprudence.

 

                   This brings me to a discussion of Brydges, supra, which the Chief Justice and McLachlin J. cite in support of their proposition that authorities are constitutionally required to provide information concerning 24-hour free temporary duty counsel services to every detainee where such services exist.  The ratio decidendi in Brydges, supra, however, goes no further than requiring police officers to inform a detainee of the existence and availability of free advice from Legal Aid and duty counsel when the detainee expresses a concern about his or her ability to afford a lawyer.  Lamer J.'s (as he then was) statement in Brydges with respect to the need to inform a detainee in all circumstances of any existing Legal Aid or duty counsel services was purely obiter, as La Forest J., with whom McLachlin J. and I concurred, indicated at p. 218:

 

                   I agree with Lamer J. that on the facts of this case the appeal should be allowed and the acquittal restored, but I find it unnecessary to consider the broader issues raised by my colleague in the latter part of his reasons.

 

                   Furthermore, as regards rights guaranteed by the Charter , the Constitution does not require a standard of perfection.  As the Chief Justice stated in R. v. Lippé, [1991] 2 S.C.R. 114, at p. 142, "the Constitution does not always guarantee the `ideal'".  This passage was cited with approval in R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154 (Lamer C.J., dissenting in the result); R. v. Creighton, [1993] 3 S.C.R. 3, at p. 53 (McLachlin J.); and R. v. Finlay, [1993] 3 S.C.R. 103, at p. 114 (Lamer C.J.).  By way of example, this Court has held that s. 11 (d) of the Charter , as regards judicial independence, does not guarantee the "ideal" (Valente v. The Queen, [1985] 2 S.C.R. 673, at pp. 692, 698, 706 and 711-12 (Le Dain J.); and R. v. Lippé, supra, at pp. 142-43 (Lamer C.J.)).  Starting with R. v. Lyons, [1987] 2 S.C.R. 309, onwards, it has been made clear that, while s. 7  of the Charter  requires procedural fairness, this does not entitle an accused "to the most favourable procedures that could possibly be imagined" (at p. 362, La Forest J.). (See also: R. v. Beare, [1988] 2 S.C.R. 387, at p. 412 (La Forest J.); Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, at p. 540 (La Forest J.); Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053, at p. 1077 (Iacobucci J.); R. v. L. (D.O.), [1993] 4 S.C.R. 419, at p. 454 (L'Heureux-Dubé J.); R. v. Levogiannis, [1993] 4 S.C.R. 475, at p. 492 (L'Heureux-Dubé J.); and R. v. Finta, [1994] 1 S.C.R. 701, at p. 774 (La Forest J., dissenting on other grounds)).  Applying the same test here, I once again find that while it may be desirable for the police to inform detainees of the availability and existence of free Legal Aid and duty counsel services, such information is not required by s. 10 (b) of the Charter , absent an expression of concern by the detainee over his or her ability to afford a lawyer.  To make it a constitutional requirement that police officers inform detainees of the availability of a 24-hour duty counsel service where such a service exists absent the expression of such concern would be to exact a constitutional standard of perfection not mandated by s. 10 (b) of the Charter .

 

                   This being said, even had I agreed with the Chief Justice and McLachlin J. as to the requirement under s. 10 (b) of the Charter  that police officers inform detainees of around-the-clock free duty counsel where such a service exists, as here, I would nonetheless hold that, in the case at hand, the breathalyser evidence and the appellant's statement that he had five to six beers on the night of his arrest should not be excluded under s. 24(2)  of the Charter .  Dickson C.J. commented, in R. v. Strachan, supra (at p. 1008), that "[n]ot every breach of the right to counsel will result in the exclusion of evidence".  I accept this as a proper statement of the law.  Furthermore, I agree entirely with the Court of Appeal when it says at pp. 358-59:

 

                   The facts in the appeals before us are substantially different [from those of Brydges, supra].  The obvious intent of the police officers in these cases was to afford the accused access to counsel: they followed a procedure specifically established for the purpose of complying with the decision of the Supreme Court of Canada in Brydges.  If we are incorrect, and failure of the police in these cases to provide the 1-800 number and to advise the accused of the availability of 24-hour duty counsel constitutes a breach of the accused's s. 10 (b) rights, then we are of the view that the facts in all of these cases fit precisely within the words of Dickson C.J.C. quoted above [R. v. Strachan, supra], and that exclusion rather than admission of evidence obtained in the circumstances of these cases would tend to bring the administration of justice into disrepute. [Emphasis added.]

