Supreme Court Judgments

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R. v. Pozniak, [1994] 3 S.C.R. 310

 

Walter Pozniak            Appellant

 

v.

 

Her Majesty The Queen                                                                   Respondent

 

Indexed as:  R. v. Pozniak

 

File No.:  23642.

 

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 ‑‑ Impaired driving ‑‑ Arrest made outside normal working hours ‑‑ Rights read to person under arrest mentioning availability of legal aid ‑‑ Appellant not advised of toll‑free number for immediate free legal advice ‑‑ Appellant confused and not knowing whether to contact lawyer ‑‑ Breathalyser tests failed ‑‑ Whether disclosure of toll‑free number needed to be made under the information component of s. 10 (b) of the Charter  ‑‑ Whether the breathalyser evidence should be excluded under s. 24(2)   ‑‑ Canadian Charter of Rights and Freedoms, ss. 10 (b), 24(2)  ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 253 (b).

 

                   The appellant was arrested for impaired driving at about 4:00 a.m., was read the breath demand and a caution describing his right to counsel under s. 10 (b) of the Charter .  The arresting officer advised the appellant of the right to free legal advice from a legal aid lawyer, and of the right to apply for legal assistance under the provincial legal aid plan but made no mention of the 24‑hour toll‑free number printed on the caution card.  The appellant, when asked if he wanted to call a lawyer "now", replied that he wasn't sure.  He voiced his confusion as to whether he should contact his lawyer on two other occasions at the police station.  The arresting officer, however, disputed one such occurrence.  After the appellant indicated he did want to call a lawyer, he was seen to pick up a phone and then hang up without dialling.  The appellant then took two breathalyser tests, which he failed.  He testified that had he been advised of the toll‑free duty counsel number he probably would have used it.

 

                   The appellant was charged with having care or control of a motor vehicle while his blood alcohol level was above the legal limit, contrary to s. 253 (b) of the Criminal Code .  The trial judge refused to exclude the breathalyser evidence and convicted the appellant.  The Ontario Court, General Division, allowed 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 breathalyser evidence ought to have been excluded.  The Court of Appeal for Ontario allowed the respondent's appeal and restored the appellant's conviction.  The issue here was whether the information component of s. 10 (b) of the Charter  required disclosure of the existence of duty counsel service and whether the breathalyser evidence should be excluded under s. 24(2) .

 

                   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 

 

                   Section 10 (b) of the Charter  requires that a detainee be advised, under its information component, of whatever system for free and immediate, preliminary legal advice exists in the jurisdiction at the time of detention and of how such advice can be accessed (per Lamer C.J. and Sopinka, Gonthier, Cory, Iacobucci and Major JJ. (L'Heureux-Dubé J. dissenting); McLachlin J. held that this information had to be given on detention; La Forest J. reiterated his reasons in R. v. Bartle).

 

Section 24(2)  of the Charter 

 

                   Admission of the impugned evidence would bring the administration of justice into disrepute and should be excluded (per Lamer C.J. and La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ. (L'Heureux-Dubé and Gonthier JJ. dissenting)).

 

                                      _______________________________

                  

(1) Section 10 (b) of the Charter 

 

                   Per Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ.:  A detainee is entitled under the information component of s. 10 (b) of the Charter  to be advised of whatever system for free and immediate, preliminary legal advice exists in the jurisdiction at the time of detention and of how such advice can be accessed.  Because the breach of the appellant's s. 10 (b) rights was complete when the police failed to discharge their informational obligations properly under s. 10 (b), the appellant's subsequent conduct became irrelevant to the analysis under s. 10 (b).

 

                   Per La Forest J.:  The appeal should be allowed for the reasons given in R. v. Bartle, [1994] 3 S.C.R. 173.

 

                   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.:  All detainees must be told, at a minimum, that they are entitled to an opportunity to contact counsel immediately, and that their right to do so is conferred upon them even if they cannot afford private counsel.  In addition, in those jurisdictions where the state or local bar association has established some system of free and immediate, preliminary legal advice for all detainees, the authorities must also provide detainees with information about the existence and availability of these services.  Such information should include details about how to access duty counsel services.

