Supreme Court of Canada
Duke v. The Queen  S.C.R. 917
George Clinton Duke Appellant;
Her Majesty The Queen Respondent. 1972: March 7, 8; 1972: June 29.
Present: Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Hall, Spence, Pigeon and Laskin H.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
Criminal law-Civil rights-Motor vehicles-Excessive quantity of alcohol in blood---Breathalizer-No sample of breath given to accused-No denial of right to fair trial-Canadian Bill of Rights, 1960 (Can.), c. 44, s. 2(e), (f)--Criminal Code, 1953-54 (Can.), c. 51, ss. 224, 557(3).
The appellant was stopped while driving a motor vehicle and was taken to a local police station where he gave a sample of his breath into a breathalizer. He was charged with driving a motor vehicle having consumed alcohol in such quantity that the proportion thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood contrary to s. 224 of the Criminal Code. Eight days after the breath sample was taken, the appellant's solicitor requested a sample of that breath. The reply received
stated that no sample was available and that none had been retained. The Provincial Judge, before whom the information came, declined to quash it. Application was then made for an order of prohibition. That order was granted. On appeal by the Crown, the prohibition order was set aside. The accused appealed to this Court. It was argued that the failure to provide the appellant with a sample of his own breath was a violation of s. 2(e) of the Bill of Rights.
Held: The appeal should be dismissed.
Per curiam: The legislative history of s. 224A shows that the requirement that the accused be furnished with a specimen of his breath was deliberately omitted from the legislation. The result is that the statute makes it clear that the accused is not entitled to receive a specimen of his breath from the person who takes the sample and that the analysis of the breath sample can be used in evidence on a charge under s. 222 or s. 224. Section 224A(1) (c) did not deprive the appellant of a fair trial under s. 2(e) of the Bill of Rights and is not in conflict with it. In the circumstances of this case, s. 2(f) of the Bill of Rights is not more comprehensive than s. 2(e) and the same considerations apply.
Per Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Hall, and Pigeon JJ.: The failure of the Crown to provide evidence to an accused person does not deprive the accused of a fair trial unless, by law, it is required to do so.
APPEAL from a judgment of the Court of Appeal for Ontario, setting aside an order of prohibition.
Harvey R. Daiter, for the appellant.
M. Manning, for the respondent.
The judgment of Fauteux C. J. and of Abbott, Martland, Judson, Ritchie, Hall and Pigeon JJ. was delivered by
THE CHIEF JUSTICE-This is an appeal from the unanimous judgment of the Court of Appeal for Ontario, which allowed the appeal of the
present respondent from an order of prohibition, which prohibited any further proceedings against the present appellant under an information and summons charging him with an offence under s. 224 (now s. 236) of the Criminal Code. The order of prohibition was set aside. I will refer to the relevant sections of the Code by the numbers which they bore at the time the offence charged is alleged to have been committed.
Section 224 of the Criminal Code provided:
Every one who drives a motor vehicle or has the care or control of a motor vehicle, whether it is in motion or not, having consumed alcohol in such a quantity that the proportion thereof in his blood exceeds 80 milligrams of alcohol in 100 millilitres of blood, is guilty of an offence punishable on summary conviction and is liable to a fine of not less than fifty dollars and not more than one thousand dollars or to imprisonment for not more than six months, or both.
The facts giving rise to the present appeal are stated in the reasons of Jessup J. A. in the Court of Appeal:
On March 11, 1971, the respondent was stopped, while driving an automobile, by a member of the Oakville Police Department. He was taken to the local police station where he gave a sample of his breath into a breathalizer. On March 16, 1971, an information was sworn charging him with driving a motor vehicle having consumed alcohol in such quantity that the proportion thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood contrary to s. 224 of the Criminal Code. On March 19, 1971, a letter was addressed to the Oakville Po-lice Department by the respondent's solicitor re-questing a sample of the breath taken from the respondent. On March 23, 1971, a reply to such letter was received by the solicitor stating that a breath sample was not available and enclosing the results of the breathalizer test taken. On March 24, 1971, a further letter from the solicitor was directed to the Oakville Police Department repeating the request for a breath sample in order to enable arrangements for an independent analysis of the sample. On March 26, 1971, a reply was received from the Oakville Police Department stating that no samples of breath were retained by the police either for the Crown's use or for the respondent's use.
