Supreme Court Judgments

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R. v. Schmautz, [1990] 1 S.C.R. 398

 

Jerry Ervin Schmautz    Appellant

 

v.

 

Her Majesty The Queen    Respondent

 

indexed as:  r. v. schmautz

 

File No.:  20904.

 

1989:  November 9; 1990:  March 15.

 

Present:  Dickson C.J. and Lamer, La Forest, Sopinka, Gonthier, Cory, McLachlin JJ.

 

on appeal from the court of appeal for british columbia

 

    Constitutional law -- Charter of Rights  -- Right to counsel -- Meaning of "detention" -- Failure to comply with breathalyzer demand -- Whether accused detained -- Canadian Charter of Rights and Freedoms, s. 10 (b) -- Criminal Code, R.S.C. 1970, c. C-34, s. 235.

 

    Constitutional law -- Charter of Rights  -- Right to counsel -- Police informing accused of his right to counsel in the course of the investigation and prior to the actual detention -- Whether police complied with the requirements of s. 10 (b) of the Canadian Charter of Rights and Freedoms  -- If not, whether evidence should be excluded under s. 24(2)  of the Charter .

 

    In the course of their investigation on a hit and run accident, two police officers went to the appellant's residence.  They told him that they were investigating an accident and that he had the right to remain silent and the right to retain and instruct counsel.  For approximately ten minutes, the police questioned the appellant about the accident and the amount of alcohol he had consumed.  One of the police officers then demanded that the appellant accompany him to the police station so that a sample of his breath could be taken.  The appellant refused and was advised that he would be charged with the offence of failing to comply with the breathalyzer demand pursuant to s. 235(2)  of the Criminal Code .  The appellant ushered the police officers out of his house and they left.  The appellant was later convicted in Provincial Court of the s. 235(2)  offence, and both the County Court and the Court of Appeal upheld his conviction.  This appeal is to determine (1) whether the appellant was detained at any time during the investigation and, in particular, when the breathalyzer demand was given to him; and (2) if so, whether the Charter  warning initially given to the appellant complied with s. 10 (b) of the Canadian Charter of Rights and Freedoms .

 

    Held:  The appeal should be dismissed.

 

    Per Dickson C.J. and La Forest, Sopinka, Gonthier, Cory and McLachlin JJ.:  The breathalyzer demand made by the police officer pursuant to s. 235(1)  of the Criminal Code  resulted in a detention of the appellant within the meaning of s. 10 (b) of the Charter .  There is 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.  The necessary element of compulsion or coercion to constitute a detention may arise from criminal liability for refusal to comply with a demand or direction, or from a reasonable belief that one does not have a choice as to whether or not to comply.  Here, the criminal liability for refusal to comply constitutes the necessary element of compulsion or coercion required for a finding of detention.  The detention is not dependent upon compliance by the recipient of the demand.  The fact that the appellant was at no time physically prevented from using his telephone to contact a lawyer is beside the point.  Physical constraint bears no relation with the kind of detention arising from criminal liability for refusal to comply with a demand.  What this kind of detention involves is the psychological or moral constraint resulting from the demand.

 

    The Charter  warning given to the appellant at the outset of the questioning amounted, in this case, to sufficient compliance with s. 10 (b) of the Charter .  In order to fulfill the purpose of s. 10 , the detainee must be made aware of the right to counsel and be permitted to retain and instruct counsel without delay with respect to his detention and the reason therefor.  It follows that there must be a close factual connection or linkage relating the warning to the detention and the reason therefor.  As a general rule, there is nothing that prohibits an investigating officer from giving such a warning when the investigation begins or during its course.  The existence of the required link will depend on the facts of each case.  Here, by serving both the police and the Charter  warnings on the appellant at the outset of the short interview, the police officers alerted him that he was suspected and was being investigated in relation to a serious offence.  The situation that arose with the breathalyzer demand was directly connected to the investigation.  It was part of a single incident at which the appellant was fully made aware of his rights.

 

    Per Lamer J.:  The right to retain and instruct counsel guaranteed by s. 10 (b) of the Charter  arises "on arrest or detention".  These words impose upon the police the obligation to inform an individual of his right to counsel once that person has been told that he is under arrest or detained and the reasons therefor.  The arrested or detained person must know the reason for his arrest or detention when he evaluates the necessity to avail himself of his right to counsel.  He must also be in a position to give all the relevant information to his counsel, so that his counsel may give him relevant and accurate advice.  Here, the Charter  warning given to the appellant prior to the breathalyzer demand did not constitute compliance with s. 10 (b).  It is the fact of the appellant's detention brought about by the breathalyzer demand that triggered the s. 10 (b) rights.  A "close factual connection" between the Charter  warning and the detention is not sufficient to comply with the words and purpose underlying s. 10 .

