R. v. Thomsen

Le Dain J.‑‑The general issue raised by this appeal is whether a person to whom a demand was made by a police officer, pursuant to the former s. 234.1(1) of the Criminal Code , to accompany him to a police car and to provide a sample of breath for a roadside screening device, had, before responding to such demand, the right, guaranteed by s. 10(b) of the Canadian Charter of Rights and Freedoms , to retain and instruct counsel without delay and to be informed of that right. That issue turns on two questions: (a) whether the s. 234.1(1) demand resulted in a detention within the meaning of s. 10 of the Charter ; and (b) if so, whether the right to retain and instruct counsel without delay and to be informed of that right was 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 .

The appeal is by leave of this Court from the judgment of the Ontario Court of Appeal on March 14, 1985, dismissing an appeal from the judgment of Quinlan Co. Ct. J. on August 8, 1983, 23 M.V.R. 162, which set aside the acquittal of the appellant by Sharpe Prov. Ct. J. on May 4, 1983 and ordered a new trial of the appellant on a charge of failing or refusing, without reasonable excuse, to comply with a demand for a sample of breath contrary to s. 234.1(2) of the Criminal Code .

I

On December 17, 1982, a police officer engaged in spot checks of motor vehicles in the Town of Halton Hills, Ontario, and equipped with an A.L.E.R.T. roadside breath testing device, stopped the appellant's vehicle because it had a defective headlamp. At the officer's request the appellant produced his driver's licence, which the officer examined. In the course of conversation with the appellant the officer detected the odour of alcohol on the appellant's breath. The officer testified that as a result of the odour on the appellant's breath and his conversation with the appellant he formed a reasonable suspicion that the appellant had alcohol in his blood and he made a formal demand that the appellant provide a sample of breath for the roadside screening device. The appellant refused. The officer then asked the appellant to accompany him to the officer's car and to sit in the car. The appellant was seated in the officer's car for about 15 minutes while the officer wrote in his notebook and prepared an appearance notice. During this time the officer explained the reason for the demand for a roadside sample of breath and gave the appellant two further opportunities to comply with the demand, but the appellant again refused. At no time did the officer inform the appellant that he had a right to retain and instruct counsel without delay. The appellant was released on an appearance notice, his vehicle was parked and his driver's licence was suspended for 12 hours. On December 24, 1982, the appellant was charged with having failed or refused on or about December 17, 1982 in the Town of Halton Hills "to comply with a demand made to him by a peace officer to provide forthwith a sample of his breath, suitable for analysis, by means of an approved roadside screening device", contrary to s. 234.1(2) of the Criminal Code .

At the trial of the appellant in the Provincial Court (Criminal Division), Sharpe Prov. Ct. J. dismissed the charge against the appellant on the ground that the appellant's right, guaranteed by s. 10(b) of the Charter , to be informed of his right to retain and instruct counsel without delay had been infringed. He held that the appellant had been detained within the meaning of s. 10 because he was required to obey the police officer when the latter signalled him to pull over and his compliance was therefore not voluntary. He further held that since counsel might have advised the appellant to comply with the demand for a sample of breath there was a sufficient "nexus" between the Charter infringement and the charge to warrant dismissal of the charge.

On the Crown's appeal from this judgment to the County Court of the Judicial District of Halton, Quinlan Co. Ct. J. allowed the appeal, set aside the acquittal and ordered a new trial on the ground that Sharpe Prov. Ct. J. had made a finding that the appellant had been detained before the evidence was complete. He was also of the view, however, that the appellant had not been detained, relying on the judgment of Ritchie J. in Chromiak v. The Queen, [1980] 1 S.C.R. 471, for the meaning of detention under s. 10 of the Charter .

The appellant's appeal from this judgment was dismissed by the Ontario Court of Appeal (Lacourcière, Goodman and Cory JJ.A.) in a brief endorsement by Lacourcière J.A. for the reasons given by the Court of Appeal in R. v. Simmons (1984), 11 C.C.C. (3d) 193 and R. v. Altseimer (1982), 1 C.C.C. (3d) 7 and by this Court in Chromiak.

