Supreme Court Judgments

Decision Information

Decision Content

R. v. Therens, [1985] 1 S.C.R. 613

 

Her Majesty The Queen     Appellant;

 

and

 

Paul Mathew Therens     Respondent;

 

and

 

The Attorney General of Canada, the Attorney General for Ontario and the Attorney General of Quebec         Interveners.

 

File No.: 17692.

 

1984: June 21; 1985: May 23.

 

Present: Dickson C.J. and Ritchie*, Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson and Le Dain JJ.

 

*Ritchie J. took no part in the judgment.

 

on appeal from the court of appeal for saskatchewan

 

                   Constitutional law ‑‑ Charter of Rights  ‑‑ Right to counsel ‑‑ Impaired driving ‑‑ Accused requested to accompany police officer for purposes of providing breath samples for analysis ‑‑ Whether accused detained ‑‑ Whether police required to inform accused of right to counsel ‑‑ Criminal Code, ss. 234.1(1) , 235(1) , (2) , 236(1) , 237  ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 10 .


 

                   Constitutional law ‑‑ Charter of Rights ‑‑Remedies‑‑Right to counsel infringed ‑‑ Impaired driving‑‑Evidence provided by breathalyzer test excluded pursuant to s. 24(2)  of the Charter  ‑‑ Canadian Charter of Rights and Freedoms, ss. 10 , 24(1) , (2) .

 

                   Criminal law ‑‑ Charter of Rights  ‑‑ Impaired driving ‑‑ Right to counsel infringed ‑‑ Evidence provided by breathalyzer test excluded ‑‑ Criminal Code, ss. 234.1(1) , 235(1) , (2) , 236(1) , 237  ‑‑ Canadian Charter of Rights and Freedoms, ss. 10 , 24 .

 

                   Respondent lost control of his motor vehicle and it collided with a tree. A police officer demanded respondent provide samples of his breath for analysis pursuant to s. 235(1)  of the Criminal Code . Respondent accompanied the officer to the police station, complied with the demand, and was subsequently charged with driving a motor vehicle while having an excessive blood alcohol level contrary to s. 236(1) of the Code. At trial, respondent's counsel objected to the admission of the certificate of analysis and applied, pursuant to s. 24  of the Charter , for its exclusion on the ground that he had been denied the right, guaranteed by s. 10 (b) of the Charter , to be informed, upon arrest or detention, of his right to retain and instruct counsel without delay. The trial judge allowed the application and dismissed the charge for lack of other evidence of the respondent's blood alcohol level. The judge held that the respondent had been detained within the meaning of s. 10  of the Charter , that the court was empowered by s. 24(1)  thereof to exclude the certificate if it considered such exclusion to be appropriate and just in the circumstances, and that it was not confined to the test laid down in s. 24(2) . The majority of the Court of Appeal upheld the decision.

 

                   Held (McIntyre and Le Dain JJ. dissenting): The appeal should be dismissed.

 

1)                Detention and violation of respondent’s right to counsel

 

                   Per Dickson C.J. and McIntyre, Lamer and Le Dain JJ.: Respondent's rights under s. 10 (b) of the Charter  were violated. A person who complied with a demand, pursuant to s. 235(1)  of the Criminal Code , to accompany a police officer to a police station and to submit to a breathalyser test is "detained" within the meaning of s. 10  of the Charter  and that person is therefore entitled to be informed of his right to retain and instruct counsel without delay.

 

                   The word "detention" in s. 10  is directed to a restraint of liberty of varying duration other than arrest in which a person may reasonably require the assistance of counsel and might be prevented or impeded from retaining and instructing counsel without delay but for the constitutional guarantee. In addition to the case of deprivation of liberty by physical constraint, there is also a "detention" within s. 10  when a police officer assumes control over the movement of a person by a demand or direction which may have significant legal consequence and which prevents or impedes access to counsel. There must, however, be some form of compulsion or coercion. Any criminal liability for failure to comply with a demand or direction of a police officer is sufficient to make compliance involuntary. Under s. 235(2), a refusal to comply with a s. 235(1)  demand without reasonable excuse is a criminal offence.

 

                   Notwithstanding any similarity to s. 10  of the Charter , the meaning of the word "detained" in s. 2(c) of the Canadian Bill of Rights as adopted by this Court in Chromiak was not determinative of the issue. The premise that the framers of the Charter  must be presumed to have intended that the words used by it should be given the meaning which had been given to them by judicial decisions at the time the Charter  was enacted is not a reliable guide to its interpretation and application. By its very nature, a constitutional charter of rights and freedoms must use general language which is capable of development and adaptation by the court. It is the purpose of the section that must be considered in determining the meaning of the word "detention" in s. 10 .

 

                   Per Beetz, Estey, Chouinard and Wilson JJ.: When the police officers administered the breathalyzer test under s. 235(1) of the Code, respondent was detained within the meaning of s. 10  of the Charter  and his rights under that section were violated. The peace officers did not accord him the right "without delay" to retain and instruct counsel, nor did they inform him of that right.

 

2)                Whether respondent’s right to counsel subject, by virtue of s. 235(1) of the Code, to a limit prescribed by law

 

                   Per Beetz, Estey, Chouinard and Wilson JJ.: The Court is not concerned with s. 1  of the Charter  because Parliament, in s. 235(1) of the Code, has not purported to limit respondent's right under s. 10 (b) of the Charter . Section 1  subjects all Charter  rights, including s. 10 , "only to such reasonable limits prescribed by law...." Here the limit on the respondent's right to consult counsel was imposed by the conduct of the police officers and not by Parliament.

 

                   Per Dickson C.J. and McIntyre and Le Dain JJ.: Section 235(1) of the Code does not purport to place a limitation on the right to counsel. A s. 235(1)  demand must be made "forthwith or as soon as practicable" and the person to whom the demand is made must provide a breath sample "then or as soon thereafter as is practicable". The two‑hour operating requirement imposed by s. 237(1)(b)(ii) does not preclude any contact at all with counsel prior to the breathalyser test. When detained because of a s. 235(1)  demand, the right to be informed of the right to retain and instruct counsel without delay is not, therefore, subject to a limit prescribed by law within the meaning of s. 1  of the Charter .

 

                   Per Lamer J.: The violation of the respondent's rights is not the result of the operation of the law but of the police action. Therefore, there is no need to consider in this case whether, under s. 1  of the Charter , the "breathalyzer scheme" set up through s. 235(1)  and s. 237  of the Criminal Code  is a reasonable limit to one's rights under the Charter .

 

3)                Whether the breathalyzer evidence should be excluded

 

                   Per Beetz, Estey, Chouinard and Wilson JJ.: The question of the admissibility of the evidence provided by the breathalyzer test must be determined by s. 24(2)  of the Charter  and not by s. 24(1) . Subsection (2)  alone empowers a court to exclude evidence where such evidence "was obtained in a manner that infringed...rights...guaranteed by [the] Charter ,...if it is established that...the admission of it...would bring the administration of justice into disrepute". Here, the evidence must undoubtedly be excluded. The police have flagrantly violated a Charter  right without statutory authority. To admit this evidence under these circumstances would clearly "bring the administration of justice into disrepute".

 

                   Per Dickson C.J. and Lamer J.: The breathalyzer evidence tendered in this case was obtained in a manner which infringed and denied the respondent's rights under s. 10 (b) of the Charter . The simple fact, however, that the infringement of the right preceded the obtaining of the evidence is not sufficient to meet that requirement. Indeed, if there is no relationship other than a temporal one, the evidence was not "obtained in a manner that infringed" the Charter . Where a detainee is required to provide evidence which may be incriminating and where refusal to comply is punishable as a criminal offence, as is the case under s. 235 of the Code, s. 10(b) imposes a duty not to call upon the detainee to provide that evidence without first informing him of his s. 10 (b) rights and providing him with a reasonable opportunity and time to retain and instruct counsel. Failure to abide by that duty will lead to the obtainment of evidence in a manner which infringes or denies the detainee's s. 10 (b) rights. To admit the breathalyzer evidence in these circumstances would bring the administration of justice into disrepute. Therefore, since the evidence may be properly excluded by the operation of s. 24(2)  of the Charter , there is no need to express any view on the availability of the exclusion of evidence as an appropriate and just remedy under s. 24(1) .

 

                   Per McIntyre and Le Dain JJ., dissenting: Although respondent's right under s. 10  of the Charter  was infringed, the evidence provided by the breathalyser test should not have been excluded. The Court of Appeal erred in affirming the exclusion of the evidence on the ground that it was appropriate and just in the circumstances, within the meaning of s. 24(1)  of the Charter . It is clear that in making explicit provision for the remedy of exclusion of evidence in s. 24(2) , following the general terms of s. 24(1) , the framers of the Charter  intended that this particular remedy should be governed entirely by the terms of s. 24(2) . The evidence represented by the certificate of analysis was obtained in a manner infringing respondent's right to counsel and met the first requirement of that subsection, but its admission in the circumstances of this case would not bring the administration of justice into disrepute. The right to counsel is of fundamental importance and its denial in a criminal law context must prima facie discredit the administration of justice. However, in view of the judgment of this Court in Chromiak, the police officer was entitled to assume in good faith that the respondent did not have such a right on a demand under s. 235  of the Criminal Code . Because of this reliance in good faith, the admission of the evidence of the breathalyzer test here would not bring the administration of justice into disrepute.