 

                   The caution failed to convey adequately to appellant that he was entitled to contact counsel immediately, prior to providing incriminating evidence.  Moreover, the caution failed to inform him properly that the right to counsel under s. 10 (b) of the Charter  is not a right restricted to those who can afford private counsel.  As the breach of the informational component of s. 10 (b) is established upon the failure to meet these two minimum requirements, it was not strictly necessary to show that the police failed to meet the additional requirement of informing appellant of the duty counsel scheme which existed at the time of his detention.  The police were under an obligation to provide appellant with information about the existing duty counsel system and how to access it.  The breach of s. 10 (b) was complete upon the failure of the police to inform appellant properly of his right to counsel; appellant's subsequent conduct was irrelevant. 

 

                   Per L'Heureux‑Dubé J. (dissenting):  The informational component of s. 10 (b) of the Charter  does not require that a detainee be advised of whatever system for free, preliminary legal advice exists in the jurisdiction at the time of the detention and of how such advice can be accessed.  While it may be desirable to provide a detainee with such information, it is not constitutionally mandated.  In light of the above, the appellant was fully advised of his constitutional right to counsel.  Furthermore, although given every reasonable opportunity to telephone his lawyer, he chose not to do so.  Section 10 (b) of the Charter  accordingly was not breached and no remedy was available under s. 24(2) .

 

(2) Section 24(2)  of the Charter 

 

                   Per Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ.:  Admission of the evidence in this case would bring the administration of justice into disrepute.  The breath samples obtained from the appellant were in the nature of conscripted evidence and their admission would negatively impact on the fairness of the trial.  Since the evidence was unclear as to whether the appellant would have contacted duty counsel if he had been properly informed of the service and the toll‑free 24‑hour number, the Crown did not discharge its burden of proving on a balance of probabilities that the evidence would have been obtained even if appellant's rights had been respected.  It was uncertain what appellant would have done had his rights been respected and the Crown did not prove that he would not have acted otherwise.  Admission of the evidence therefore would render the trial unfair and neither the good faith of the police in this case nor the relative seriousness of the offence could override this fact.

 

                   Per McLachlin J.:  The evidence should be excluded under s. 24(2)  because its admission would bring the administration of justice into disrepute.

 

                   Per L'Heureux‑Dubé J. (dissenting):  Even if a Charter  breach had occurred, the breathalyser evidence should not have been excluded under s. 24(2) .  First, the admission of the breathalyser results would not render the trial unfair.  Breathalyser test results cannot simply be characterized as self-incriminating evidence in the same sense as confessions.  Rather, they are indicia of a physical condition which existed and could have been easily discovered by other means.  Second, the seriousness of the Charter  breach, had there been one, would also militate towards admission rather than exclusion of the evidence. There is no doubt the police acted in good faith.  Finally, the offence of operating a motor vehicle while impaired is serious and therefore, in light of the nature of the Charter  violation and its minimal incidence on the fairness of the trial, excluding the evidence would bring the administration of justice into disrepute.

 

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

 

Cases Cited

 

By Lamer C.J.

 

                   Followed:  R. v. Bartle, [1994] 3 S.C.R. 173; referred to:  R. v. Harper, [1994] 3 S.C.R. 343; R. v. Brydges, [1990] 1 S.C.R. 190.

 

By La Forest J.

 

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

 

By McLachlin J.

 

                   Followed:  R. v. Prosper, [1994] 3 S.C.R. 236; referred to:  R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Harper, [1994] 3 S.C.R. 343.

 

By L'Heureux‑Dubé J. (dissenting)

 

                   R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Prosper, [1994] 3 S.C.R. 236; R. v. Harper, [1994] 3 S.C.R. 343; R. v. Matheson, [1994] 3 S.C.R. 328; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Hufsky, [1988] 1 S.C.R. 621; R. v. Thomsen, [1988] 1 S.C.R. 640; 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. 10 (b), 24(2) .

 

Criminal Code, R.S.C., 1985, c. C‑46, s. 253 (b) [rep. & sub. c. 27 (1st Supp.), s. 36 ; rep. & sub. c. 32 (4th Supp.), s. 59 ].

 

           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, 15 C.R.R. 212, 45 M.V.R. (2d) 107, allowing an appeal from a judgment of Noble J. allowing an appeal from summary conviction by Greco Prov. Div. J.  Appeal allowed, L'Heureux‑Dubé and Gonthier JJ. dissenting.