The former s. 234.1 of the Criminal Code , which was repealed by s. 36 of the Criminal Law Amendment Act, 1985, S.C. 1985, c. 19, and replaced by a new s. 238 of the Code, provided for mandatory roadside breath testing at the relevant time 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 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 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.

(3) In proceedings under this section, where it is proved that the accused occupied the seat ordinarily occupied by the driver of a motor vehicle, he shall be deemed to have had the care or control of the vehicle unless he establishes that he did not enter or mount the vehicle for the purpose of setting it in motion.

(4) In this section, "approved road‑side screening device" means a device of a kind that is designed to ascertain the presence of alcohol in the blood of a person and that is approved for the purpose of this section by order of the Attorney General of Canada.

Section 10 of the Charter provides:

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.

On the appeal to this Court the following constitutional questions were stated by Estey J. in his order of January 8, 1987:

1. Is an individual investigated by a police officer pursuant to s. 234.1 of the Criminal Code of Canada , in force as of December 24, 1982, detained within the meaning of s. 10 of the Canadian Charter of Rights and Freedoms ?

2. If the answer to question 1 is in the affirmative, does s. 234.1 of the Criminal Code of Canada , as applied, violate the right of an individual to retain and instruct counsel without delay and to be informed of that right, contrary to s. 10(b) of the Canadian Charter of Rights and Freedoms ?

3. If s. 234.1 of the Criminal Code of Canada violates the right to counsel and the right to be informed thereof, contrary to s. 10(b) of the Canadian Charter of Rights and Freedoms , is s. 234.1, as applied, justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982 ?

II

The first issue in the appeal is whether the demand made by the police officer to the appellant, pursuant to s. 234.1(1) of the Criminal Code , to accompany the officer to his car and to provide a sample of breath for a roadside screening device resulted in a detention of the appellant within the meaning of s. 10 of the Charter .

In the course of argument reference was necessarily made to the implications for this issue of the judgment of this Court in R. v. Therens, [1985] 1 S.C.R. 613, in which it was held that a demand made by a police officer to the respondent, pursuant to the former s. 235(1) of the Criminal Code , to accompany the officer to a police station and to submit to a breathalyzer test resulted in a detention of the respondent within the meaning of s. 10 of the Charter . The former s. 235 of the Code provided:

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.

The judgment in Therens was applied by the Court to the same issue respecting detention in Trask v. The Queen, [1985] 1 S.C.R. 655, at p. 657, and in Rahn v. The Queen, [1985] 1 S.C.R. 659, at p. 661, in the following terms: "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 and that he was therefore denied the right to be informed of his right to retain and instruct counsel without delay." I venture to restate what I perceive to be the essentials of those reasons, as they appear in my judgment in Therens, as follows:

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.

In my opinion the s. 234.1(1) demand by the police officer to the appellant to accompany him to his car and to provide a sample of breath into a roadside screening device fell within the above criteria. The demand by which the officer assumed control over the movement of the appellant was one which might have significant legal consequence because, although the evidence provided by the roadside screening device could not be introduced against the appellant, it might provide the basis for a s. 235(1) breathalyzer demand. For this reason, and given the criminal liability under s. 234.1(2) for refusal, without reasonable excuse, to comply with the demand, the situation was one in which a person might reasonably require the assistance of counsel. The criminal liability for refusal also constituted the necessary compulsion or coercion to make the restraint of liberty a detention. The difference in duration of the restraint of liberty resulting from a s. 234.1(1) demand and that resulting from a s. 235(1) demand is not such as to prevent the former from constituting a detention within the meaning of s. 10 of the Charter . For these reasons I am of the opinion that as a result of the s. 234.1(1) demand the appellant was detained within the meaning of s. 10 of the Charter .

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 . I turn to that question now.

III

The first issue arising with respect to the application of s. 1 is whether the right to retain counsel without delay is subject, in the case of a s. 234.1(1) demand, to a limit prescribed by law, within the meaning of s. 1. In Therens, where the Court held that s. 235(1) of the Code did not preclude contact with counsel prior to the breathalyzer test, I had occasion to state what I understood to be a limit prescribed by law within the meaning of s. 1 as follows at p. 645:

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.