 

    The factual connection between the Charter  warning and the detention, however, constitutes one of the factors to be balanced when deciding to admit or exclude the evidence under s. 24(2)  of the Charter .  In this case, the evidence of the appellant's refusal to comply following the breathalyzer demand should not be excluded.  A factual connection existed between the offence of hit and run and that of refusal to comply with a breathalyzer demand; the appellant was never physically "detained"; the police officers acted in good faith throughout the proceedings and the appellant did not tender any evidence showing that he would have exercised his right to counsel had he been told again of that right.

 

Cases Cited

 

By Gonthier J.

 

    Applied:  R. v. Thomsen, [1988] 1 S.C.R. 640; considered:  R. v. Therens, [1985] 1 S.C.R. 613; distinguished:  R. v. Black, [1989] 2 S.C.R. 138; R. v. Brown (1986), 28 C.R.R. 170; referred to:  Trask v. The Queen, [1985] 1 S.C.R. 655; Rahn v. The Queen, [1985] 1 S.C.R. 659; R. v. Manninen, [1987] 1 S.C.R. 1233; R. v. Debot, [1989] 2 S.C.R. 1140.

 

By Lamer J.

 

    Referred to:  R. v. Therens, [1985] 1 S.C.R. 613; R. v. Black, [1989] 2 S.C.R. 138; R. v. Collins, [1987] 1 S.C.R. 265.

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms, ss. 10 , 24(2) .

 

Criminal Code, R.S.C. 1970, c. C-34, s. 235 [rep. & sub. 1974-75-76, c. 93, s. 16].

 

    APPEAL from a judgment of the British Columbia Court of Appeal (1988), 24 B.C.L.R. (2d) 273, [1988] 4 W.W.R. 193, 41 C.C.C. (3d) 449, 4 M.V.R. (2d) 1, dismissing the accused's appeal from a judgment of Fisher Co. Ct. J.[1], affirming the accused's conviction for failing to comply with a breathalyzer demand[2].  Appeal dismissed.

 

    Glen Buckley, for the appellant.

 

    Alexander Budlovsky, for the respondent.

 

//Gonthier J.//

 

    The judgment of Dickson C.J. and La Forest, Sopinka, Gonthier, Cory and McLachlin JJ. was delivered by

 

    Gonthier J. -- The appellant was convicted in the Provincial Court of British Columbia for failing to comply with a breathalyzer demand in contravention of s. 235(2)  (now s. 254(5)) of the Criminal Code, R.S.C. 1970, c. C-34 (as amended by S.C. 1974-75-76, c. 93, s. 16).  The circumstances in which the appellant was subjected to the demand raise the issue of whether s. 10  of the Canadian Charter of Rights and Freedoms  was violated.

 

I - The Facts

 

    On the evening of August 1, 1985, a hit and run accident occurred in Delta, British Columbia.  Constable Walden, of the Delta Police Force, attended at the accident scene and observed marks of yellow paint along the side of the bronze car which had been hit.  On the basis of some information received, Constable Walden and Corporal Holloway went to a nearby residence where they noticed a yellow van with damage to the front passenger side.  On the damaged part of the van, they observed traces of bronze paint.  The engine of the van was still warm.

 

    At about 9:55 p.m., the two officers knocked upon the door of the residence which the appellant opened.  They asked him if they could come in and he agreed.  They told him that they were investigating a hit and run accident which had occurred between 9:00 and 9:30 p.m.  They also told him that he had the right to remain silent and that he had the right to retain and instruct counsel.  The two police officers questioned the appellant for about ten minutes, first about the accident, and then about whether, when, and where he had been drinking.  The appellant said he had drunk a little at an inn and a lot after he got home.  Following that answer, one of the police officers demanded that the appellant accompany him for the purpose of enabling breathalyzer samples to be taken.  The following "breathalyzer demand" was read to the appellant:

 

I have reasonable and probable grounds to believe that you within the preceding two hours have committed an offence under Section 234  or 236  of the Criminal Code .  I hereby demand that you provide now or as soon as is practicable such samples of your breath as are necessary to enable a proper analysis to be made to determine the proportion, if any, of alcohol in your blood and to accompany me for the purpose of enabling such samples to be taken.

 

No Charter warning was given at that point.  The appellant's reply to the demand was:  "I'm not going".  He was advised that he was under the obligation to go, to which he replied:  "You'd better get a lot of guys".  He was then advised that he would be charged with the offence of failing to comply with the breathalyzer demand and that he would receive a summons therefor.  The appellant then ushered the police officers out of his house and they left.

 

    The appellant's summary conviction appeal to the County Court was dismissed, and so was his further appeal to the Court of Appeal for British Columbia.

 

II - The Issues

 

    The appellant raises the following issues on appeal:

 

    1.  Was the appellant detained at any time during the investigation and in particular when the breathalyzer demand was given to him?

 

    2.  If the appellant was detained, was the advice initially given to the appellant of his right to retain and instruct counsel, in the circumstances of this case, sufficient compliance with s. 10 (b) of the Charter ?

 

III - The Charter  and Legislative Provisions

 

    The relevant Charter  provision is as follows:

 

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.