The Provincial Judge, before whom the information came, declined to quash it. Application was then made for the order of prohibition previously mentioned.
Section 224A(1)(c) (now s. 237(1)(c)) provided that:
(1) In any proceedings under section 222 or 224, (c) where a sample of the breath of the accused has been taken pursuant to subsection (1) of section 223, if the sample was taken as soon as practicable after the time when the offence was alleged to have been committed and in any even not later than two hours after that time,
(ii) the sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and
(iii) a chemical analysis of the sample was made by means of an approved instrument operated by a qualified technician,
(iv) evidence of the results of the chemical analysis so made is, in the absence of any evidence to the contrary, proof of the proportion of alcohol in the blood of the accused at the time when the offence was alleged to have been committed;
Chapter 38 of the Statutes of Canada, 1968-69 contained, in addition to paras. (ii), (iii) and (iv), para. (i) which has not yet been proclaimed and which reads as follows:
(i) at the time the sample was taken, the person taking the sample offered to provide to the accused a specimen of the breath of the accused in an approved container for his own use, and, at the request of the accused made at that time, such a specimen was thereupon provided to him,
The power of the Governor in Council, under s. 120 of that Act, to proclaim, inter alia, only certain portions of s. 224A and to omit from the proclamation para. (i) above-mentioned, and certain other portions of that section, was the subject of a reference of this Court, whereupon it was decided that such power was given by s. 120.
The reasons which were given for the making of the order of prohibition are stated in the following two passages:
If a person is being charged with an offence based upon a sample of his own breath, in my opjnion [sic], in order to properly answer that charge he must be given the opportunity of testing that sample himself, and, to deprive the accused of such sample is to deprive him of the right to make full answer and defence. It is plain that this accused has no way of knowing whether or not Crown evidence that the proportion of alcohol in his blood, at the relevant time, exceeded 80 mg. of alcohol in 100 ml. of blood is true let alone answer it unless furnished with a specimen of the sample for his own use and analysis.
It appears to me, therefore, that it is impossible for this man to have a fair hearing in accordance with principles of fundamental justice. When it appears obvious to the Court that there is going to be a prosecution in violation of the provisions of section 2(e) of the Bill of Rights I think that the Court should exercise its discretion and issue a writ of prohibition to prevent the violation.
The latter passage refers to s. 2(e) of the Bill of Rights. Reference was also made in the Court of Appeal and in this Court to s. 2(f). The relevant parts of the Bill of Rights provide as follows:
2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to
(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;
(f) deprive a person charged with a criminal offence of the right to be presumed innocent until proved guilty according to law in a fair and public
hearing by an independent and impartial tribunal, or of the right to reasonable bail without just cause;
In the Court of Appeal, Jessup J.A. expressed the view that s. 2(e) of the Bill of Rights concerned only hearings to establish civil rights and liabilities and that it is s. 2(f) which is concerned with criminal liabilities. Aylesworth and MacKay JJ.A. expressed no opinion on this point. This question was later considered by this Court in Lowry v. R., when it was held that s. 2(e) was applicable to criminal as well as to civil proceedings.
Notwithstanding the view which he expressed as to the application of s. 2(e), Jessup J.A. was of the opinion that both subs. (e) and (f) guarantee a fair hearing and that there was little difference between them in relation to the issue in the present case. He approached it as if both sections might be applicable.
As Jessup LA. pointed out:
It will be seen that the extraordinary result of Galligan, J.'s judgment, in effect, is judicially to proclaim in force s. 224A(1) (c) (i), notwithstanding that the executive branch of the Government, acting within the authority conferred on it by Parliament, has not seen fit to do so.
However, he goes on to say, I think correctly:
Moreover, I agree with Galligan, J. that the issue arising under the Bill of Rights involved in this appeal was not dealt with, expressly or by implication, by the majority of the judgments in the reference...
The matter was raised in the dissenting reasons of my brother Ritchie, concurred in by Spence and Pigeon JJ., but he added, at p. 715:
No question is here raised as to the effect which the Bill of Rights would have had if Parliament it-self had enacted s. 16 in the form in which it was proclaimed and I do not find it necessary to deal with any such question.
In view of the answers given by this Court on the reference, the provisions which were pro-claimed stand in the same position as if Parliament had passed them in that form.