 

                   Per McIntyre J., dissenting: The exclusion of the breathalyzer evidence solely on a finding that a Charter  right was breached in obtaining it would be to disregard the provisions of s. 24(2)  of the Charter . The exclusion of such evidence is not automatic. It must be excluded only where it is established that its admission, having regard to all the circumstances, would bring the administration of justice into disrepute. That was not established here.

 

Cases Cited

 

                   Chromiak v. The Queen, [1980] 1 S.C.R. 471, aff'g (1979), 46 C.C.C. (2d) 310, considered; R. v. Currie (1983), 4 C.C.C. (3d) 217; R. v. Trask (1983), 6 C.C.C. (3d) 132; Rahn v. The Queen (1984), 11 C.C.C. (3d) 152; R. v. Simmons (1984), 11 C.C.C. (3d) 193; R. v. Talbourdet (1984), 12 C.C.C. (3d) 173, considered; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; Hogan v. The Queen, [1975] 2 S.C.R. 574; Rothman v. The Queen, [1981] 1 S.C.R. 640; R. v. Collins (1983), 5 C.C.C. (3d) 141; R. v. Cohen (1983), 5 C.C.C. (3d) 156; R. v. Stevens (1983), 7 C.C.C. (3d) 260; R. v. Chapin (1983), 7 C.C.C. (3d) 538; R. v. Manninen (1983), 8 C.C.C. (3d) 193; Minister of Home Affairs v. Fisher, [1980] A.C. 319; Brownridge v. The Queen, [1972] S.C.R. 926; Miranda v. Arizona, 384 U.S. 436 (1966), referred to.

 

Statutes and Regulations Cited

 

Canadian Bill of Rights, R.S.C. 1970, App. III, s. 2(c).

 

Canadian Charter of Rights and Freedoms, ss. 1 , 10 , 24 .

 

Constitution Act, 1982, s. 52 .

 

Criminal Code, R.S.C. 1970, c. C‑34, ss. 234.1(1) [added 1974‑75‑76, c. 93, s. 15], 235 [rep. & subs. by 1974‑75‑76, c. 93, s. 16], 236 [rep. & subs. by 1974‑75‑76, c. 93, s. 17], 237(1)(c) [rep. & subs. by 1974‑75‑76, c. 93, s. 18].

 

 

Authors Cited

 

Dworkin, R. Taking Rights Seriously, London, Duckworth, 1977.

 

Fleming, J. G. The Law of Torts, 6th ed., Sydney, Law Book Company Ltd., 1983.

 

Gibson D. "Determining Disrepute: Opinion Polls and the Canadian Charter of Rights and Freedoms " (1983), 61 Can. Bar Rev. 377.

 

 

                   APPEAL from a judgment of the Saskatchewan Court of Appeal (1983), 5 C.C.C. (3d) 409, 148 D.L.R. (3d) 672, 23 Sask. R. 81, 33 C.R. (3d) 204, 5 C.R.R. 157, 20 M.V.R. 8, [1983] 4 W.W.R. 385, dismissing an appeal by the Crown by way of stated case from the accused's acquittal by Muir Prov. Ct. J. (1982), 70 C.C.C. (2d) 468, 16 M.V.R. 285, on a charge under s. 236(1)  of the Criminal Code . Appeal dismissed, McIntyre and Le Dain JJ. dissenting.

 

                   D. Murray Brown, James MacPherson and Andrew Petter, for the appellant.

 

                   Robert Skinner and Vikas Khaladkar, for the respondent.

 

                   S. R. Fainstein, for the intervener the Attorney General of Canada.

 

                   Edward Then, Q.C., for the intervener the Attorney General for Ontario.

 

                   Jean‑François Dionne, for the intervener the Attorney General of Quebec.

 

                   The following are the reasons delivered by

 

1.                The Chief Justice‑‑I agree with Le Dain J., for the reasons he has given in his judgment, that the respondent was detained within the meaning of s. 10  of the Canadian Charter of Rights and Freedoms , and that his rights under para. (b) were violated. I also agree with Le Dain J. that s. 235(1)  does not create a limit, prescribed by law, under s. 1  of the Charter , on a detained person's right to be informed of the right to retain and instruct counsel. Subsection 235(1)  does not expressly or by necessary implication compel the police to deny a detained person's right to be informed of his s. 10 (b) rights.

 

2.                I agree with Lamer J., for the reasons he has given, that the breathalyzer evidence tendered in this case was obtained in a manner which infringed and denied the respondent's rights under s. 10 (b) and that it has been established that, having regard to all the circumstances, the admission of this evidence in the proceedings would bring the administration of justice into disrepute. Accordingly, the certificate of analysis prepared pursuant to s. 237  of the Criminal Code  should be excluded under s. 24(2)  of the Charter .

 

3.                Since this evidence may properly be excluded by the operation of s. 24(2)  of the Charter , I do not wish to be taken as expressing any view on the availability of the exclusion of evidence as an appropriate and just remedy under s. 24(1)  of the Charter .

 

4.                I would accordingly dismiss this appeal.

 

                   The reasons of Beetz, Estey, Chouinard and Wilson JJ. were delivered by

 

5.                Estey J.‑‑I have had the benefit of reading the judgment of my colleague Le Dain J. in this appeal and while I am in agreement, as shall be seen below, with much of what has been there written, I am in respectful disagreement as to the disposition. I would dismiss the appeal for these reasons.

 

6.                I am in agreement that the respondent‑defendant was "detained" within the meaning of s. 10  of the Canadian Charter of Rights and Freedoms  when the police officers administered the breathalyzer test under s. 235  of the Criminal Code . That section of the Criminal Code  clearly anticipates a delay in some circumstances for the administration of this test. This is in contrast to s. 234.1(1) of the Code. In the former section the Code provides that the peace officer may "by demand made ... forthwith or as soon as practicable" require such person to provide samples "then or as soon thereafter as is practicable". Section 234.1(1)  requires that the person driving the motor vehicle "provide forthwith such a sample of his breath".

 

7.                Section 10 (b) of the Charter  provides:

 

                   10. Everyone has the right on arrest or detention

 

                                                                    ...

 

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

 

Neither of the two rights assured in s. 10 (b) of the Charter  were honoured by the police authority. The peace officers did not accord to the respondent the right "without delay" to retain and instruct counsel, nor did they inform the respondent of that right. There is nothing in this record to suggest that the officers would have been unable to afford the respondent a reasonable time to contact his counsel.

 

8.                The provisions of s. 235  cannot constitute a cause for failure to assure these rights. As noted above, action under s. 235  by the respondent need only be taken "as soon as practicable". We are not here faced with a proceeding under s. 234.1 which may raise different issues. Neither are we here, on this record, required to determine the more difficult question of what the peace officer may do pursuant to s. 235 of the Code after s. 10 (b) of the Charter  has been accommodated. Furthermore, because s. 24(2)  of the Charter , as we shall see, operates to exclude the evidence thereby obtained, s. 24(1)  of the Charter  need not be invoked.

 

9.                I am therefore in respectful agreement with my colleague that the rights of the respondent under s. 10 (b) have been violated.

 

10.              Because Parliament has not purported to place a limitation on the right of the respondent under s. 10 (b) of the Charter  in s. 235(1) , the Court is not here concerned with s. 1  of the Charter . That section subjects all Charter  rights, including s. 10 , "only to such reasonable limits prescribed by law ...." Here Parliament has not purported to prescribe any such limit and hence s. 1  of the Charter  does not come into play. The limit on the respondent's right to consult counsel was imposed by the conduct of the police officers and not by Parliament.

 

11.              This brings one to the core issue in this appeal, namely the admissibility of the evidence as to the alcohol content in the respondent's blood as determined by the test taken under s. 235(1) of the Code. The admissibility of this evidence in my view, and again I am in respectful agreement with my colleague Le Dain J., falls to be determined by s. 24(2)  of the Charter  and not by reason of subs. (1) of that section, as was the view of the Court of Appeal below. Subsection (2) alone in the Charter  empowers a court to exclude evidence where "that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter  ...." Subsection (2) goes on to direct, in mandatory terms:

 

... 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.

 

(Emphasis added.)