 

The breathalyzer demand was governed at the time of the alleged offence by s. 235  of the Criminal Code :

 

    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.

 

    (2)  Every one who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peace officer under subsection (1) is guilty of an indictable offence or an offence punishable on summary conviction and is liable

 

(a) for a first offence, to a fine of not more than two thousand dollars and not less than fifty dollars or to imprisonment for six months or to both;

 

(b) for a second offence, to imprisonment for not more than one year and not less than fourteen days; and

 

(c) for each subsequent offence, to imprisonment for not more than two years and not less than three months.

 

IV - The Judgments Below

 

Provincial Court of British Columbia

 

    The trial judge found that the appellant was advised of his rights on detention, conforming to the Charter  requirement.  He was of the opinion that since the Charter  warning was given during the course of an investigation shortly before the demand, it was not necessary to repeat such a warning after the demand.

 

County Court of Westminster

 

    The summary conviction appeal judge found that a Charter  warning was given to the appellant and that it was open to the trial judge to decide that the making of a demand for a breath sample constituted a detention which would give effect to such a warning.  In considering the proximity in time between the warning and the demand, he found no error in the trial judge's conclusion that a sufficient warning had been given to the appellant.

 

Court of Appeal

 

    Wallace J.A.

 

    Wallace J.A. found the appellant's refusal to submit to the demand to be compelling evidence that there was no form of coercion or compulsion normally required to constitute an interference with the liberty or freedom of action.  Therefore, there was no detention within the meaning of s. 10  of the Charter .  Referring to the reasons for judgment of Le Dain J. in R. v. Therens, [1985] 1 S.C.R. 613, he stated that in determining the meaning to be given to the word "detention", the bottom line is that there must be some form of compulsion or coercion.  Going back to the facts of the case, Wallace J.A. then stated:

 

    In this case, the appellant, upon having the demand read to him, considered himself free to refuse to comply with the demand, free to usher the officers from his home and, one can speculate, free to sit by his fireside and consume more alcohol or phone his lawyer should he see fit to do so.

 

    ((1988), 24 B.C.L.R. (2d) 273, at p. 297.)

 

He admitted that the Therens case is authority for the proposition that there is detention within the meaning of s. 10  of the Charter  when a person, in response to a demand under s. 235(1)  (now s. 254(3) ) of the Criminal Code , submits or acquiesces in the deprivation of his liberty, reasonably believing that he has no choice to do otherwise, even though there has been no application or threat of physical restraint.  Wallace J.A. did not, however, consider Therens to be authority for the proposition that "detention" exists for the person who, upon receiving a demand under s. 235 , does not consider that he or she is under any physical, psychological or moral compulsion to submit to or acquiesce with the demand and who continues to conduct himself or herself in any way he or she considers appropriate without intervention or restraint by the police officers.  He added, at p. 301:

 

    It is to be noted that, while the consequence of physical constraint can be assessed objectively, psychological restraint is of a subjective nature and the court can only presume that a person who has complied with the demand has reacted as the average law-abiding citizen would, under a sense of legal or moral compulsion.  This presumption is negated where, as in the present case, the person's conduct clearly indicates he does not consider himself to be subject to any restraint or deprivation of liberty.

 

Wallace J.A. consequently concluded that the appellant was not detained at any time relevant to this case.

 

    He further held that even if the appellant was detained at the time the breathalyzer demand was made, he was given a sufficient warning under s. 10 (b) of the Charter .  As a result, the appellant was fully aware, at all relevant times, of his right to obtain and instruct counsel without delay.  The mere fact that the warning was given in the course of the investigation, prior to the actual detention, did not defeat the purpose of s. 10 (b) in this case.

 

    Taggart J.A. (concurring opinion)

 

    Taggart J.A. agreed with the conclusions of Wallace J.A. and reiterated that the appellant, in refusing to comply with the demand for a breath sample, avoided crossing the threshold of detention.  He also held, it seems, that in any event, the warning initially given was sufficient in the circumstances of the case.

 

    Lambert J.A. (dissenting)

 

    Lambert J.A. was of the opinion that the making of a breathalyzer demand under s. 235(1)  of the Criminal Code  in itself gives rise to a detention.  Referring to the Therens case, he said that Le Dain J. spoke of three forms of compulsion which can give rise to a detention:  control by actual constraint; assumption of control by a demand or direction which may have significant legal consequences and which prevents or impedes access to counsel; and psychological control.  Lambert J.A. concluded that the detention that comes about as a result of a demand under s. 235(1)  is detention in the second category.  In this kind of detention, the reaction of the person to the demand is irrelevant.  Lambert J.A. concluded that in the present case, the appellant was subject to a detention when the breathalyzer demand was made to him.