I remain of the view that a limit prescribed by law within the meaning of s. 1 may result by implication from the terms of a legislative provision or its operating requirements. It need not be an explicit limitation of a particular right or freedom.

In R. v. Talbourdet (1984), 12 C.C.C. (3d) 173 (Sask. C.A.), to which I referred in Therens, Cameron J.A., in agreeing with the Crown that s. 234.1(1) imposed a limit on the right to retain and instruct counsel, appears to have attached particular importance to the requirement in s. 234.1(1) that the sample of breath be provided "forthwith" (a word which he italicized) as precluding prior consultation with counsel before complying with a s. 234.1(1) demand. In our reasons for judgment in Therens, both Estey J. and I, in comparing s. 234.1(1) and s. 235(1), also attached importance to the fact that Parliament chose to use the word "forthwith" without qualification in s. 234.1(1) but the words "forthwith or as soon as practicable" and "then or as soon thereafter as is practicable" in s. 235(1). In the end, however, it was the two‑hour operating limit under s. 237(1) for the breathalyzer test that was seen as affording a possibility of contact with counsel prior to compliance with a s. 235(1) demand.

Counsel for the appellant contended that a limit prescribed by law on the right to retain and instruct counsel does not result from the word "forthwith" in s. 234.1(1) because on the authority respecting the meaning of "forthwith" in a variety of legislative contexts, the word "forthwith" does not mean "immediately" and there is no difference in meaning between "forthwith" and "forthwith or as soon as practicable". It must be said that this contention finds support in the authorities cited by the appellant, which are also referred to in Falconer, "The Alert Demand and the Right to Counsel: `The Problem with Talbourdet'" (1986), 28 Crim. L.Q. 390, on which the appellant relied. Moreover, this was the view expressed in R. v. Seo (1986), 25 C.C.C. (3d) 385 (Ont. C.A.) by Finlayson J.A., where in dealing with the same issue as the one in this appeal, he said at p. 409:

In my opinion, there is no difference in meaning between "forthwith" and "forthwith or as soon as practicable". Both mean the same thing having regard to the nature of the test and the condition that it is designed to monitor. The breath sample under s. 234.1 or s. 235 is to be provided as quickly as it effectively can be and if this means waiting for the device to arrive or taking the detained person to a place where there is such a device, this would be within the definition of "forthwith". It does not mean "immediately".

Despite this view of the meaning of the word "forthwith" in s. 234.1(1), Finlayson J.A. nevertheless came to the conclusion that there was an "implicit limitation" on the right to counsel prescribed by s. 234.1(1) arising from the operational nature and purpose of a s. 234.1(1) demand, as revealed by the s. 1 material that was before the Ontario Court of Appeal. The considerations that led Finlayson J.A. to this conclusion are reflected in the following passages from his reasons for judgment at pp. 408 and 410:

Two things are apparent from the above studies. The first is that the incident of impairment and the most effective time for law enforcement is in the late evening and early morning when the realistic probability of a detained person being able to contact "forthwith" a knowledgeable lawyer to obtain advice is very low. Secondly, there has to be a fair degree of urgency in the taking of the breath sample because the longer it is delayed, the lower the blood‑alcohol content of the detained person becomes because of metabolism.

...

In my opinion, when the need for, and purpose of, the roadside screening device (A.L.E.R.T.) is looked at in the context of the seven volumes of material submitted by the Crown, it is evident that the section, as drafted, does not permit a detained person, subject to a demand, to retain and instruct counsel before complying with such demand. The right to retain counsel is incompatible with the effective use of this device on a random basis with the purpose of demonstrating a police presence so as to convince the driving public that there is a high probability of detection in the event that they drive after drinking.