 

Here the police authority has flagrantly violated a Charter  right without any statutory authority for so doing. Such an overt violation as occurred here must, in my view, result in the rejection of the evidence thereby obtained. We are here dealing only with direct evidence or evidence thereby obtained directly and I leave to another day any consideration of evidence thereby indirectly obtained. To do otherwise than reject this evidence on the facts and circumstances in this appeal would be to invite police officers to disregard Charter  rights of the citizens and to do so with an assurance of impunity. If s. 10(b) of the Charter  can be offended without any statutory authority for the police conduct here in question and without the loss of admissibility of evidence obtained by such a breach then s. 10 (b) would be stripped of any meaning and would have no place in the catalogue of "legal rights" found in the Charter .

 

12.              The violation by the police authority of a fundamental Charter  right, which transpired here, will render this evidence inadmissible. Admitting this evidence under these circumstances would clearly "bring the administration of justice into disrepute". I am strongly of the view that it would be most improvident for this Court to expatiate, in these early days of life with the Charter , upon the meaning of the expression `administration of justice' and particularly its outer limits. There will no doubt be, over the years to come, a gradual build‑up in delineation and definition of the words used in the Charter  in s. 24(2) .

 

13.              For these reasons, I would therefore dismiss this appeal.

 

                   The following are the reasons delivered by

 

14.              McIntyre J. (dissenting)‑‑I am in full agreement with the reasons for judgment of Le Dain J. I would add that to exclude the questioned evidence in this case solely on a finding that a Charter  right was breached in obtaining it would be to disregard the provisions of s. 24(2)  of the Canadian Charter of Rights and Freedoms . In my view, this section must have its effect. The exclusion of such evidence is not automatic. It must be excluded only where it is established that its admission, having regard to all the circumstances, would bring the administration of justice into disrepute. In my view, that is not established here. The exclusion of the evidence in the circumstances of this case would itself go far to bring the administration of justice into disrepute.

 

                   The following are the reasons delivered by

 

15.              Lamer J.‑‑The issues that require determination in this case are the following: was the respondent detained, within the meaning of s. 10 (b) of the Canadian Charter of Rights and Freedoms ; was there a violation of his rights under s. 10 (b); if so, is the violation in this case a reasonable limit prescribed by law; if not, what is the proper remedy and disposition of this case.

 

16.              I have had the advantage of reading the judgments of my colleagues Estey and Le Dain JJ.

 

17.              I agree with my brother Le Dain for the reasons set out in his judgment that the respondent was detained. I also agree with Le Dain J. that there was here a violation of the respondent's rights under s. 10 (b). Clearly he was not, as a detainee, in any way informed of his right to retain and instruct counsel without delay. As set out in the reasons of Estey J., the violation of the respondent's rights is not the result of the operation of law but of the police action and there is no need, in my view, to consider in this case whether under s. 1  of the Charter  the "breathalyzer scheme" set up through s. 235(1)  and s. 237  of the Criminal Code  is a reasonable limit to one's rights under the Charter . That issue will certainly arise in some other case given the content which I think must be given to s. 10 (b).

 

18.              At first blush, there would appear not to be any need to expand upon the content of s. 10 (b) given that the facts of this case indicate a clear violation of the section whatever be that content. However, in order to meet the requirements for exclusion of evidence under s. 24(2)  there must not only exist a violation of a Charter  right, but there must also be, as was said by Le Dain J., "some connection or relationship between the infringement or denial of the right or freedom in question and the obtaining of the evidence the exclusion of which is sought by the application".

 

19.              With respect, however, I cannot subscribe to the proposition later advanced by Le Dain J. that this requirement is met by the simple fact that the infringement or denial of the right has preceded the obtaining of the evidence. Indeed, if there is no relationship other than a temporal one, the evidence was not "obtained in a manner that infringed" the Charter .

 

20.              Thus, when one addresses the consequences that should flow under s. 24  as a result of the violation in this case, one has to go back and give some content to s. 10 (b) if one is to consider whether, under s. 24(2) , the "breathalyzer evidence" was obtained in a manner that infringed or denied that right. Indeed, if a literal construction is given to s. 10 (b), there is then no nexus whatsoever between the requirement of the taking of breath samples on the one hand and, on the other hand, informing the detainee of his rights and not preventing him from exercising them.

 

21.              I do not want to be taken here as giving an exhaustive definition of the s. 10(b) rights and will limit my comments in that respect to what is strictly required for the disposition of this case. In my view, s. 10(b) requires at least that the authorities inform the detainee of his rights, not prevent him in any way from exercising them and, where a detainee is required to provide evidence which may be incriminating and refusal to comply is punishable as a criminal offence, as is the case under s. 235 of the Code, s. 10(b) also imposes a duty not to call upon the detainee to provide that evidence without first informing him of his s. 10(b) rights and providing him with a reasonable opportunity and time to retain and instruct counsel. Failure to abide by that duty will lead to the obtainment of evidence in a manner which infringes or denies the detainee's s. 10(b) rights. Short of that, s. 10(b) would be a near empty right, as remedies could seldom affect the admissibility of evidence obtained through the accused.

 

22.              Whether s. 10(b) extends any further, so as to encompass, for example, the principle of Miranda v. Arizona, 384 U.S. 436 (1966), and apply to matters such as interrogation and police line‑ups, need not be decided in this case and I shall refrain from so doing.

 

23.              Whether s. 235(1) of the Code in general, and its two hour limitation in particular, are in conflict with s. 10(b), especially that aspect of being given a reasonable time to speak to counsel, does not arise in this case and I would choose not to address that question for the following reason. Were we to find that s. 235(1)  does impose a limit on the amount of time the peace officer can give a detainee to exercise his rights under s. 10(b) before requiring a breath sample, we would in my view be faced with a very incomplete file when called upon to determine whether the limitation is one that is reasonable under the test set out in s. 1  of the Charter . I think that question, if to be addressed, will be more properly considered in a case where there will have been adduced evidence in support of the demonstration the authorities have the burden to make under s. 1 . As an example, why is there a two hour limit? Is it for scientific reasons related to reliability? I suspect so but do not find any evidence in the record.

 

24.              In this case, the test was required by the peace officer and then given to the detainee prior to his being informed of his right to counsel. By so doing, the police officer violated the accused's rights under s. 10(b) and obtained the "breathalyzer evidence" in a manner which infringed and denied those rights.

 

25.              I would decide the disposition of this case as does Estey J., and for the reasons he sets out in his judgment. Indeed, I am of the view that admitting the breathalyzer evidence in this case would bring the administration of justice into disrepute. Having so concluded, I need not express any views as regards the exclusion of evidence under s. 24(1) .

 

26.              I would therefore dismiss the appeal.

 

                   The following are the reasons delivered by

 

27.              Le Dain J. (dissenting)‑‑This appeal raises the following questions on which there have been differing opinions in provincial courts of appeal:

 

1.                Does a person upon whom a demand is made pursuant to s. 235(1)  of the Criminal Code  to accompany a police officer to a police station and to submit to a breathalyzer test have the right to counsel guaranteed by s. 10  of the Canadian Charter of Rights and Freedoms ?

 

2. If there has been an infringement or denial of the right to counsel, can the evidence obtained by the breathalyzer test be excluded pursuant to s. 24(1)  of the Charter  on the ground that its exclusion is considered by the court to be appropriate and just in the circumstances or may it be excluded pursuant only to s. 24(2)  on the ground that it was obtained in a manner that infringed or denied the right to counsel and that, having regard to all the circumstances, its admission would bring the administration of justice into disrepute?

 

3. If the evidence was obtained in a manner that infringed or denied the right to counsel, and its exclusion is to be governed exclusively by the test in s. 24(2)  of the Charter , what is the meaning and application to be given to that test in the circumstances of the present case?

 

28.              Section 235(1)  of the Criminal Code  and ss. 10  and 24  of the Charter  are as follows:

 

                   235. (1) Where a peace officer on reasonable and probable grounds believes that a person is committing, or at any time within the preceding two hours has committed, an offence under section 234 or 236, he may, by demand made to that person forthwith or as soon as practicable, require him to provide then or as soon thereafter as is practicable such samples of his breath as in the opinion of a qualified technician referred to in subsection 237(6) are necessary to enable a proper analysis to be made in order to determine the proportion, if any, of alcohol in his blood, and to accompany the peace officer for the purpose of enabling such samples to be taken.

 

                   10. Everyone has the right on arrest or detention

 

(a) to be informed promptly of the reasons therefor;

 

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

 

(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

 

                   24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

 

                   (2) Where, in proceedings under subsection (1), 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.

 

                                                                     I

 

29.              The appeal is by leave of this Court from the judgment of the Saskatchewan Court of Appeal on April 15, 1983, 5 C.C.C. (3d) 409, dismissing an appeal by way of stated case from a judgment of Judge Alastair J. Muir of the Provincial Court of Saskatchewan on July 30, 1982, 70 C.C.C. (2d) 468, which dismissed a charge that the respondent "on or about the 25th of April A.D. 1982 at the City of Moose Jaw, in the Province of Saskatchewan, did unlawfully drive a motor vehicle while having consumed alcohol in such quantity that the proportion thereof in his blood exceeds 80 milligrams of alcohol in 100 millilitres of blood, contrary to Section 236(1)  of the Criminal Code ".