 

    Lambert J.A. then applied what he referred to as a purposive approach and found that s. 10  requires that the information with respect to the reason for the detention be linked with the information about the right to retain and instruct counsel under s. 10 (b).  A review of the evidence led him to conclude that there was no linkage in this case.  He said, at p. 292:

 

The information and warnings given to [the appellant] ten minutes before the breathalyzer demand, with respect to a motor vehicle accident investigation, did not inform him about the breathalyzer demand or about the consequences of waiving his right to counsel with respect to a breathalyzer demand, and so did not constitute compliance with s. 10 (b) for the purposes of the detention brought about by the breathalyzer demand.  The fact that there was only one single investigation does not mean that one Charter  warning, given at the outset, was a sufficient compliance with s. 10 (b).  It is a detention, not an investigation, that gives rise to the s. 10 (b) rights.

 

Lambert J.A. directed the entry of a verdict of acquittal, seemingly relying on Therens as regards the exclusion of the evidence under s. 24  of the Charter .

 

V - Analysis

 

    I propose to deal first with the issue of whether, on the facts of this case, the appellant was detained at some point.  My answer being in the affirmative, I will then turn to the issue of whether the warning initially given to the appellant was sufficient.

 

A.  The Issue of Detention

 

    Both parties have agreed that the appellant was not detained when the police officers attended at his house in the course of their investigation of the hit and run accident.  The issue in the present case is whether the appellant was detained as a result of the breathalyzer demand.

 

    The leading case on the meaning of the word "detention" found in s. 10  of the Charter  is Therens.  Le Dain J., dissenting in the result, wrote for Dickson C.J. and McIntyre and Lamer JJ. on the issue of whether Mr. Therens had been detained by reason of a breathalyzer demand to which he acquiesced.  Deciding that there had indeed been a detention, Le Dain J. stated, at pp. 641-42, what has now become the ultimate reference on the subject:

 

    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.

 

    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.

 

    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.

 

Speaking more particularly of a Criminal Code  demand for the taking of a breath sample, he added the following, at p. 643:

 

    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 Court has applied this same rationale in two other judgments released together with Therens, namely:  Trask v. The Queen, [1985] 1 S.C.R. 655, and Rahn v. The Queen, [1985] 1 S.C.R. 659.  In all three cases, the breathalyzer demand was complied with by the recipient.  In the Therens case, it was said, at p. 644, that "[d]etention 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."  (Emphasis added.)  In the present case, the appellant positively refused to accompany the peace officers to the police quarters so that a sample of his breath could be taken.

 

    The majority in the Court of Appeal below made the assumption that under the rule in Therens, compliance to the breathalyzer demand is required from the individual to whom it is directed before one can speak of a detention.  Wallace J.A. puts it as follows, at p. 298:

 

    In summary, it is my view that the judgment of Le Dain J. in the Therens case is authority for the proposition that there is detention within the meaning of s. 10  when a person, in response to a demand under s. 235(1)  of the Criminal Code , submits or acquiesces in the deprivation of his liberty, reasonably believing that he has no choice to do otherwise, even though there has been no application or threat of physical restraint.  I do not consider Therens to be authority for the proposition that "detention" exists for the person who, upon receiving a demand under s. 235 , does not consider that he is under any physical, psychological or moral compulsion to submit to or acquiesce with the demand and who continues to conduct himself in any way he considers appropriate without intervention or restraint by the police officers.

 

This view was later rejected by this Court in R. v. Thomsen, [1988] 1 S.C.R. 640.  In that case, the accused was directed a formal "A.L.E.R.T." demand requiring that he provide a sample of his breath for the roadside screening device.  The accused refused and was given an appearance notice for the offence of failing to comply with such a demand.  Le Dain J., writing for a unanimous Court, ventured to restate as follows, at p. 649, what he considered to be the essentials of his reasons in Therens:

 

    1.  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.

 

    2.  In addition to the case of deprivation of liberty by physical constraint, there is 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.

 

    3.  The necessary element of compulsion or coercion to constitute a detention may arise from criminal liability for refusal to comply with a demand or direction, or from a reasonable belief that one does not have a choice as to whether or not to comply.

 

    4.  Section 10  of the Charter  applies to a great variety of detentions of varying duration and is not confined to those of such duration as to make the effective use of habeas corpus possible.

 

Le Dain J. then stated that the Criminal Code  demand directed by the peace officer to the accused to accompany him to his car and to provide a sample of breath constituted detention for the purposes of s. 10  of the Charter , even if the demand was not complied with, that is, even if the accused felt free to refuse to give the sample.  Le Dain J. concluded, at p. 650:

 

    Thus the appellant had the right, upon being detained by the s. 234.1(1) demand and before responding to that demand, to retain and instruct counsel without delay and to be informed of that right, and there was an infringement of it, unless the right is subject, in the case of a s. 234.1(1) demand, to a reasonable limit prescribed by law that is demonstrably justified in a free and democratic society, within the meaning of s. 1  of the Charter .  [Emphasis added.]

