The following is the judgment delivered by
The Court‑‑This appeal raises the same issues as those considered by this Court in R. v. Therens, [1985] 1 S.C.R. 613, which was heard at the same time: (1) whether 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 is detained within the meaning of s. 10 of the Canadian Charter of Rights and Freedoms and is therefore entitled to be informed of the right to retain and instruct counsel without delay; and (2) if there has been an infringement or a denial of the right to counsel, whether the evidence provided by the breathalyzer test should be excluded pursuant to s. 24 of the Charter .
The appeal is by leave of this Court from the judgment of the Alberta Court of Appeal on January 9, 1984, 11 C.C.C. (3d) 152, 7 D.L.R. (4th) 438, 38 C.R. (3d) 1, 50 A.R. 43, 29 Alta L.R. (2d) 289, [1984] 2 W.W.R. 577, dismissing an appeal by way of stated case against the appellant's conviction by Provincial Court Judge J.E. Enright on the charge that he
on or about the 31st day of July, A.D. 1982, at or near Spruce Grove, in the Province of Alberta, did unlawfully have care or control of a motor vehicle, having consumed alcohol in such a quantity that the proportion thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to section 236 of the Criminal Code .
On July 31, 1982 at 5:05 a.m. on Highway 60, south of the Enoch Indian Village, a demand was made upon the appellant by a constable to provide a sample of breath pursuant to s. 235(1) of the Criminal Code . The appellant was driven to the Stoney Plain detachment of the RCMP, where he provided breath samples at 5:27 a.m. and 5:47 a.m. He was not informed of his right to retain and instruct counsel without delay.
At his trial the appellant applied, pursuant to s. 24 of the Charter , for the exclusion of the evidence provided by the breathalyzer test on the ground that he had been denied the right to counsel guaranteed by s. 10(b) of the Charter . In refusing to exclude the evidence, the provincial court judge held, applying the decision of this Court in Chromiak v. The Queen, [1980] 1 S.C.R. 471, that the appellant had not been detained within the meaning of s. 10 of the Charter and was, therefore, not entitled to be informed of his right to retain and instruct counsel without delay. The provincial court judge further held that in any event the admission of the evidence would not bring the administration of justice into disrepute within the meaning of s. 24(2) of the Charter . In its unanimous judgment dismissing the appeal, the Alberta Court of Appeal also relied on the decision in Chromiak in concluding that the appellant had not been detained.
For the reasons given in the judgment of this Court in R. v. Therens, supra, we hold that as a result of the s. 235(1) demand the appellant was detained within the meaning of s. 10 of the Charter ; that he was denied the right to be informed of the right to retain and instruct counsel without delay; and that the evidence of the breathalyzer test must be excluded pursuant to s. 24(2) of the Charter because its admission would in all the circumstances of the case bring the administration of justice into disrepute.
The appeal will be allowed, the judgments of the Alberta Court of Appeal and Provincial Court Judge Enright will be set aside, and a new trial will be ordered, with the exclusion of the evidence provided by the breathalyzer test.
Cases cited
- R. v. Therens 17692-1985-05-23 ¶ 1, ¶ 5
- 2 W.W.R. 577 2 W.W.R. 577 ¶ 2
- Chromiak v. The Queen item-5662-1979-11-20 ¶ 4