 

30.              The facts found by Muir J. at the trial of the respondent are set out in the stated case as follows:

 

(a)  On April 24th, 1982, at approximately 10:30 P.M., the accused was operating a motor vehicle in a street in the City of Moose Jaw at which time he lost control of the vehicle and it collided with a tree at the side of the street.

 

(b)  Very shortly thereafter, Constable Measner of the Moose Jaw City Police Department arrived at the scene and conducted an investigation. Constable Measner, having reasonable and probable grounds for doing so, made a demand on the accused under the provisions of Section 235(1)  of the Criminal Code  requiring the accused to accompany him for the purpose of obtaining samples of the accused's breath for analysis. The accused accompanied the officer and supplied samples of his breath in compliance with the demand.

 

(c)  The accused was at no time informed of any rights to retain and instruct counsel.

 

(d)  The accused was co‑operative throughout the investigation and was at no time placed under arrest.

 

31.              In the reasons which he delivered on behalf of the majority for the Saskatchewan Court of Appeal, Tallis J.A said at p. 420: "It is common ground between counsel that after a demand was made under s. 235(1)  of the Criminal Code , the respondent accompanied the officer in a patrol car to the City Police Station in Moose Jaw, where the breathalyzer tests were subsequently conducted." There was no evidence that the accused, of his own knowledge, was aware of his right to retain and instruct counsel.

 

32.              At the trial of the respondent the Crown sought to tender in evidence the certificate of analysis prepared, pursuant to s. 237  of the Criminal Code , by the technician who conducted the breathalyzer test. Counsel for the respondent objected to the admission of the certificate and applied, pursuant to s. 24  of the Charter , for its exclusion on the ground that the respondent has been denied the right, guaranteed by s. 10  of the Charter , to be informed, upon arrest or detention, of his right to retain and instruct counsel without delay. The trial judge allowed the application, ordered the exclusion of the certificate, and for lack of other evidence of the respondent's blood alcohol level dismissed the charge. He held that the respondent had been detained within the meaning of s. 10  of the Charter  and that the court was empowered by s. 24(1)  thereof to exclude the certificate if it considered such exclusion to be appropriate and just in the circumstances, and that it was not confined to the test laid down in s. 24(2) ‑‑that the admission of the evidence would bring the administration of justice into disrepute.

 

33.              The questions put to the Court of Appeal in the stated case were as follows:

 

(1) Did the Court err in law in holding that the accused person, Paul Mathew Therens, had been detained within the meaning of Section 10  of the Canadian Charter of Rights and Freedoms ?

 

(2) Did the court err in law in holding that it had a power to exclude evidence under subsection (1)  of Section 24  of the Canadian Charter of Rights and Freedoms  whether or not admitting the evidence in question would bring the administration of justice into disrepute?

 

(3) Did the court err in law in holding that it was just and appropriate in the circumstances of this case to exclude from evidence the Certificate of Analyses tendered by the prosecution?

 

34.              At the hearing of the appeal the third question was abandoned by counsel for the Crown on the ground that it did not involve a question of law alone. A majority of the Saskatchewan Court of Appeal answered the first two questions in the negative and dismissed the appeal. Tallis J.A., with whom Bayda C.J.S. and Hall and Cameron JJ.A. concurred, held that the restraint of the respondent's liberty effected by the demand pursuant to s. 235(1)  of the Criminal Code  amounted to a detention within the meaning of s. 10  of the Charter  and that accordingly there had been an infringement or a denial of the respondent's right to be informed of his right to retain and instruct counsel without delay; and further, that the certificate of analysis could be excluded from the evidence pursuant to s. 24(1)  of the Charter , notwithstanding the terms of s. 24(2) , which refer expressly to the exclusion of evidence obtained in a manner that infringes or denies any right or freedom guaranteed by the Charter . Bayda C.J.S. wrote a separate concurring opinion with reference to the power to exclude evidence under s. 24(2) . Brownridge J.A., dissenting, held that there had not been a detention within the meaning of s. 10  of the Charter , but that in any event the exclusion of evidence as a remedy under s. 24  was governed exclusively by the terms of subs. (2) thereof.

 

                                                                    II

 

35.              In both the trial court and the Court of Appeal the issue as to whether there had been a detention turned essentially, as it has in the judgments of other courts of appeal, on the effect to be given to the decision of this Court in Chromiak v. The Queen, [1980] 1 S.C.R. 471, which dealt with a demand under s. 234.1(1)  of the Criminal Code  to provide a sample of breath into a roadside screening device and with the right to counsel guaranteed by s. 2(c) of the Canadian Bill of Rights, R.S.C. 1970, App. III. These provisions are as follows:

 

                   234.1 (1) Where a peace officer reasonably suspects that a person who is driving a motor vehicle or who has the care or control of a motor vehicle, whether it is in motion or not, has alcohol in his body, he may, by demand made to that person, require him to provide forthwith such a sample of his breath as in the opinion of the peace officer is necessary to enable a proper analysis of his breath to be made by means of an approved road‑side screening device and, where necessary, to accompany the peace officer for the purpose of enabling such a sample of his breath to be taken.

 

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

 

                                                                    ...

 

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

 

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

 

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

 

(iii) of the remedy by way of habeas corpus for the determination of the validity of his detention and for his release if the detention is now lawful;

 

36.              In Chromiak this Court unanimously held that a person who complied with a demand pursuant to s. 234.1(1)  to accompany a police officer and submit to a roadside breath test was not detained within the meaning of s. 2(c) of the Canadian Bill of Rights. The meaning of "detained" and "detention" adopted by Ritchie J., who delivered the judgment of the Court, is to be found in the following passages of his judgment at pp. 478‑79:

 

It appears to me to be obvious that the word "detention" does not necessarily include arrest, but the words "detain" and "detention" as they are used in s. 2(c) of the Bill of Rights, in my opinion, connote some form of compulsory restraint and I think that the language of s. 2(c)(iii) which guarantees to a person "the remedy of habeas corpus for the determination of the validity of his detention and for his release if the detention is not lawful", clearly contemplates that any person "detained" within the meaning of the section is one who has been detained by due process of law. This construction is supported by reference to ss. 28(2) (b), 30 , 136 (a), 248  and 250  of the Criminal Code  where the words "to detain" are consistently used in association with actual physical restraint.

 

                   I agree with the Court of Appeal that the following observations made by Pigeon J. in the Brownridge case are pertinent to s. 234.1(1)  and to the facts disclosed in this case. Notwithstanding the fact that Mr. Justice Pigeon spoke in the course of a dissenting opinion, I do not think that this statement is in any way in variance to the principle to which I have just referred. Mr. Justice Pigeon said, at pp. 943 and 944:

 

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

 

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

 

37.              In this appeal the appellant contends that the decision of this Court in Chromiak determined, in effect, that a person upon whom a demand is made pursuant to s. 235(1)  of the Criminal Code  is not detained within the meaning of s. 2(c) of the Canadian Bill of Rights and that the same conclusion should be applied to s. 10  of the Charter  because of the similar wording of the two provisions guaranteeing the right to counsel. In support of this submission the appellant adopts the reasoning on this issue to be found in the judgments of other courts of appeal, to which reference will be made shortly. It is first necessary to consider the reasons of Muir J. and of the Saskatchewan Court of Appeal in the present case.

 

38.              Muir J. distinguished Chromiak on the basis that it was concerned with a s. 234.1(1)  demand rather than a s. 235(1)  demand. In the Court of Appeal, Tallis J.A. also stressed the difference between these two provisions, particularly the more serious consequences of a s. 235(1)  demand and the greater need of legal counsel because of such consequences. He also emphasized the constitutional difference between the Canadian Bill of Rights and the Charter , which he said was "not a mere canon of construction for the interpretation of federal legislation" (p. 423). After quoting from what was said by Lord Wilberforce in Minister of Home Affairs v. Fisher, [1980] A.C. 319 at p. 328, concerning the "generous interpretation" that should be given to the Bermuda Constitution, Tallis J.A. said at pp. 423‑24:

 

                   Our nation's constitutional ideals have been enshrined in the Charter  and it will not be a "living" charter unless it is interpreted in a meaningful way from the standpoint of an average citizen who seldom has a brush with the law. The fundamental rights accorded to a citizen under Section 10 (b) should be approached on the basis of giving the word "detention" its popular interpretation, in other words its natural or ordinary meaning. The implementation and application of the Charter  should not be blunted or thwarted by technical or legalistic interpretations of ordinary words of the English language. Using this approach, our citizens will not be placed in a position of feeling that the statements in the Charter  are only rights in theory. If these rights are to survive and be available on a day‑to‑day basis we must resist the temptation to opt in favour of a restrictive approach. If a restrictive approach is adopted in defining the word "detain" then this will be tantamount to saying that the law does not recognize rights under s. 10 (b) as applying to an accused before arrest.