 

                   On the basis of the test set out in R. v. Collins, [1987] 1 S.C.R. 265, the results of the two failed breathalyser tests and the appellant's incriminating statement should not be excluded under s. 24(2)  of the Charter  since, in my view, the violation, had there been one, was not a serious one and the admission of that evidence would not bring the administration of justice into disrepute and render the trial unfair.

 

                   As regards fairness of the trial, first the results of the breathalyser tests are not self-incriminating evidence in the same sense as a confession even if they are often characterized as such.  As Chipman J.A. of the Appeal Division of the Nova Scotia Supreme Court stated in R. v. Prosper (1992), 113 N.S.R. (2d) 156, at p. 166:

 

. . . while the breath sample is more correctly categorized as self-incriminating evidence than real evidence, it is to be distinguished from a confession which is truly a case of an accused being conscripted against himself and creating evidence which did not exist before and which he was not required to give.

 

The breathalyser is simply a device which records a certain state of impairment.  It is designed to replace potentially less accurate observations of police officers and to facilitate the work of police officers.  In addition, it reduces the costs associated with the presence of police officers in court.  To say that breathalyser test results are "conscripted evidence", to use the Chief Justice's words, considerably stretches that notion, in my view.  Rather, the breathalyser results are indicia of a physical condition which existed independently and which could in fact be observed by police officers and recorded by them.  Indeed, like the knife in R. v. Black, supra, the breathalyser evidence is independent from any statement of the appellant.  Police officers would have required the appellant to take the breathalyser test regardless of whether he spoke to them or to counsel as the breathalyser test is statutorily compellable under s. 254(3) (a) of the Criminal Code, R.S.C., 1985, c. C-46 .  In these circumstances, admission of the results of the two breathalyser tests would not render the trial unfair.

 

                   Second, while, as suggested by the Chief Justice, the appellant's incriminating statement that he had five to six beers that night might not per se have been made but for the breach of the Charter , I do not believe that its admission would significantly prejudice the appellant in that it presents evidence which was otherwise and independently available through the results of the two breathalyser tests (for a similar situation, see Smith (Norman MacPherson), supra, at pp. 731-32 (McLachlin J.)).  To paraphrase the Chief Justice in Collins, supra, the statement is not "essential to substantiate the charge" (p. 286).  In these circumstances, I cannot conclude that its admission would significantly prejudice the appellant.  Moreover, contrary to the Chief Justice, I would not speculate as to whether the appellant would have acted any differently had there been no violation of his right to counsel and would not comment on the onus of proof under this portion of the s. 24(2)  analysis. 

 

                   The second set of factors to be considered according to Collins, supra, in performing a s. 24(2)  analysis focus on the seriousness of the violation of the Charter .  In my opinion this second set of factors would also militate in favour of the admission of the evidence in question.  In this case, as Cavarzan J. found ((1992), 41 M.V.R. (2d) 266, at p. 274), the evidence disclosed good faith on the part of the police officers, who twice asked the appellant if he wanted to call a lawyer and who twice heard him decline the offer.  Constable Pray relied on the revised wording of the s. 10 (b) warning which had been provided to all officers following Brydges, supra, and believed that he was complying with his constitutional duties.  Therefore, as the Chief Justice himself notes, the admission of the evidence is favoured by this second set of factors.

 

                   According to R. v. Collins, supra, the final group of factors to consider concern, to use the words of my colleague La Forest J. in R. v. Colarusso, [1994] 1 R.C.S. 20, "the effect of exclusion on the reputation of the administration of justice" (at pp. 74 (emphasis added) and 77-78).  Cassandra Kirewskie ("Update: R. v. Colarusso" (1994), 4 N.J.C.L. 223, at p. 230 ), commenting on this formulation of the third branch of the Collins test, stated:

 

                   Perhaps the most curious part of the majority judgment [in R. v. Colarusso, supra] is its treatment of the third arm of the Collins test.  While the test is usually expressed as a consideration of whether the admission of the evidence would bring the administration of justice into disrepute and is normally considered from the perspective of the law and not of society at large, in Colarusso the majority reformulated the test, expressing it as an inquiry into "the effect of exclusion on the reputation of the administration of justice."  This is an important, though unexplained change.

