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R. v. Mohl, [1989] 1 S.C.R. 1389


Her Majesty the Queen                                                                    Appellant




Roland Gordon Mohl  Respondent


Indexed as:  R. v. Mohl


File No.:  20357.


1989:  May 25.


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


on appeal from the court of appeal for saskatchewan


                   Criminal law ‑‑ Charter of Rights  ‑‑ Legal rights ‑‑ Right to counsel ‑‑ Motorist too impaired to understand right to retain and instruct counsel ‑‑ Breathalyser test ‑‑ Whether use of breathalyzer certificate would bring the administration of justice into disrepute ‑‑ Canadian Charter of Rights and Freedoms, ss. 10 (b), 24(2) .


                   APPEAL from a judgment of the Saskatchewan Court of Appeal (1987), 55 Sask. R. 22, 34 C.C.C. (3d) 435, [1987] 4 W.W.R. 31, 56 C.R. (3d) 318, 50 M.V.R. 237, 30 C.R.R. 28, allowing an appeal from a judgment of Sirois J., allowing an appeal by the Crown from the accused's acquittal of driving while impaired and entering a conviction.  Appeal allowed.


                   Kenneth W. MacKay, Q.C., for the appellant.


                   Anil K. Kapoor and Ajit K. Kapoor, for the respondent.


                   The judgment of the Court was delivered orally by


                   The Chief Justice‑‑We have reached a unanimous decision, and my brother Lamer will deliver the judgment of the Court.


                   Lamer J.‑‑The Crown, in this case, has not argued the urgency to proceed with the breathalyzer test, and must be taken to have conceded that the respondent has not been given his rights under s. 10 (b) of the Canadian Charter of Rights and Freedoms .  The Crown's sole argument is under s. 24(2)  and to the effect that the admission of the evidence, under the circumstances of this case, would not bring the administration of justice into disrepute.  Assuming, without deciding, that there has been a violation of the accused's s. 10 (b) rights, we agree with Sirois J. that the admission of the evidence in this case would not bring the administration of justice into disrepute.


                   The appeal is accordingly allowed, the judgment of the Court of Appeal is set aside, the conviction entered by Sirois J. and his order referring the matter back to the trial judge for sentencing are restored.


                   Judgment accordingly.


                   Solicitor for the appellant:  Kenneth W. MacKay, Regina.


                   Solicitors for the respondent:  Kapoor, Selnes & Klimm, Melfort.

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