 

It is the fact that criminal liability may result from a refusal which constitutes the necessary element of compulsion or coercion required for a finding of detention.  The detention is not and cannot be dependent upon compliance by the recipient of the demand.  The contrary view, with respect, would create the impossible concept of a wilful detention, that is, a detention arising not from the state action but from the subjective will of the recipient who would put himself into a state of detention by "choosing" to comply with the demand.  As Lambert J.A. pointed out in the Court of Appeal below, the Kafkaesque result would be that a person complying with the demand is entitled to a warning that he or she may retain counsel so as to be advised that he or she has acted lawfully, whereas a person ignorant of the consequences who refuses to comply has no right to be told that he or she can retain counsel, so to be advised that he or she had violated the law and is likely to be prosecuted.  Such a result cannot stand.

 

    It was urged before this Court that, under the rule in Therens, the control of the state over the movement of a person through a demand to which significant legal consequences are attached must have the actual effect of preventing or impeding access to counsel in order to amount to a detention under s. 10  of the Charter .  The relevant passage of Therens was restated as follows in Thomsen, at p. 649:

 

    In addition to the case of deprivation of liberty by physical constraint, there is 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.  [Emphasis added.]

 

At first glance, it may seem difficult to admit in this case that the state assumed control over the movement of the appellant so as to prevent him from instructing counsel.  In Thomsen, the detainee was faced with the demand on the roadside and was forced into making a decision as to whether or not he should blow in the screening device, with no material possibility to have access to counsel.  In the present case, the respondent argued, the appellant had access to his own telephone and was free to use it at all times.

 

    It might be true that the appellant was at no time physically prevented from using his telephone, but this is clearly beside the point.  Physical constraint bears no relation with the kind of detention arising from criminal liability for refusal to comply with a demand.  What this kind of detention involves is the psychological or moral constraint resulting from the demand.  In Therens and Thomsen, Le Dain J. held that criminal liability for refusal to comply constitutes the effective compulsion or coercion required for a finding of detention.  The requirement that access to counsel must be prevented or impeded is also fulfilled by virtue of that fact of criminal liability.  The breathalyzer demand automatically and instantly puts the person to whom it is directed into a unique situation of legal jeopardy in which he or she is required to provide forthwith an answer which in itself might be a criminal offence.  In this context, the right to be informed of the right to counsel takes on a particular meaning and I think that a purposive approach to s. 10  of the Charter  requires that the recipient of the demand be aware of his right to counsel.

 

    There was another argument relating to Therens in the court below which was later settled in Thomsen.  According to Wallace J.A., Estey J., with whom Beetz, Chouinard and Wilson JJ. concurred in Therens, did not agree with Le Dain J. that the mere giving of the demand constituted detention in that case.  Again, this assumption has become pointless after Thomsen, in which a coram of seven (of which Beetz, Estey, Wilson and Le Dain JJ. were part) decided that the giving of the demand constituted detention, regardless of the response thereto.

 

    I conclude, therefore, that the appellant was detained as a result of the breathalyzer demand made upon him.  I now turn to the issue of whether the appellant was properly advised of his right to counsel.

 

B.  Sufficiency of the Charter  Warning

 

    The appellant was informed of his right to retain and instruct counsel when the police officers arrived at his home in the course of their investigation of the hit and run accident.  After a few questions pertaining to the accident and the amount of alcohol the appellant had consumed, the breathalyzer demand was read.  Ten minutes had elapsed between the warning and the reading of the demand.  This Court must decide whether this Charter  advice was adequate and effective with respect to the later detention.  Such a determination is dependent on the circumstances of each case.

 

    The appellant contends that the warning he was given at the outset of the questioning was not sufficient under s. 10  because he was not in any legal jeopardy or detention at that moment.  He argues that in order to comply with s. 10 , the warning should have been given at the moment when detention commenced because that is when he became aware of his legal jeopardy, and could appreciate the significance of deciding whether he should exercise his right.  The appellant adopts in this regard the reasoning of Lambert J.A., dissenting in the Court of Appeal below.

 

    In the opinion of Lambert J.A., the warning must be associated with and linked to the specific detention in order to make the right to counsel meaningful.  In his view, the warning initially given to the appellant at the beginning of the investigation was not sufficient for the purposes of the later detention because in the meantime, the legal consequences of the options open to him changed.  In his opinion, there should have been a second advice accompanying the breathalyzer demand, the first warning not being linked with the detention.

 

    Lambert J.A. referred in his reasons to R. v. Brown (1986), 28 C.R.R. 170, in which the British Columbia Supreme Court held that supplementary advice was required because of a change in the purpose of the investigation during the detention.  In that case, the inquiry regarding the aggravated assault with which the accused had been charged changed into an inquiry regarding a murder.  The Court held that a new detention occurred when the accused was interviewed in respect of the murder charge and that there should have been a second Charter  warning at that moment.