 

I disagree.  In R. v. Collins, supra, Lamer J. (as he then was), writing for the majority, described this third branch of the test at pp. 285-86 as follows:

 

                   The final relevant group of factors consists of those that relate to the effect of excluding the evidence.  The question under s. 24(2)  is whether the system's repute will be better served by the admission or the exclusion of the evidence, and it is thus necessary to consider any disrepute that may result from the exclusion of the evidence. [Emphasis added.]

 

Consequently, La Forest J.'s formulation of this third branch of the Collins test was, in my opinion, consistent with the original formulation in Collins.

 

                   In the present case, the appellant was charged under s. 253(b) of the Code, i.e., having had the care and control of a motor vehicle while his blood alcohol level was in excess of 80 mg of alcohol in 100 ml of blood.  He was found guilty.  Offences against s. 253 (b)  are extremely serious offences and this has been consistently recognized by this Court.  In R. v. Thomsen, [1988] 1 S.C.R. 640, at pp. 654-55, Le Dain J. adopted the following statement of Finlayson J.A. in R. v. Seo (1986), 25 C.C.C. (3d) 385 (Ont. C.A.), at pp. 398-99:

 

(1)The problem of the drinking driver has been recognized by the Ministers of Justice of Canada and by experts in traffic accident research for many years.

 

(2)The problem of the drinking driver has not been controlled.  It is very serious and must be addressed by urgent measures.

 

(3)There is a direct relationship between drinking drivers and automobile accidents.

 

(4)The severity of accidents increases almost in direct ratio to the quantity of alcohol consumed.

 

(5)The highest frequency of impairment is found late in the evening and in the early morning and the degree of impairment and the severity of accidents is again almost in direct relationship to the time of day.

 

(6)The number of accidents increases dramatically at a blood level reading of 80 mg per 100 ml of blood.

 

(7)The number and severity of accidents is very pronounced at the so-called moderately impaired level of between 80 and 120 mg.

 

(8)The detection of drivers who are impaired at the moderate level of impairment through observation by trained police officers is ineffective.

 

(9)Increased penalties have not been an effective deterrent.

 

10)The most effective deterrent is the strong possibility of detection.

 

(See also: R. v. Hufsky, [1988] 1 S.C.R. 621, at pp. 635-37 (Le Dain J.)).

 

                   More recently, my colleague Cory J., in R. v. Ladouceur, [1990] 1 S.C.R. 1257, underlined the "carnage" taking place on our highways (at p. 1280) and outlined the seriousness of offences relating to operating a motor vehicle while impaired (at p. 1282):

 

                   Another facet of the proper legislative goal of safety on the highways is the reduction of impaired driving.  The studies on this subject have been well publicized over recent years.  Once again, the evidence is overwhelming in its confirmation of the relationship between serious accidents and driving under the influence of alcohol or other drugs.  In 1984 the presence of alcohol and drug use as a percentage of the total number of accidents rose from 8 percent for all accidents to 10 percent for accidents involving injuries, and even higher to 31 percent in accidents involving fatalities (Ontario Motor Vehicle Accident Facts: 1984).  This correlation became the justification for widespread campaigns aimed at educating people about impaired driving, and at organized random stop programs like R.I.D.E. in larger centres aimed at reducing the incidence of impaired driving. [Emphasis added.]

 

(See also the companion case released concurrently: R. v. Wilson, [1990] 1 S.C.R. 1291, at pp. 1296-97 (Cory J.)).

 

                   In R. v. Mellenthin, [1992] 3 S.C.R. 615, Cory J. pointed out that, at p. 622 according to Hufsky and Ladouceur, supra, random stops were justified pursuant to s. 1  of the Charter  as a means of "combatting the grave and pressing problem arising from the death and injuries occasioned by the dangerous operation of vehicles on our highways".  He then said at p. 624:

 

Check stop programs result in the arbitrary detention of motorists.  The programs are justified as a means aimed at reducing the terrible toll of death and injury so often occasioned by impaired drivers or by dangerous vehicles.  The primary aim of the program is thus to check for sobriety, licences, ownership, insurance and the mechanical fitness of cars. [Emphasis added.]

 

                   In the present case, the Chief Justice himself acknowledges "the fact that drinking and driving poses a significant risk to public safety" (p. 219).  In light of all the above, I am of the opinion that, in conjunction with the fairness of the trial and the nature of the Charter  violation, the seriousness of offences against s. 253(b) of the Code demonstrates that it is the exclusion, rather than admission of the evidence, which would tend to bring the administration of justice into disrepute.