 

           Anil K. Kapoor, 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. -- The issues raised in this appeal are essentially the same as those raised in R. v. Bartle, [1994] 3 S.C.R. 173, and R. v. Harper, [1994] 3 S.C.R. 343.  They concern disclosure of available duty counsel systems under the information component of s. 10 (b) of the Canadian Charter of Rights and Freedoms  and exclusion of evidence under s. 24(2)  of the Charter .  Because reasons for judgment in Bartle are being handed down contemporaneously with those in the present appeal and these issues are fully canvassed in Bartle, my comments here will necessarily be brief.

 

I.  Facts

 

           On September 13, 1990, at approximately 4 a.m., Sergeant Smith arrested the appellant for impaired driving and read him the breath demand.  Sergeant Smith then read the appellant his s. 10 (b) rights under the Charter .  The caution which he read was as follows:

 

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

 

Sergeant Smith then asked the appellant whether he understood and the appellant answered that he did.  Sergeant Smith cautioned the appellant about his right to silence and then advised the appellant of the charge and asked him if he wanted to call a lawyer "now".  The appellant answered, "I'm not sure.  Do you think it's necessary?"  Sergeant Smith told the appellant that the decision was his.  At no time did Sergeant Smith advise the appellant of the 24-hour, 1-800 legal aid number which was printed on his caution card.

 

           At the police station, the appellant was again asked if he wanted to call a lawyer.  He testified that he answered:  "I'm a little confused. The lawyer I know, that I normally deal with, I wouldn't know where he'd be at this time."  Sergeant Smith, however, denies that the appellant said this.  The appellant asked and was allowed to call a friend with whom he was going on a fishing trip and who was expecting him.

 

           Later, Constable Carscadden took the appellant to the sergeant's office to make a call after the appellant indicated that he wanted to call his lawyer.  The appellant was seen to pick up the telephone and then hang up without dialling.  The appellant then agreed to take two breathalyser tests which he failed.  The appellant stated that he indicated to the breathalyser technician, Constable Fortin, that he was confused as to whether he should call his lawyer or not, and that he did not know where his lawyer lived and that his lawyer was probably on holidays.  The appellant testified that if he had been told about the toll-free service he would "probably" have used it.

 

           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 .  On September 10, 1991, Greco Prov. Div. J. of the Ontario Court, Provincial Division dismissed the appellant's application for exclusion of the breathalyser evidence reading.  On February 13, 1992, Greco Prov. Div. J. convicted the appellant.  On November 4, 1992, Noble 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 breathalyser evidence ought to have been 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)  (Greco Prov. Div. J.)

 

           Greco Prov. Div. J. found that "one must come away from a hearing of the evidence with the impression, distinct impression, that [the appellant] was being afforded every reasonable opportunity to use the telephone".  He reviewed the decision of this Court in R. v. Brydges, [1990] 1 S.C.R. 190, and claimed that it did not require specific wording to be used by the police.  He stated:

 

...if the accused demonstrates to the police officer one way or another that he wants to exercise his right to call counsel, you know, standing on his head or just saying `I want to call a Legal Aid lawyer', then, by all means, the officer has a duty which is positive in nature to facilitate the calling of a Legal Aid lawyer for the accused.  But if the accused shows no interest and look, it's up to the accused to communicate with the police officer what it is that he wants to do.  The police officer is not a seer, he is not a warlock, he cannot second-guess what is going on in the mind of the accused.

 

 

           Greco Prov. Div. J. found that from the appellant's responses it could be inferred that the appellant understood that he had the right to retain and instruct his own counsel and that, if he could not afford his own counsel or for any reason did not want to call his own counsel, he could call legal aid.  He concluded that the appellant was "indecisive" regarding contacting counsel.  Greco Prov. Div. J. further noted that the appellant had indicated that he had his own lawyer "which tells very much as to whether or not he was interested at all, at all, in calling a Legal Aid lawyer".  Greco Prov. Div. J. then pointed out that, when given the opportunity, the appellant called a friend.  Furthermore, the appellant was later given the opportunity to contact his own lawyer when he asked to do so, but he changed his mind and said nothing further about calling a lawyer.  Greco Prov. Div. J. concluded:  "I can't see how his right to consult with counsel was infringed."

 

 

Ontario Court (General Division)  (Noble J.)