 

    This Court likewise found in R. v. Black, [1989] 2 S.C.R. 138, that a new right to counsel arises when the extent of the legal jeopardy changes significantly.  In Black, the accused was arrested for attempted murder following the stabbing of a neighbor.  Upon her arrival at the police station, she was informed of her right to counsel and was given the opportunity to contact her lawyer, which she did.  Two hours later, she was informed that the victim had died and that she would be charged with first degree murder.  The officers gave her a second warning and opportunity to use the phone but she was unable to contact her lawyer in the middle of the night.  The police officers continued the questioning and an incriminating statement followed.  This Court decided that the second warning and opportunity was indeed necessary and that continuing the questioning was violative of the rule laid down in R. v. Manninen, [1987] 1 S.C.R. 1233.  Wilson J. found that the right to retain and instruct counsel and to be informed thereof must be related to the right to be informed of the reasons for the arrest or detention.  Writing for the Court, Wilson J. stated, at pp. 152-53:

 

    Moreover, s. 10(b) should not be read in isolation.  Its ambit must be considered in light of s. 10(a).  Section 10(a) requires the police to advise an individual who is arrested or detained of the reasons for such arrest or detention.  The rights accruing to a person under s. 10(b) arise because he or she has been arrested or detained for a particular reason.  An individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy.  [Emphasis added.]

 

It follows that there must be a close factual connection or linkage relating the warning to the detention and the reason therefor.  Quite obviously, a Charter  warning cannot amount to sufficient compliance no matter when and in what circumstances it is read.  It must satisfy the purpose of s. 10 , that is, the detainee must be made aware of the right to counsel and be permitted to retain and instruct counsel without delay with respect to his detention and the reason therefor.

 

    In this respect, the fact that the advice is given before detention is not determinative.  As Wallace J.A. pointed out in the Court of Appeal below, while s. 10 (b) does not require the state to inform a person under mere investigation of his or her right to retain and instruct counsel before he or she is detained or arrested, there is nothing that prohibits, as a general rule, the investigating officers from giving such a warning when investigation begins or during its course.  It cannot be that a warning falls short of being sufficient compliance with s. 10 (b) of the Charter  for the sole reason that it is given before the exact moment in time when detention commences.  The concept of detention has evolved since the Charter  came into force and it is not always easy to determine in given circumstances whether and when it legally occurs.  From the mere investigation to which a person wilfully collaborates to the custodial arrest of that person, there is a wide spectrum encompassing the varying degrees of legal jeopardies in which the state can put individuals; in some cases, the precise moment when detention arises is by no means easy to ascertain.  Keeping that in mind, it is understandable that police officers sometimes lean towards greater caution to make sure that a person is aware of his or her rights at any relevant time and give the warning when investigation commences or during its course.  Finding a Charter  violation upon the sole fact that the warning was read before detention arose would be demonstrative of a legalistic and technical approach having little regard to the purpose of s. 10 (b), as reflected by its very wording.  It provides in its English version that "[e]veryone has the right on arrest or detention" (emphasis added) to retain and instruct counsel without delay and to be informed thereof.  The French version reads:  "[c]hacun a le droit, en cas d'arrestation ou de détention" (emphasis added).  If one reads the two versions together it becomes clear that s. 10 (b) refers to a factual connection between the detention and the right to a warning rather than a mere coincidence in time.  It is true that the temporal aspect becomes vital at one point because the warning must be given "without delay":  see R. v. Debot, [1989] 2 S.C.R. 1140.  If the warning is given before detention, however, the only requirement is a close factual connection relating the warning to the detention and the reason therefor.  The existence of the required link will depend on the facts of each case.

 

    In this case, by serving both the police and the Charter  warnings on the appellant at the outset of the short interview, the police officers alerted him that he was suspected and was being investigated in relation to a serious offence.  These warnings made him aware that all he would say could incriminate him and that he had the right to remain silent and to instruct counsel on every aspect of the interview that followed.  The situation that arose with the breathalyzer demand was directly connected to the investigation.  Indeed, the demand generated the type of situation where the appellant might be expected to take advantage of the warning given to him a few minutes earlier.  The demand itself, together with the fact that he was also advised of the criminal consequences of a refusal, would normally trigger the consideration of the appellant of whether or not to instruct counsel.  The appellant never mentioned that he wished to contact a lawyer.

 

    The situation, then, was not one where another more serious offence was suddenly being investigated because of changed circumstances external to the encounter and destructive of the close factual linkage relating the prior advice to the detention.  In this case, the demand arose directly and immediately out of the inquiry; it was part of a single incident at which the appellant was fully made aware of his rights.

 

    Given the circumstances of the case, I would therefore conclude that the warning served on the appellant amounted to sufficient compliance with s. 10 (b) of the Charter .

 

VI - Disposition

 

    In the result, I would dismiss the present appeal.

 

//Lamer J.//

 

    The following are the reasons delivered by

 

    Lamer J. -- I have had the benefit of reading the reasons of my colleague Justice Gonthier.  While I agree with his reasons as regards the issue of detention and with his disposition of this appeal, I must, with respect, disagree as regards the police's compliance with the mandatory provisions of s. 10 (b) of the Canadian Charter of Rights and Freedoms .