 

39.              On the question whether a s. 235(1)  demand effected a detention within the meaning of s. 10  of the Charter , Tallis J.A. reasoned and concluded as follows at pp. 424‑25:

 

It was clearly open to the learned trial judge to find that there was a temporary restraint falling short of formal arrest which amounted to a "detention" in the ordinary sense of the word. In the circumstances of this case, the law authorizes a peace officer, who has reasonable and probable grounds to believe that the accused has committed an offence under s. 234 or s. 236 within the preceding two hours, to exercise a temporary restraint on the liberty of the accused for the purpose of carrying out procedures authorized by law. This temporary restraint may be imposed without the necessity of a formal arrest but there is no reason why s. 10 (b) of the Charter  should not apply. An obstreperous or knowledgeable citizen might trigger his arrest and consequently the application of the Charter  by attempting to run from the peace officer or alternatively by refusing to accompany him to the location of the breathalyzer machine‑‑in this case at the police station. From the standpoint of the law and social policy, this would not be a desirable situation. On the other hand, the average citizen would acquiesce in the demand made by a peace officer rather than suffer the potential embarrassment of further proceedings that could arise. Surely the rights under s. 10 (b) of the Charter  are to be extended to the rank and file members of society who may have little contact with the justice system. When you consider the circumstances of this case and in particular the contents of the demand that was made to him, it cannot be said that the respondent accused was free to depart as he pleased. To say that he was not detained is simply a fiction which overlooks the plain meaning of words from the viewpoint of an average citizen. An officious bystander would have no difficulty in concluding that the respondent was detained and would probably feel, at the very least, that the peace officer had taken the respondent into temporary custody. While they do not deal directly with the interpretation of the word "detention" as set forth in s. 10 (b) of the Charter , many of the decided cases dealing with false arrest or false imprisonment have captured the average citizen's concept of detention in a very realistic way: vide Conn v. David Spencer Ltd., [1930] 1 D.L.R. 805, [1930] 1 W.W.R. 26, 42 B.C.R. 128, in which the plaintiff in a false imprisonment case was in a self‑service store when tapped on the shoulder by a security guard and accused of stealing a bar of soap. He was asked to go upstairs to one of the rooms. He had committed no theft but thought it well that, in view of the crowded state of the store, he should go without force. In dealing with whether the act of going to the questioning room proceeded originally from the plaintiff's own willingness, or from the guard's accusing him of theft, the court concluded the plaintiff would not be deprived of his action by going willingly to meet the charge. In dealing with the matter, the court posed the question "how is a person to know whether or not force will be used if he does not comply with the order given ... there can be a restraint of freedom without touching the person." Reference might also be made to Chaytor et al. v. London, New York & Paris Ass’n of Fashion Ltd. and Price (1961), 30 D.L.R. (2d) 527, 46 M.P.R. 151 and Lebrun v. High‑Low Foods Ltd. et al. (1968), 69 D.L.R. (2d) 433, 65 W.W.R. 353.

 

 

40.              Brownridge J.A., dissenting, held that this Court, in Chromiak, had adopted a meaning of the word "detained" in s. 2(c) of the Canadian Bill of Rights that clearly excluded a compliance with a demand pursuant to s. 235(1)  and that there was no reason not to apply that meaning to the word "detention" in s. 10  of the Charter . He said at p. 417: "I do not subscribe to the view that the Parliament of Canada, in drafting the Charter  intended to depart completely from the law as it existed the day before the Charter  became effective. In my opinion, the word `detained' as used in the Bill of Rights and as interpreted under that Act should be given the same meaning and the same interpretation under the Charter ".

 

41.              Other courts of appeal have decided that the meaning given to the word "detained" in Chromiak should be applied to the word "detention" in s. 10  of the Charter , and applying this meaning, have concluded that compliance with a s. 235(1)  demand does not result in a detention within s. 10 . See R. v. Currie (1983), 4 C.C.C. (3d) 217 (N.S.S.C.A.D.); R. v. Trask (1983), 6 C.C.C. (3d) 132 (Nfld. C.A.); Rahn v. The Queen (1984), 11 C.C.C. (3d) 152 (Alta. C.A.) (Appeals to this Court in Trask1 and Rahn2 were heard at the same time as the present appeal.) There is also commentary on Chromiak by the Ontario Court of Appeal in R. v. Simmons (1984), 11 C.C.C. (3d) 193, a case which considered whether there is a right to counsel on being subjected to a strip search pursuant to the provisions of the Customs Act, R.S.C. 1970, c. C‑40. The reasons given in these decisions in support of the opposite conclusion on the question of detention from that reached by the majority of the Saskatchewan Court of Appeal in the present case are adopted in the appellant's submissions and may be summarized as follows:

 

1 See [1985] 1 S.C.R. 655.

 

2 See [1985] 1 S.C.R. 659.

 

42.              (1) Chromiak cannot be distinguished on the basis of a supposed difference between a s. 234.1(1)  demand and a s. 235(1)  demand because (a) there is no significant difference between the two provisions, in so far as the power conferred by them to interfere with liberty or freedom of action is concerned, and (b) Ritchie J., in adopting the reasons of Pigeon J. in Brownridge v. The Queen, [1972] S.C.R. 926, and in holding that decisions with respect to s. 235(1)  were relevant to the issue before him, clearly indicated that in his opinion compliance with a s. 235(1)  demand did not amount to a detention within s. 2(c) of the Canadian Bill of Rights.

 

43.              (2) There is no basis in the different constitutional nature or status of the Charter , as compared with that of the Canadian Bill of Rights, for distinguishing Chromiak because in using the word "detention" in s. 10  of the Charter , which is in essentially the same terms as s. 2(c) of the Canadian Bill of Rights, the framers of the Charter  must be presumed to have intended to use this word in the sense given to it in Chromiak.

 

44.              (3) The guarantee in s. 10 (c) of the Charter , as in s. 2(c) of the Canadian Bill of Rights, of the right to habeas corpus to challenge the validity of a detention indicates that the restraint upon liberty effected by a s. 235(1)  demand is not one of the character or duration contemplated by these provisions.

 

45.              (4) The word "detention", as indicated in Chromiak, connotes a compulsory restraint, whereas compliance with a s. 235(1)  demand is purely voluntary.

 

46.              I agree with the contention that Chromiak is not distinguishable on the basis of a significant difference between the power conferred by s. 234.1(1)  and that conferred by s. 235(1) , in so far as the interference with liberty or freedom of action is concerned. Both provisions empower a police officer to require a person to accompany him or her and to provide a breath sample. It has been suggested that the difference in practice in the nature and duration of the interference with liberty effected by a s. 235(1)  demand and that effected by a s. 234.1(1)  demand constitutes a sufficient basis for distinguishing the two provisions in respect of the question of detention. Such a distinction was suggested by Tarnopolsky J.A., in Simmons, supra, at p. 224, where, in limiting the effect of Chromiak to a 234.1(1) demand, he said, "Chromiak deals with roadside breath tests: it does not determine whether a person is `detained' when required to submit to some form of examination on the premises of a government agency like a police station". The fact that a roadside screening test under a s. 234.1(1)  demand is generally administered in the back of a police car, whereas the breathalyzer test under a s. 235(1)  demand is generally administered in a police station, amounts to a mere difference of degree in so far as the question of detention is concerned. This difference does not in my opinion afford a principled basis for holding that a s. 235(1)  demand amounts to a detention if a s. 234.1(1)  demand does not.

 

47.              Other courts of appeal, which have come to a conclusion contrary to that of the Saskatchewan Court of Appeal in the present case on the issue of detention, have held that, notwithstanding the difference in the constitutional nature or status of the Charter  and the Canadian Bill of Rights, the word "detention" in s. 10  of the Charter  should be given the same meaning as it was given by this Court in Chromiak because of the essential similarity in the wording of the two provisions guaranteeing the right to counsel. They have reasoned that had the framers of the Charter  found the meaning and effect given to the word "detention" in Chromiak unacceptable they could easily have adopted different language as a criterion of the right to counsel. See Currie, supra, per Macdonald J.A. at p. 222; Trask, supra, per Gushue J.A. at p. 137; Rahn, supra, per Laycraft J.A. at p. 161; Simmons, supra, per Howland C.J.O. at p. 211.