 

           Noble J. considered the Brydges decision, as well as the decision of Cavarzan J. in R. v. Bartle (see Bartle, released concurrently), and held that Cavarzan J.'s decision represented the law in Ontario.  He noted 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 10(b) caution".  He suggested that it was of no legal consequence whether or not the appellant expressed interest in contacting a lawyer because the information component of s. 10 (b) had not been complied with.

 

           The appropriate remedy, according to Noble J., was to refuse to admit the breathalyser evidence.  He concluded that, although the police officers acted in good faith and "their failure to provide complete access to duty counsel and to [the] Legal Aid system, by supplying the toll free number, was inadvertent", to admit the breathalyser evidence would bring the administration of justice into disrepute.

 

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

 

           The Court of Appeal for Ontario heard six appeals together, including this case and the related case of Bartle which are now before this Court.  In all six cases it was argued that Ontario's new s. 10 (b) caution introduced in the wake of Brydges did not comply with the informational requirements laid down in Brydges.  The general principles of law stated by the Court are summarized at pp. 188-90 of my reasons for judgment in Bartle and need not be repeated here.  With respect to their application to Pozniak, the Court of Appeal agreed with Greco Prov. Div. J. that the appellant showed no interest in calling legal aid and "so no need for elaboration arose" (p. 384).  It disagreed with Noble J. that it was of no legal consequence that the appellant expressed little or no interest in contacting a lawyer.  Instead, it stated at p. 384:

 

... it is of vital importance whether the accused shows some interest in immediate legal assistance.  If he does, the police must facilitate such contact.  If he did not, as here, no such obligation (other than the initial caution) is imposed on the police.

 

 

III.  Analysis

 

(a)  Section 10 (b)

 

           As I state in Bartle, a detainee is entitled under the information component of s. 10 (b) of the Charter  to be advised of whatever system for free and immediate, preliminary legal advice exists in the jurisdiction at the time of detention and of how such advice can be accessed.  I am satisfied in this case that the appellant suffered an infringement of his s. 10 (b) rights.  At the time of his arrest, Ontario had a 24-hour duty counsel system in place which could be reached by dialling a toll-free number.  However, in cautioning the appellant, the police neglected to provide him with this information.  Furthermore, the appellant did not waive his right to receive this information: see Bartle at pp. 203-7.  Because the breach of the appellant's s. 10 (b) rights was thus complete when the police failed to discharge their informational obligations properly under s. 10 (b), the appellant's subsequent conduct is not relevant to the analysis under s. 10 (b).

 

(b)  Section 24(2) 

 

           As with Bartle, I am satisfied that admission of the evidence in this case would bring the administration of justice into disrepute.

 

           With respect to adjudicative fairness, I find that the breath samples obtained from the appellant were in the nature of conscripted evidence and that their admission would negatively impact on the fairness of the trial.  I further find that it is unclear from the evidence whether the appellant would have contacted duty counsel if he had been properly informed of its existence and of the 1-800 number by which it could be accessed.  Therefore, as I explained in Bartle at pp. 209-13, I must conclude that the Crown has not discharged its burden of proving, on a balance of probabilities, that the evidence would have been obtained even if the appellant's s. 10 (b) rights had been fully respected.

 

           The trial judge based his finding that s. 10 (b) had not been infringed on the fact that the accused had not specifically indicated an interest in consulting duty counsel.  As a result, he did not turn his mind to the question of whether the breathalyser evidence should be excluded under s. 24(2) .  As I have explained, the trial judge (who, of course, did not have the benefit of the judgment of this Court now being rendered) was in error in this regard.  When considering whether the accused would not have behaved any differently if his s. 10 (b) rights had not been violated, however, it is unnecessary for this Court to second-guess any findings of the trial judge regarding the weight that should be attached to particular items of the evidence before him.  I am satisfied that the evidence on the record, even when viewed in the light most favourable to the Crown, does not support a finding, on the balance of probabilities,  that the accused would not have acted any differently had he been informed of the existence of 24-hour duty counsel services.  Even if it is accepted that the accused was "indecisive" about whether or not he was going to call his own lawyer, this does not support the inference that he would not have called duty counsel if he had known of the existence of the 1-800 number.  To my mind, the fact that the appellant wanted to call his lawyer but was seen to hang up without dialling when in the phone booth, together with the fact that it was 4 a.m. at the time, suggests that he might have used the toll-free service if he had known about it.  In light of the uncertainty which exists as to what the appellant would have done if his s. 10 (b) rights had not been violated, I am compelled for the reasons I gave in Bartle at pp. 209-13 to find in favour of the appellant and against the Crown on the issue of trial fairness.  In other words, the Crown has not satisfied me on a balance of probabilities that the appellant would not have behaved any differently if he had been properly informed of his right to duty counsel.