 

    In my view, the warning given to Schmautz by the investigating officers prior to his detention did not meet the requirements set out in s. 10  of the Charter  which states:

 

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;  [Emphasis added.]

 

This Court has repeatedly held that a purposive approach must be taken in interpreting the scope of the right to counsel.  In R. v. Therens, [1985] 1 S.C.R. 613, Le Dain J. summarized the purpose of s. 10  of the Charter  as follows (at p. 641):

 

    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 where 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.

 

    The right to be informed of one's right to counsel is inextricably linked to situations when the individual's liberty is restricted by way of arrest or detention for an offence.  Thus, the person must be made aware of his or her right to counsel at the moment where he or she is arrested or detained and has been told what for.  I am therefore of the view that the very words "on arrest or detention" (emphasis added) are to be construed as imposing upon the police the obligation to give a Charter  warning once the person has been told that he or she is under arrest or detained (in the present case, once a demand has been made for a breathalyzer test) and the reasons therefor.  Indeed, the decision to call a lawyer will often be dependent upon arrest or detention and  upon the reasons given for these restrictions to the individual's liberty.  The advice to be sought and given can only take place in a useful way once this information has been given.  In any event, the words of s. 10  of the Charter  are clear in this regard.

 

    The right of access to counsel and knowledge of that right has been given protection by the Charter  for the specific purpose of informing a person of his or her rights and obligations as regards arrest or detention and how these rights and obligations should be exercised or fulfilled in the light of the reasons given for arrest or detention.  That is the very purpose of s. 10(b) of our Charter .

 

    In the present case, had the appellant exercised his right and called counsel before the actual detention, he would probably not have sought nor received adequate advice in respect of the breathalyzer demand.  It is at the moment where he became detained that the appellant needed to be aware of the reasons for his detention and of his right to retain and instruct counsel.  In this regard, I share the views expressed in dissent by Lambert J.A. in the following terms:

 

    Section 10  of the Charter  says that rights arise "on" arrest or detention.  The word "on" indicates a close connection in time.  But even more importantly, it indicates relationship and linkage between, first, the arrest or detention, second, the s. 10 (a) right to be informed of the reason for the arrest or detention, and third, the s. 10 (b) right to be informed of the right to retain and instruct counsel without delay.

 

    The arrested or detained person must know the reason for his arrest or detention when he evaluates the necessity to avail himself of his right to retain and instruct counsel.  And he must be in a position to give all the relevant information about his arrest or detention, and the reason for it, to his counsel, so that his counsel may give him relevant and accurate advice.

 

    ((1988), 24 B.C.L.R. (2d) 273, at p. 287.)

 

    This position was also asserted by this Court in R. v. Black, [1989] 2 S.C.R. 138, at pp. 152-53, where Wilson J., for the Court, stated:

 

    Moreover, s. 10(b) should not be read in isolation.  Its ambit must be considered in light of s. 10(a).  Section 10(a) requires the police to advise an individual who is arrested or detained of the reasons for such arrest or detention.  The rights accruing to a person under s. 10(b) arise because he or she has been arrested or detained for a particular reason.  An individual can only exercise his 10(b) right in a meaningful way if he knows the extent of his jeopardy.  [Emphasis added.]

 

    In the light of the aforementioned dicta and considering the purpose of the right to counsel and the necessary link between the rights protected at paras. (a) and (b) of s. 10  of the Charter , I conclude that the Charter  warning given to the appellant prior to the breathalyzer demand did not constitute  compliance with s. 10 (b).  It is the fact of the appellant's detention brought about by the breathalyzer demand that triggered the right to retain and instruct counsel and to be informed of that right, i.e the right to instruct counsel about the arrest or detention and the reasons therefor.  Thus, I conclude that s. 10 (b) requires that the investigating officers inform the individual of his right to counsel once he has been told of his arrest or detention and on what charge or reason.

 

    Moreover, and with the greatest of respect for my colleague Gonthier J.'s opinion, I am of the view that the "close factual connection" with detention which he develops as a criterion detracts from a purposive interpretation of s. 10 , though I am of the view that it should come into consideration under s. 24(2)  of the Charter .  The particular facts of this appeal should not serve as basis for a general interpretation of s. 10  by which a mere factual link with detention is required.  Indeed there may well be cases set in different factual contexts where the finding of a "factual connection" between the detention and the right to be informed of the right to counsel will not afford adequate protection of the individual's rights pursuant to s. 10 .

 

    First, there could arise situations where, contrary to the facts at hand, the time elapsed between the Charter  warning and the detention of the individual is much longer.  In these cases, the requirement of a factual connection would prove fatal to the person who may have forgotten that he could exercise the right which he was given perhaps one hour or two hours before he was detained.