However, the history of s. 224A has, I think, some significance in this case. Section 223, which was enacted and proclaimed at the same time as s. 224A, makes provision, in the circumstances stated in the section, for a peace officer to require a person to provide a sample of his breath suitable to enable an analysis to be made. This Court has held in Curr v. R that this provision was not rendered inoperative by reason of a conflict with the Bill of Rights. Under that section the person required to furnish a breath sample is being required to furnish evidence which may be used in the manner provided in s. 224A.
Section 224A, as enacted, would have required the person taking the breath sample to offer to provide a specimen of the breath to the accused, and, if requested by the accused, to provide such specimen to him, before evidence of an analysis of the sample could be used against him in a charge under s. 222 or s. 224. However, that requirement was deliberately omitted when the Act was pro-claimed, and the result is that the statute makes it clear that the accused is not entitled to receive a specimen of his breath from the person who takes the sample, and that the analysis of the breath sample can be used in evidence on a charge under s. 222 or s. 224.
It is against this background that the appellant's submission must be considered. Under s. 2(e) of the Bill of Rights no law of Canada shall be construed or applied so as to deprive him of "a fair hearing in accordance with the principles of fundamental justice." Without attempting to formulate any final definition of those words, I would take them to mean, generally, that the tribunal which adjudicates upon his rights must act fairly, in good faith, without bias and in a judicial temper, and must give to him the opportunity adequately to state his case.
5 [19721 S.C.R. 889, 18 C.R.N.S. 281, 7 C.C.C. (2d) 181, 26 D.L.R. (3d) 603.
In the present case, of course, there has not yet been any hearing. The hearing was prohibited because of events which occurred before trial. How far pre-trial occurrences may be taken to have prevented a fair hearing must be decided as the cases arise. In the case with which we are concerned, the substance of the complaint is that, be-cause the Crown failed to provide the appellant with certain evidence (which, incidentally, he did not request until eight days after his breath sample was taken), he has been prevented from having a fair trial, and, consequently, the Crown is precluded from proceeding to a trial in which an analysis of his breath sample would be given in evidence.
This is not a case in which the accused has requested information in the possession of the Crown, and been refused. Whether or not a refusal of that kind would deprive the accused of a fair trial is not in issue in this case. This is a case in which the complaint is that the Crown failed to provide the accused with evidence for the purpose of his defence.
In my opinion, the failure of the Crown to pro-vide evidence to an accused person does not deprive the accused of a fair trial unless, by law, it is required to do so. In the present case, Parliament has provided that the analysis of a breath sample is, under certain conditions, evidence in relation to a charge under s. 222 or s. 224. It has not required that the accused be furnished with a specimen of his breath, in order to make such analysis admissible. On the contrary, the legislative history of s. 224A shows that such a requirement was deliberately omitted from the legislation.
In my opinion, s. 224A(1) (c) does not deprive the appellant of a fair trial under s. 2(e) of the Bill of Rights and is not in conflict with it.
In relation to the circumstances of this case, s. 2(f) of the Bill of Rights is not more comprehensive than s. 2(e) and what I have said as to the latter provision applies equally to the former.
I would dismiss this appeal.
The judgment of Spence and Laskin JJ. was de-livered by
LASKIN J.-I agree with the Chief Justice that on facts of this case and under the statutory pro-visions applicable thereto the appeal fails for the reasons he has given, but I reserve my opinion on the general proposition stated by him in the following words:
In my opinion, the failure of the Crown to provide evidence to an accused person does not deprive the accused of a fair trial unless, by law, it is required to do so.
The disposition of this appeal does not, in my view, depend upon this proposition, and hence my reservation thereon.
Solicitor for the appellant: Harvey R. Daiter, Toronto.
Solicitor for the respondent: The Attorney General of Ontario, Toronto.
  1 O.R. 61, 15 C.R.N.S. 370, 4 C.C.C. (2d) 504, 22 D.L.R. (3d) 249.
  1 O.R. 61, 15 C.R.N.S. 370, 4 C.C.C. (2d) 504, 22 D.L.R. (3d) 249.
  S.C.R. 777, 12 C.R.N.S. 28, 74 W.W.R. 167,  3 C.C.C. 320, 10 D.L.R. (3d)699.
 (1972),6 C.C.C, (2d) 531, 26 D.L.R. (3d) 224.
 (1972),6 C.C.C, (2d) 531, 26 D.L.R. (3d) 244.