 

           I would add that neither the good faith of the police in this case nor the relative seriousness of the offence with which the appellant was charged can override what I believe would be an unfair trial if the evidence were admitted.  In other words, I am satisfied that admission of the impugned evidence could bring the administration of justice into disrepute and, therefore, it should not be admitted under s. 24(2) 

 

(c)  Conclusion

 

           In light of my conclusion that the appellant's s. 10 (b) rights were infringed and that the breathalyser evidence obtained as a result of this breach should not be admitted under s. 24(2)  of the Charter , I would allow the appeal, quash the conviction and substitute a verdict of acquittal.


 

                   The following are the reasons delivered by

 

//La Forest J.//

 

                   La Forest J. -- For the reasons I have set forth in R. v. Bartle, [1994] 3 S.C.R. 173, issued concurrently, I would dispose of this appeal 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. Bartle, [1994] 3 S.C.R. 173, R. v. Prosper, [1994] 3 S.C.R. 236, R. v. Harper, [1994] 3 S.C.R. 343, and R. v. Matheson, [1994] 3 S.C.R. 328) 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".  This case raises the particular issue of the disclosure of available duty counsel systems under the information component of s. 10 (b) of the Charter  and the exclusion of evidence under s. 24(2)  of the Charter , an issue also raised in Bartle and Harper.  I therefore refer to my reasons in those cases as if herein at length recited.

 

                   I have had the opportunity to read the reasons of both the Chief Justice and McLachlin J.  I do not agree, however, with either the results they reach or the reasons they offer.  In particular, I do not agree that, to use the Chief Justice's words, as a constitutional requirement, "a detainee is entitled under the information component of s. 10 (b) of the Charter  to be advised of whatever system for free and immediate, preliminary legal advice exists in the jurisdiction at the time of detention and of how such advice can be accessed" (p. 319).  While it may be desirable to provide a detainee with such information, as I explain in Bartle, it is not constitutionally mandated.

 

                   As the trial judge and the Court of Appeal found, the appellant in this case expressed no desire to contact duty counsel and voiced no concern about his ability to afford or find a lawyer.  The appellant's answers rather led the police officers to infer that he had his own lawyer and would consult him or her.  The appellant was offered every reasonable opportunity to use the telephone.  When given a first opportunity, the appellant called a friend.  When he later asked to contact his own lawyer, he was given an opportunity to do so.  Without any explanation, the appellant chose not to call a lawyer.  Greco Prov. Div. J. made a finding that the appellant understood his right to counsel.  In these circumstances, the appellant was fully advised of his constitutional right to counsel and no breach of s. 10 (b) of the Charter  occurred.  Consequently, no remedy is available under s. 24(2)  of the Charter .

 

                   Had I agreed with the Chief Justice and McLachlin J. that the appellant's rights under s. 10 (b) of the Charter  were violated, I would have held that the breathalyser evidence should not have been excluded under s. 24(2)  of the Charter .  In that, 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 R. v. Brydges, [1990] 1 S.C.R. 190].  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, [1988] 2 S.C.R. 980], 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.]

 

I note that the impugned evidence here consists only of the results of two breathalyser tests taken by the appellant.  There was no incriminating statement from the appellant, as was the case in Bartle.

 

                   On the basis of the factors set out in R. v. Collins, [1987] 1 S.C.R. 265, the Charter  violation, had there been one, would not have been a serious one so as to mandate the exclusion of the evidence.  Such exclusion rather than its admission, on the facts of this case, would bring the administration of justice into disrepute.

 

                   First, the factors concerning the fairness of the trial favour the admission of the evidence.  As I said in Bartle, the breathalyser tests cannot be simply characterized as self-incriminating evidence in the same way as a confession.  Rather, they are indicia of a physical condition which existed and could have been discovered by other means, whether or not the police informed the appellant of his s. 10 (b) rights.  In these circumstances, the admission of the results of the two breathalyser tests would not render the trial unfair, whether or not the appellant would have used the toll-free service if he had known about it.