 

    Second, there could arise situations where the factual connection with detention would be far more tenuous than in the present case.  In this regard, we may consider the following example:  investigating officers, having questioned a person about a hit and run offence and having informed this person of his or her right to counsel, eventually detain this person in relation to a manslaughter charge, upon finding out that the victim of the accident has since deceased.  In these circumstances, although a factual connection may be found between both offences, it is clear that the right to counsel could not be properly exercised if the person was not made aware of his right at the moment when he is detained for manslaughter.

 

    Finally, there could arise situations where the person, upon being informed of his right to counsel prior to detention, decides to exercise the right immediately, ignoring the reasons for his arrest or detention.  In his reasons in dissent, Lambert J.A. sets out a hypothetical situation which well illustrates this point (at p. 288):

 

    First, suppose that the person exercises his right to counsel and obtains legal advice.  He tells counsel that an accident is being investigated and he is to be questioned.  He tells counsel that he was never near the accident scene.  Counsel tells him that the police have no right to be in his house if he wishes them out of his house and no right to question him about an accident if he was nowhere near.  But counsel suggests that the wisest course would be to co-operate with the police in their investigation of the accident.  Sometime later a breathalyzer demand is made without any information about a right to instruct counsel.  The detained person does not know that he has any new right to instruct counsel.  He does not know that it is an offence to fail to comply with the demand.  He remembers that he has been advised that the police have no right to be in his house if he wants them to leave, and that he has been advised that the police have no legal right to question him.  So he refuses to answer the police questions, or to comply with their demand and he pushes them out of his house.

 

    The aforementioned hypotheses demonstrate the pitfalls that could eventually be encountered if it was held that a "close factual connection" with detention is sufficient to comply with the words and purpose underlying s. 10  of the Charter .  I would therefore set the factual connection approach aside as regards the analysis of s. 10 .  In so holding, I am not, however, excluding this criterion as I am of the opinion that the factual connection between the Charter  warning and the detention constitutes one of the factors to be balanced when deciding to admit or exclude the evidence under s. 24(2) .

 

    Thus, in the case at bar, although I reach the conclusion that the appellant's s. 10 (b) rights were infringed in the absence of a Charter  warning after the breathalyzer demand, I reach the same result as my colleague Gonthier J. since I am of the view that the evidence of the appellant's refusal to comply following the breathalyzer demand should not be excluded under s. 24(2)  of the Charter .

 

Section 24(2)  states:

 

    24. . . .

 

    (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.

 

    The factors to be balanced by the Court in determining whether the admission of evidence in the proceedings would bring the administration of justice into disrepute were set out in R. v. Collins, [1987] 1 S.C.R. 265.  The first set of factors are those relevant to the fairness of the trial.  The second set of factors concern the seriousness of the Charter  violation.  The third set of factors raise the possibility that the administration of justice would be brought into disrepute by excluding the evidence despite the fact that it was obtained in a manner that infringed the Charter .

 

    In assessing whether to admit or exclude the evidence of the appellant's refusal to comply with the breathalyzer demand in the instant appeal, it is important to bear in mind the following facts:  first, as I have previously mentioned, there existed a factual link between the detention and the right to be informed of the right to counsel.  The appellant was told that he was being questioned in relation to a hit and run accident and was soon after detained for him to comply with a breathalyzer demand in relation to his having driven the alleged hit and run car.  From a factual standpoint, the latter offence is undoubtedly connected to the former.

 

    Secondly, it must be noted that the appellant was never physically "detained" by the police officers nor was he taken to police headquarters for questioning.  He remained in his own home and was at liberty to contact a lawyer at any time he deemed necessary.  He was, in the light of the criteria set out by this Court in R. v. Therens, supra, legally "detained" as regards s. 10  of the Charter , but this form of detention is to be contrasted with the physical restraint usually imposed following an arrest.

 

    Thirdly, the evidence shows that the police officers acted in good faith throughout the proceedings and never wilfully or knowingly breached the appellant's rights.

 

    Finally, and perhaps most important, the appellant never testified on a voir dire, to the effect that he would have chosen to contact counsel had he been informed once again of his right upon detention.  Thus, although the appellant's right to counsel was breached, this breach was minor in the present circumstances as it has not been shown that compliance by the investigating officers with the Charter  would have triggered a different reaction from the appellant.

 

    In summary, considering the factual connection between the offence of hit and run and that of refusal to comply with a breathalyzer demand, the technical nature of the appellant's detention and the fact that he did not tender any evidence showing that he would have exercised his right to counsel had he been told again of that right,  I conclude that the evidence of the appellant's refusal to comply with the breathalyzer demand obtained following the violation of his right pursuant to s. 10 (b) of the Charter  should nevertheless not be excluded.

 

    In the result, as does my colleague Gonthier J., I would dismiss the appeal.

 

    Appeal dismissed.

 

    Solicitors for the appellant:  Buckley & Buckley, Delta.

 

    Solicitor for the respondent:  The Ministry of the Attorney General, Vancouver.

 



    [1] B.C. Co. Ct. (New Westminster), No. X017005, September 24, 1986.

    [2] B.C. Prov. Ct., June 12, 1986 (Judge Scherling).

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