 

48.              In my opinion the premise that the framers of the Charter  must be presumed to have intended that the words used by it should be given the meaning which had been given to them by judicial decisions at the time the Charter  was enacted is not a reliable guide to its interpretation and application. By its very nature a constitutional charter of rights and freedoms must use general language which is capable of development and adaptation by the courts. As Dickson J. (as he then was) said in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 155: "The task of expounding a constitution is crucially different from that of construing a statute". Even if the framers of the Charter  had reservations about the meaning given by this Court in Chromiak to the word "detained" in s. 2(c) of the Canadian Bill of Rights, assuming they have consideration to it at all, it would be quite inappropriate, and indeed impracticable, in a constitutional document of this kind, to make detailed qualifications to provide for issues such as that which arises in the present appeal. Cf. the distinction between "concepts" and "conceptions" in Dworkin, Taking Rights Seriously (1977), pp. 132‑37. That process of reconsideration must of necessity be left to the courts. Although it is clear that in several instances, as in the case of s. 10 , the framers of the Charter  adopted the wording of the Canadian Bill of Rights, it is also clear that the Charter  must be regarded, because of its constitutional character, as a new affirmation of rights and freedoms and of judicial power and responsibility in relation to their protection. This results from s. 52  of the Constitution Act, 1982 , which removes any possible doubt or uncertainty as to the general effect which the Charter  is to have by providing that it is part of the supreme law of Canada and that any law that is inconsistent with its provisions is to the extent of such inconsistency of no force and effect, and from s. 24  of the Charter , which provides that anyone whose guaranteed rights or freedoms have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. In considering the relationship of a decision under the Canadian Bill of Rights to an issue arising under the Charter , a court cannot, in my respectful opinion, avoid bearing in mind an evident fact of Canadian judicial history, which must be squarely and frankly faced: that on the whole, with some notable exceptions, the courts have felt some uncertainty or ambivalence in the application of the Canadian Bill of Rights because it did not reflect a clear constitutional mandate to make judicial decisions having the effect of limiting or qualifying the traditional sovereignty of Parliament. The significance of the new constitutional mandate for judicial review provided by the Charter  was emphasized by this Court in its recent decisions in Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, and Hunter v. Southam Inc., supra.

 

49.              Moreover, despite the similarity in the wording of s. 2(c) of the Canadian Bill of Rights and s. 10  of the Charter , there is a difference under the Charter  in the scope or content of the right to counsel and in the approach to the qualification or limitation of the right that must, I think, have an influence on the interpretation and application given to it. Section 10 (b) of the Charter  guarantees not only the right to retain and instruct counsel without delay, as under s. 2(c)(ii) of the Canadian Bill of Rights, but also the right to be informed of that right. This, in my opinion, shows the additional importance which the Charter  attaches to the right to counsel. A significant difference in the contexts of the right to counsel under the Canadian Bill of Rights and the Charter  is that under the Charter  the right is made expressly subject by s. 1  to such reasonable limits as are demonstrably justified in a free and democratic society. Thus the right is expressly qualified in a way that permits more flexible treatment of it. See R. v. Talbourdet (1984), 12 C.C.C. (3d) 173, per Cameron J.A. at p. 180, where it was suggested that had there been a similar provision in the Canadian Bill of Rights this Court might well have been able to adopt a different approach to the issue in the Chromiak case. The meaning and application given to the word "detained" in Chromiak was the only means by which reasonable limits could be placed on the right to counsel. For these additional reasons I am of the opinion, with the greatest respect for the contrary view, that the framers of the Charter , in adopting the language of s. 10 , cannot be presumed to have intended that the word "detention" would necessarily be given the meaning and application, in relation to a s. 234.1(1)  or a s. 235(1)  demand, which this Court gave to the word "detained" in Chromiak.

 

50.              Those who have come to a different conclusion on the question of detention from that of the majority of the Saskatchewan Court of Appeal in the present case have also attached particular importance to what they have perceived to be the implication of the provision for habeas corpus in s. 2(c)(iii) of the Canadian Bill of Rights and s. 10 (c) of the Charter , as indicating the kind of interference with liberty or freedom of action that is necessarily contemplated by the word "detention" in these provisions. In Chromiak, Ritchie J. saw the provision for habeas corpus as meaning that what was contemplated was a detention "by due process of law". That was presumably intended to refer to a detention in the purported exercise of lawful authority. Other judges who have stressed the significance of the provision for habeas corpus have spoken rather of the duration of the detention that was necessarily contemplated. See Macdonald J.A. in Currie, supra, at p. 230; Laycraft J.A. in Rahn, supra, at p. 161; and Howland C.J.O. in Simmons, supra, at p. 212. They have concluded that what must have been contemplated was a restraint upon liberty of sufficient duration to permit its validity to be challenged by habeas corpus. With respect, on this question I share the view of Tarnopolsky J.A., in Simmons, supra, at p. 222, where he said: "I read s. 10  as prescribing rights that are to be provided if any particular right is pertinent. Not all are needed under all circumstances. Therefore, the fact that habeas corpus might not be practically available because of the short duration of a particular detention does not detract from the fact of there being a detention." In my view, s. 10  of the Charter  must necessarily refer to a great variety of detentions of varying duration, in many of which it will not be possible to make effective use of habeas corpus because the detention will have ceased before the application can be made and determined. Habeas corpus is to lie to determine the validity of a detention where that is possible. The fact that it may not be possible in some cases, because of the limited duration of the detention, is not, in my respectful opinion, a reason for limiting the meaning of the word "detention" to detentions of a certain duration.

 

51.              In determining the meaning that should be given to the word "detention" in s. 10  of the Charter  it is necessary to consider the purpose of the section. This is the approach to the interpretation and application of the Charter  that was affirmed by this Court in Hunter v. Southam Inc., supra, in which Dickson J. said at p. 157: "Since the proper approach to the interpretation of the Charter of Rights and Freedoms is a purposive one, before it is possible to assess the reasonableness or unreasonableness of the impact of a search or of a statute authorizing the search, it is first necessary to specify the purpose underlying s. 8: in other words, to delineate the nature of the interests it is meant to protect".

 

52.              The purpose of s. 10  of the Charter  is to ensure that in certain situations a person is made aware of the right to counsel and is permitted to retain and instruct counsel without delay. The situations specified by s. 10 ‑‑arrest and detention‑‑are obviously not the only ones in which a person may reasonably require the assistance of counsel, but they are situations in which the restraint of liberty might otherwise effectively prevent access to counsel or induce a person to assume that he or she is unable to retain and instruct counsel. In its use of the word "detention", s. 10  of the Charter  is directed to a restraint of liberty other than arrest in which a person may reasonably require the assistance of counsel but might be prevented or impeded from retaining and instructing counsel without delay but for the constitutional guarantee.

 

53.              In addition to the case of deprivation of liberty by physical constraint, there is in my opinion a detention within s. 10  of the Charter  when a police officer or other agent of the state assumes control over the movement of a person by a demand or direction which may have significant legal consequence and which prevents or impedes access to counsel.

 

54.              In Chromiak this Court held that detention connotes "some form of compulsory constraint". There can be no doubt that there must be some form of compulsion or coercion to constitute an interference with liberty or freedom of action that amounts to a detention within the meaning of s. 10  of the Charter . The issue, as I see it, is whether that compulsion need be of a physical character, or whether it may also be a compulsion of a psychological or mental nature which inhibits the will as effectively as the application, or threat of application, of physical force. The issue is whether a person who is the subject of a demand or direction by a police officer or other agent of the state may reasonably regard himself or herself as free to refuse to comply.

 

55.              The two points of view on this issue are contrasted in the statement by Clement J.A. of the Alberta Court of Appeal in Chromiak, which was quoted with approval by Macdonald J.A. in Currie, and the statement by Tallis J.A. in the present case, which has been quoted above. In Chromiak (1979), 46 C.C.C. (2d) 310 at p. 318, Clement J.A. said: "Chromiak made the choice voluntarily, without any compulsion of de facto or threatened detainment, whether lawful or otherwise". In Currie, Macdonald J.A. said at p. 231: "There is here no element of involuntary restraint. His freedom of choice was not restricted‑‑he was given the option of accompanying the police or not. He chose to go with the officer without indicating any reluctance to do so and without being threatened with detainment if he refused." In the passage quoted above, Tallis J.A. expressed the contrary view, where he said: "On the other hand, the average citizen would acquiesce in the demand made by a peace officer rather than suffer the potential embarrassment of further proceedings that could arise... When you consider the circumstances of this case and in particular the contents of the demand that was made to him, it cannot be said that the respondent accused was free to depart as he pleased."

 

56.              A refusal to comply with a s. 235(1)  demand without reasonable excuse is, under s. 235(2), 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. This psychological compulsion or coercion effected by the consequence of a refusal to comply with a s. 235(1)  demand appears to be what Laskin J. (as he then was) had in mind in Hogan v. The Queen, [1975] 2 S.C.R. 574 at p. 587, where he said: "There is no doubt, therefore, that the accused was `detained' within the meaning of s. 2(c)(ii) of the Canadian Bill of Rights; he risked prosecution under s. 235(2) if, without reasonable excuse, he refused the demand which involved accompanying the peace officer to fulfil it". Any criminal liability for failure to comply with a demand or direction of a police officer must be sufficient to make compliance involuntary. This would be true, for example, of compliance where refusal to comply would amount to a wilful obstruction of a police officer in the execution of his or her duty, contrary to s. 118  of the Criminal Code .