 

                   Accordingly, I would not exclude the breathalyser evidence and the appellant's statement under s. 24(2)  of the Charter , had I found that s. 10 (b) was infringed, which I do not.

 

                   For these reasons, I would dismiss the appeal and uphold the conviction of the appellant.

 

                   The following are the reasons delivered by

 

//Gonthier J.//

 

                   Gonthier J. (dissenting) -- I share the views of the Chief Justice as to the scope of the obligation of the police regarding disclosure upon arrest or detention of existing and available duty counsel services and his conclusion that the appellant's rights under s. 10 (b) of the Canadian Charter of Rights and Freedoms  have been infringed.

 

                   However, in agreement with Justice L'Heureux-Dubé, I would not exclude the breathalyser evidence and the appellant's statement under s. 24(2)  of the Charter .

 

                   I would therefore dismiss the appeal and uphold the conviction of the appellant.

 

                   The following are the reasons delivered by

 

//McLachlin J.//

 

                   McLachlin J. -- While I agree with the analysis and disposition of this appeal by the Chief Justice, I wish to make some additional comments in light of my approach to the informational component of s. 10 (b) of the Canadian Charter of Rights and Freedoms , as set out in my reasons in R. v. Prosper, [1994] 3 S.C.R. 236, released concurrently with judgment in this appeal.

 

                   In Prosper, I state that, at a minimum, a detainee must be informed of his or her right to retain and instruct counsel immediately upon detention, and that the right to do so is conferred even on those individuals who cannot afford private counsel.  This information must be provided to all detainees, regardless of the presence or absence of duty counsel systems in the jurisdiction at the time of detention.  All detainees in Canada have equal rights under s. 10 (b), although the means by which those rights may be exercised may not exist in all jurisdictions.  Where no means exist for implementing the right to counsel under s. 10 (b), a detainee is nevertheless entitled to be told of the scope of his or her rights, after which he or she can make an informed choice about exercising the right.  In those jurisdictions where a duty counsel scheme has in fact been implemented, there is an additional duty to inform detainees of the existence and availability of duty counsel, including information about how to access such services.

 

                   In the present case, the appellant was arrested on June 22, 1991, at approximately 1:00 a.m., after he failed a roadside ALERT test.  The caution given to the appellant, which was read from a card, consisted of the following:

 

You have the right to retain and instruct counsel without delay.

 

You have the right to telephone any lawyer that you wish.

 

You also have the right to free advice from a Legal Aid lawyer.

 

If you are charged with an offence, you may apply to the Ontario Legal Aid Plan for legal assistance.

 

                   In my view, the caution given to the appellant fell short of meeting even the two minimum requirements of the informational component of s. 10 (b) as set out in Prosper.  First, the caution failed to communicate to the detainee that he had a right, at the pre-charge stage, to have an opportunity to contact counsel prior to incriminating himself.  Second, the caution did not convey to the detainee the scope of his right to counsel; that is, it did not adequately communicate to the appellant that his right to seek legal assistance immediately was guaranteed to him whether or not he could afford private legal counsel.  Moreover, as there was in fact a 24-hour duty counsel system in place at the time of the appellant's detention, the police were further obliged to inform the appellant of the existence and availability of these services, and should have provided him with the toll-free number by which he could access counsel. 

 

                   It is apparent, then, that of the three requirements of the informational component of s. 10 (b) alluded to in my reasons in Prosper none was satisfied in this case.  While I agree with the Chief Justice's conclusion that the informational component of s. 10 (b) was breached in the present case, I take the view that because the two minimum requirements were not met, the breach occurred prior to the failure by the police to provide the appellant with information about existing duty counsel services.  Once it has been established that the detainee was not properly informed of his or her right to counsel, I agree with the Chief Justice that the breach of s. 10 (b) is complete, and issues such as waiver and due diligence do not arise for consideration.

 

                   For the reasons given by the Chief Justice, I am of the opinion that the exclusion of the impugned evidence under s. 24(2)  of the Charter  is in the best interests of the administration of justice.

 

                   In the result, I would dispose of the appeal in the same manner as Lamer C.J.

 


                   Appeal allowed*, L'Heureux Dubé and Gonthier JJ. dissenting.

 

                   Solicitors for the appellant:  Gold & Fuerst, Toronto.

 

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



     * See Erratum [1994] 3 S.C.R. iv

 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.