 

                   The second set of factors focusing on the seriousness of the violation of the Charter  would also militate towards admission rather than exclusion of the appellant's breathalyser tests.  Noble J. commented on this aspect as follows:

 

. . . I am satisfied that the police officers acted in good faith and their failure to provide complete access to duty counsel and to Legal Aid system, by supplying the toll free number, was inadvertent. [Emphasis added.]

 

Sergeant Smith, Constable Carscadden and Constable Fortin gave the appellant every reasonable opportunity to use the telephone.  I do not fault the behaviour of the police and believe, as the Chief Justice states, that they acted in "good faith".  Therefore the admission of the evidence is favoured by this second set of factors.

 

                   Finally, with respect to the final group of factors concerning the potential for disrepute to the administration of justice, the appellant was charged under s. 253 (b) of the Criminal Code, R.S.C., 1985, c. C-46 , that is to have 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.  The seriousness of the offence of operating a motor vehicle while impaired cannot be disregarded as this Court has pointed out in numerous occasions (R. v. Hufsky, [1988] 1 S.C.R. 621; R. v. Thomsen, [1988] 1 S.C.R. 640; R. v. Ladouceur, [1990] 1 S.C.R. 1257; R. v. Wilson, [1990] 1 S.C.R. 1291; and R. v. Mellenthin, [1992] 3 S.C.R. 615) and as I have reiterated in my reasons in Bartle.  Given the nature of the Charter  violation and its minimal incidence on the fairness of the trial, if any, the seriousness of offences against s. 253 (b) of the Criminal Code  militates in favour of the admission of the evidence rather than its exclusion.  Its exclusion, in my view, would bring the administration of justice into disrepute.  Accordingly, I would have had no hesitation in admitting the breathalyser evidence, had I found a breach of s. 10 (b) of the Charter , which I do not.

 

                   For theses 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 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. -- Although I am in substantial agreement with the reasons of the Chief Justice, given my reasons in R. v. Prosper, [1994] 3 S.C.R. 236, released concurrently, I wish to make some additional remarks.

 

                   The issues to be determined in this appeal are essentially the same as those raised in the companion cases of R. v. Bartle, [1994] 3 S.C.R. 173 and R. v. Harper, [1994] 3 S.C.R. 343, namely:  (1) what information must be provided on detention in jurisdictions where there exists some system of free and immediate, preliminary legal advice for all detainees?; and (2) if the informational component is not satisfied on the facts of the appeal, should the evidence obtained as a result of the breach of s. 10 (b) be excluded under s. 24(2)  of the Canadian Charter of Rights and Freedoms ?

 

                   As I note in my reasons in Prosper, all detainees must be told, at a minimum, that they are entitled to an opportunity to contact counsel immediately, and that their right to do so is conferred upon them even if they cannot afford private counsel.  In addition, in those jurisdictions where the province or local bar association has established some system of free and immediate, preliminary legal advice for all detainees, the authorities must also provide detainees with information about the existence and availability of these services.  Such information should include details about how to access duty counsel services.

 

                   As in Bartle, the caution given to the appellant failed to convey to him adequately that he was entitled to contact counsel immediately, prior to providing incriminating evidence.  Moreover, the caution failed to inform the appellant properly that the right to counsel under s. 10 (b) of the Charter  is not a right which is restricted to those who can afford private counsel.  As the breach of the informational component of s. 10 (b) is established upon the failure to meet these two minimum requirements, it is not strictly necessary to show that the police failed to meet the additional requirement of informing the appellant of the duty counsel scheme which existed at the time of his detention.  It is clear, however, that in the circumstances the police were under an obligation to provide the appellant with information about the existing duty counsel system, and should have provided the appellant with the toll-free number by which free and immediate, preliminary legal advice might have been obtained.

 

                   I agree with the Chief Justice's conclusion that the breach of s. 10 (b) was complete upon the failure of the police to inform the appellant properly of his right to counsel, and that the appellant's subsequent conduct is therefore irrelevant. 

 

                   I further agree with the Chief Justice's analysis and conclusion with respect to the exclusion of evidence under s. 24(2) .  I, too, am satisfied that the admission of the evidence in question in this case would bring the administration of justice into disrepute.

 

                   Accordingly, I would dispose of the appeal in the same manner as the Chief Justice.


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

 

                   Solicitor for the appellant:  Anil K. Kapoor, Toronto.

 

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

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