 

57.              Although it is not strictly necessary for purposes of this case, I would go further. In my opinion, it is not realistic, as a general rule, to regard compliance with a demand or direction by a police officer as truly voluntary, in the sense that the citizen feels that he or she has the choice to obey or not, even where there is in fact a lack of statutory or common law authority for the demand or direction and therefore an absence of criminal liability for failure to comply with it. Most citizens are not aware of the precise legal limits of police authority. Rather than risk the application of physical force or prosecution for wilful obstruction, the reasonable person is likely to err on the side of caution, assume lawful authority and comply with the demand. The element of psychological compulsion, in the form of a reasonable perception of suspension of freedom of choice, is enough to make the restraint of liberty involuntary. Detention may be effected without the application or threat of application of physical restraint if the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist.

 

58.              For these reasons I am of the opinion that the s. 235(1)  demand to accompany the police officer to a police station and to submit to a breathalyzer test resulted in the detention of the respondent within the meaning of s. 10  of the Charter .

 

59.              The respondent was accordingly entitled at the time of his detention to be informed of his right to retain and instruct counsel without delay, and there was an infringement or denial of this right, unless it can be shown that the right to retain and instruct counsel (and consequently the right to be informed of such right) does not exist in the context of a s. 235(1)  demand by reason of a limit which meets the requirements of s. 1  of the Charter :

 

1. The Canadian Charter of Rights and Freedoms  guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

 

 

60.              Section 1  requires that the limit be prescribed by law, that it be reasonable, and that it be demonstrably justified in a free and democratic society. The requirement that the limit be prescribed by law is chiefly concerned with the distinction between a limit imposed by law and one that is arbitrary. The limit will be prescribed by law within the meaning of s. 1  if it is expressly provided for by statute or regulation, or results by necessary implication from the terms of a statute or regulation or from its operating requirements. The limit may also result from the application of a common law rule. Section 235(1)  and the related breathalyzer provisions of the Criminal Code  do not expressly purport to limit the right to counsel. Such a limit, if it exists, must result by implication from their terms or operating requirements. For example, the Saskatchewan Court of Appeal in Talbourdet, supra, found that such a limit resulted from the requirement under s. 234.1(1)  of the Criminal Code  that a sample of breath be provided "forthwith" into a roadside screening device. The Court held that this requirement precluded contact with counsel prior to compliance with a s. 234.1(1)  demand. In the case of a s. 235(1)  demand, the implications from the terms and operating requirements are somewhat different. A section 235(1)  demand must be made "forthwith or as soon as practicable" and the person upon whom the demand is made is required to provide a sample of breath "then or as soon thereafter as is practicable". Such samples can be used in evidence as proof of an offence under s. 234  or s. 236  of the Criminal Code  only if "each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and in any event not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken" (s. 237(1) (c)(ii)). This two‑hour operating requirement does not, as in the case of the "forthwith" requirement of a s. 234.1(1)  demand, preclude any contact at all with counsel prior to the breathalyzer test. The right, at the time of the detention effected by a s. 235(1)  demand, to be informed of the right to retain and instruct counsel without delay is not, therefore, subject to a limit prescribed by law within the meaning of s. 1  of the Charter . Whether the two‑hour operating requirement of s. 237(1)  imposes a justified limit on the nature or extent of the access to counsel that may be afforded in particular circumstances is something that need not be considered in this case.

 

                                                                   III

 

61.              It is necessary now to consider whether the evidence provided by the breathalyzer test should have been excluded, pursuant to s. 24  of the Charter , because of this infrigement or denial of the right to counsel. For convenience I set out s. 24  again as follows:

 

                   24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

 

                   (2) Where, in proceedings under subsection (1), 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.

 

62.              As indicated earlier in these reasons, the first issue under s. 24  is whether, as was held by the majority of the Saskatchewan Court of Appeal, evidence may be excluded pursuant to s. 24(1)  on the ground that it is appropriate and just in the circumstances to do so, or whether it may be excluded pursuant only to s. 24(2)  on the ground that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. Tallis J.A., with whom Hall and Cameron JJ.A. concurred, said that the view which would limit the exclusion of evidence to the terms of s. 24(2)  would in many cases leave an individual whose rights or freedoms had been infringed or denied without any suitable or effective remedy. In his separate concurring reasons on this issue, Bayda C.J.S. said that had Parliament intended that s. 24(2)  should be the exclusive basis for the exclusion of evidence because of an infringement or denial of a right or freedom guaranteed by the Charter  it would have used the word "only" after the word "excluded" in the subsection. Although it was not necessary for him to express an opinion on this issue, in view of his conclusion on the question of detention, Brownridge J.A. briefly indicated that in his opinion evidence could be excluded under s. 24  of the Charter  only if its admission would bring the administration of justice into disrepute. He said, "It appears anomalous to me that the very power which is so circumscribed in s. 24(2)  should be available to a court under s. 24(1)  without any such restriction".

 

63.              The trial judge and the majority of the Court of Appeal held that while s. 24(2)  imposed a duty to exclude evidence if its admission would bring the administration of justice into disrepute, s. 24(1)  conferred a discretion to exclude it if such exclusion appeared to the court to be appropriate and just in the circumstances. It would appear that this distinction between duty and discretion was the principal rationale for the majority view that the framers of the Charter  intended to provide two different bases for the exclusion of evidence where there has been an infringement or a denial of a guaranteed right or freedom.

 

64.              I do not find it necessary to consider whether we should look, as was suggested by counsel for the appellant, at the legislative history of s. 24  as an aid to the determination of this issue. I am satisfied from the words of s. 24  that s. 24(2)  was intended to be the sole basis for the exclusion of evidence because of an infringement or a denial of a right or freedom guaranteed by the Charter . It is clear, in my opinion, that in making explicit provision for the remedy of exclusion of evidence in s. 24(2) , following the general terms of s. 24(1) , the framers of the Charter , intended that this particular remedy should be governed entirely by the terms of s. 24(2) . It is not reasonable to ascribe to the framers of the Charter  an intention that the courts should address two tests or standards on an application for the exclusion of evidence‑‑first, whether the admission of the evidence would bring the administration of justice into disrepute, and if not, secondly, whether its exclusion would nevertheless be appropriate and just in the circumstances. The inevitable result of this alternative test or remedy would be that s. 24(2)  would become a dead letter. The framers of the Charter  could not have intended that the explicit and deliberately adopted limitation in s. 24(2)  on the power to exclude evidence because of an infringement or a denial of a guaranteed right or freedom should be undermined or circumvented in such a manner. The opening words of s. 24(2)  "Where, in proceedings under subsection (1)" simply refer, in my view, to an application for relief under s. 24(1) . They reinforce the conclusion that the test set out in s. 24(2)  is to be the exhaustive one for the remedy of exclusion of evidence. I conclude, therefore, that the Saskatchewan Court of Appeal erred in law in affirming the exclusion of the evidence provided by the breathalyzer test on the ground that it was appropriate and just in the circumstances, within the meaning of s. 24(1)  of the Charter .

 

                                                                   IV

 

65.              It is necessary, then, to consider the meaning of the test or standard prescribed by s. 24(2)  and its application to the facts as established by the record in this case. There are two requirements for the exclusion of evidence pursuant to s. 24(2) : (a) that the evidence has been obtained in a manner that infringed or denied a right or freedom guaranteed by the Charter ; and (b) that, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute. The first requirement suggests that there must be some connection or relationship between the infringement or denial of the right or freedom in question and the obtaining of the evidence the exclusion of which is sought by the application. Some courts have held, or appear to have assumed, that the relationship must be one of causation, similar to the "but for" causation requirement of tort law. (See Fleming, The Law of Torts, (6th ed. 1983) p. 171.) This was essentially the view applied by Gushue J.A. on behalf of the Newfoundland Court of Appeal in R. v. Trask, supra, where he said at p. 137:

 

                   The evidence was not obtained in contravention of the Charter . It was properly obtained in accordance with the provisions of the Criminal Code . There is no evidence that the accused had any reasonable excuse to refuse to provide samples of his breath. If he had been informed of his right to retain and instruct counsel and had indeed consulted counsel, counsel would have undoubtedly advised him of his obligation to provide the samples demanded.

 

66.              In my opinion the words "obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter ", particularly when they are read with the French version, obtenus dans des conditions qui portent atteinte aux droits et libertés garantis par la présente charte, do not connote or require a relationship of causation. It is sufficient if the infringement or denial of the right or freedom has preceded, or occurred in the course of, the obtaining of the evidence. It is not necessary to establish that the evidence would not have been obtained out for the violation of the Charter . Such a view gives adequate recognition to the intrinsic harm that is caused by a violation of a Charter  right or freedom, apart from its bearing on the obtaining of evidence. I recognize, however, that in the case of derivative evidence, which is not what is in issue here, some consideration may have to be given in particular cases to the question of relative remoteness.

 

67.              In the result, I am of the opinion that the evidence represented by the certificate of analysis in this case was obtained in a manner that infringed or denied the respondent's right to be informed of his right to retain and instruct counsel without delay and thus meets the first requirement under s. 24(2) .

 

68.              The meaning and application of the words in s. 24(2) , "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", has been the subject of considerable judicial and academic commentary, which has looked for guidance not only to the words of s. 24(2)  but to a variety of sources, including the common law respecting the exclusion of illegally obtained evidence in Canada, England and other jurisdictions of the Commonwealth, experience with the American "absolute" exclusionary rule, various recommendations for change in the law prior to the Charter , the judgments of Estey J. and Lamer J. in Rothman v. The Queen, [1981] 1 S.C.R. 640, and the legislative history of s. 24(2) .

 

69.              On the whole, courts of appeal have adopted, in some cases with certain reservations, what has come to be known as the "community shock" test suggested by Lamer J. in Rothman. See R. v. Collins (1983), 5 C.C.C. (3d) 141 (B.C.C.A.); R. v. Cohen (1983), 5 C.C.C. (3d) 156 (B.C.C.A.); R. v. Stevens (1983), 7 C.C.C. (3d) 260 (N.S.S.C.A.D.); R. v. Chapin (1983), 7 C.C.C. (3d) 538 (Ont. C.A.); R. v. Manninen (1983), 8 C.C.C. (3d) 193 (Ont. C.A.); and R. v. Simmons, supra.

 

70.              The issue in Rothman was the admissibility of a statement made by the accused while he was in his cell, and after he had indicated to the police that he did not wish to make a statement to a police officer posing as a truck driver detained for a traffic violation. The majority of this Court held that the statement by the accused was voluntary and therefore admissible. Lamer J., while agreeing in the result, held that a statement, although elicited under circumstances which would not render it inadmissible, should nevertheless be excluded if its use in the proceedings would, as a result of what was said or done by any person in authority in eliciting the statement, bring the administration of justice into disrepute. He held that what would bring the administration of justice into disrepute would be police conduct that shocked the community.

 

71.              Estey J., dissenting, with whom Laskin C.J.C. concurred, held that the statement should be ruled inadmissible because it was given in circumstances which would bring the administration of justice into disrepute. The test of what would bring the administration of justice into disrepute, in his view, was what would be prejudicial to the public interest in the integrity of the judicial process.

 

72.              The test suggested by Estey J. has been perceived as a less restrictive one than that suggested by Lamer J., partly, it would seem, because it led to a different conclusion, on the facts of the case, as to whether the police conduct would bring the administration of justice into disrepute.

 

73.              In Cohen, supra, Anderson J.A., dissenting, said that he favoured the test suggested by Estey J. Several academic commentaries have expressed or implied agreement with this view.

 

74.              In Manninen, Chapin, and Simmons, supra, the Ontario Court of Appeal, while acknowledging that what would shock the community would clearly bring the administration of justice into disrepute, indicated that it did not think the application of the words in s. 24(2)  should be limited to this test. In Simmons, Howland C.J.O. said at p. 218:

 

                   If the evidence is obtained in such a manner as to shock the Canadian community as a whole, it would no doubt be inadmissible as bringing the administration of justice into disrepute. There may, however, be instances where the administration of justice is brought into disrepute within s. 24(2)  without necessarily shocking the Canadian community as a whole. In my opinion, it is preferable to consider every case on its merits as to whether it satisfies the requirements of s. 24(2)  of the Charter  and not to substitute a "community shock" or any other test for the plain words of the statute.

 

75.              I agree, with respect, that we should not substitute for the words of s. 24(2)  another expression of the standard, drawn from a different jurisprudential context. The values which must be balanced in making the determination required by s. 24(2)  have been placed in a new relationship of relative importance by the constitutional status given to guaranteed rights and freedoms by the Charter . The central concern of s. 24(2)  would appear to be the maintenance of respect for and confidence in the administration of justice, as that may be affected by the violation of constitutional rights and freedoms. There is clearly, of course, by implication, the other value which must be taken into consideration in the application of s. 24(2) ‑‑that is, the availability of otherwise admissible evidence for the ascertainment of truth in the judicial process, particularly in the administration of the criminal law. The issue under s. 24(2)  is the circumstances in which that value must yield to the protection and enforcement of constitutional rights and freedoms by what may be in a particular case the only remedy.

 

76.              The factors or circumstances to be taken into consideration in determining whether the admission of evidence would bring the administration of justice into disrepute have also been the subject of considerable commentary by courts and scholars. It would not be wise to attempt an exhaustive identification of the relevant factors in this case. However, certain of them have, in my opinion, been properly affirmed in the cases as being of particular relevance and weight, especially in the context of the right under s. 8  of the Charter  to be secure against unreasonable search and seizure. In this context the two principal considerations in the balancing which must be undertaken are the relative seriousness of the constitutional violation and the relative seriousness of the criminal charge. The relative seriousness of the constitutional violation has been assessed in the light of whether it was committed in good faith, or was inadvertent or of a merely technical nature, or whether it was deliberate, wilful or flagrant. Another relevant consideration is whether the action which constituted the constitutional violation was motivated by urgency or necessity to prevent the loss or destruction of the evidence.

 

77.              The application of these factors to a denial of the right to counsel involves, in my view, a different balance because of the importance of that right in the administration of criminal justice. In my opinion, the right to counsel is of such fundamental importance that its denial in a criminal law context must prima facie discredit the administration of justice. That effect is not diminished but, if anything, increased by the relative seriousness of the possible criminal law liability. In view, however, of the judgment of this Court in Chromiak, the police officer in this case was in my opinion entitled to assume in good faith that the respondent did not have a right to counsel on a demand under s. 235(1)  of the Criminal Code . Because of this good faith reliance, I am unable to conclude, having regard to all the circumstances, as required by s. 24(2)  of the Charter , that the admission of the evidence of the breathalyzer test in this particular case would bring the administration of justice into disrepute. See Tarnopolsky J.A. in Simmons, supra, at pp. 228‑29. The evidence cannot, therefore, be excluded.

 

78.              As this conclusion indicates, I am also of the opinion that the question whether evidence must be excluded because, having regard to all the circumstances, its admission would bring the administration of justice into disrepute is a question of law which may be determined by a court without evidence of the actual or likely effect of such admission on public opinion. Obviously the application of the relevant factors or considerations will turn in some cases on matters of fact which must be established by evidence, but the meaning and application of the standard in s. 24(2)  is, like other questions of admissibility of evidence, a question of law. A court is the best judge of what would bring the administration of justice into disrepute. There is no reliable evidentiary basis for determining what the actual effect on public opinion would be of the admission of evidence in the circumstances of a particular case. The suggestion of opinion polls (see D. Gibson, "Determining Disrepute: Opinion Polls and the Canadian Charter of Rights and Freedoms " (1983), 61 Can. Bar Rev. 377) encounters, in my opinion, two fatal objections. The first is the requirement which Professor Gibson refers to as "specificity". How could "all the circumstances" of a case and the necessary balancing exercise be conveyed in an opinion poll or survey? The second objection is the cost of requiring such evidence, which, since it would have to be borne by the person whose constitutional right or freedom had been violated, would surely be a further factor reducing availability of the remedy provided by s. 24(2) . The exclusion of evidence under s. 24(2)  does not, as has been suggested by some, involve the exercise of a discretion. Section 24(2)  involves the application of a broad test or standard, which necessarily gives a court some latitude, but that is not, strictly speaking, a discretion. A discretion exists where there is a choice to do one thing or another, not merely because what is involved is the application of a flexible standard. Under the terms of s. 24(2) , where a judge concludes that the admission of evidence would bring the administration of justice into disrepute, he or she has a duty, not a discretion, to exclude the evidence. This distinction is of some importance, of course, with reference to the scope of review of a determination under s. 24(2) .

 

79.              I would accordingly allow the appeal, set aside the judgments of the Saskatchewan Court of Appeal and Muir J., and order a new trial.

 

Appeal dismissed, McIntyre and Le Dain JJ. dissenting.

 

                   Solicitor for the appellant: Richard Gosse, Regina.

 

                   Solicitors for the respondent: Robert Skinner and Vikas Khaladkar, Regina.

 

                   Solicitor for the intervener the Attorney General of Canada: Roger Tassé, Ottawa.

 

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

 

                   Solicitor for the intervener the Attorney General of Quebec: The Attorney General of Quebec, Ste‑Foy.

 

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