These observations emphasize what, as a practical matter, is implied by the words "forthwith" and "roadside" in s. 234.1(1). That there is to be no opportunity for contact with counsel prior to compliance with a s. 234.1(1) demand is, in my opinion, an implication of the terms of s. 234.1(1) when viewed in the context of the breath testing provisions of the Criminal Code as a whole. A s. 234.1(1) roadside screening device test is to be administered at roadside, at such time and place as the motorist is stopped, and as quickly as possible, having regard to the outside operating limit of two hours for the breathalyzer test which it may be found to be necessary to administer pursuant to s. 235(1) of the Code.

IV

The next issue in the appeal is whether the limit imposed on the right to retain and instruct counsel by s. 234.1(1) of the Code is a reasonable one demonstrably justified in a free and democratic society, within the meaning of s. 1 of the Charter . The test for determining that question was formulated in R. v. Oakes, [1986] 1 S.C.R. 103, and restated by Dickson C.J. in R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, as follows at pp. 768‑69:

Two requirements must be satisfied to establish that a limit is reasonable and demonstrably justified in a free and democratic society. First, the legislative objective which the limitation is designed to promote must be of sufficient importance to warrant overriding a constitutional right. It must bear on a "pressing and substantial concern". Second, the means chosen to attain those objectives must be proportional or appropriate to the ends. The proportionality requirement, in turn, normally has three aspects: the limiting measures must be carefully designed, or rationally connected, to the objective; they must impair the right as little as possible; and their effects must not so severely trench on individual or group rights that the legislative objective, albeit important, is nevertheless outweighed by the abridgment of rights. The Court stated that the nature of the proportionality test would vary depending on the circumstances. Both in articulating the standard of proof and in describing the criteria comprising the proportionality requirement the Court has been careful to avoid rigid and inflexible standards.

The importance of the legislative purpose to be served by s. 234.1(1) of the Code and the necessary relationship to it of roadside breath testing under circumstances which do not permit an opportunity for contact with counsel are disclosed by the s. 1 material that was placed before the Court by the respondent in the appeal in R. v. Hufsky, [1988] 1 S.C.R. 621, and relied on in this appeal, which was argued at the same time. It was the same material that was before the Ontario Court of Appeal in Seo, although apparently grouped together somewhat differently in the first seven volumes. The material, consisting of statistics, reports, studies, articles, Canadian legislative history and foreign legislation with respect to the problem of impaired driving, is referred to in considerable detail by Finlayson J.A. in Seo, and I would respectfully adopt the following statement by him at pp. 398‑99 of the conclusions that may be drawn from the material:

(1) The problem of the drinking driver has been recognized by the Ministers of Justice of Canada and by experts in traffic accident research for many years.

(2) The problem of the drinking driver has not been controlled. It is very serious and must be addressed by urgent measures.

(3) There is a direct relationship between drinking drivers and automobile accidents.

(4) The severity of accidents increases almost in direct ratio to the quantity of alcohol consumed.

(5) The highest frequency of impairment is found late in the evening and in the early morning and the degree of impairment and the severity of accidents is again almost in direct relationship to the time of day.

(6) The number of accidents increases dramatically at a blood level reading of 80 mg. per 100 ml. of blood.

(7) The number and severity of accidents is very pronounced at the so‑called moderately impaired level of between 80 and 120 mg.

(8) The detection of drivers who are impaired at the moderate level of impairment through observation by trained police officers is ineffective.

(9) Increased penalties have not been an effective deterrent.

(10) The most effective deterrent is the strong possibility of detection.

The important role played by roadside breath testing is not only to increase the detection of impaired driving, but to increase the perceived risk of its detection, which is essential to its effective deterrence. In my opinion the importance of this role makes the necessary limitation on the right to retain and instruct counsel at the roadside testing stage a reasonable one that is demonstrably justified in a free and democratic society, having regard to the fact that the right to counsel will be available, if necessary, at the more serious breathalyzer stage.

For the foregoing reasons I would dismiss the appeal and answer the constitutional questions as follows:

1. Is an individual investigated by a police officer pursuant to s. 234.1 of the Criminal Code of Canada , in force as of December 24, 1982, detained within the meaning of s. 10 of the Canadian Charter of Rights and Freedoms ?

Answer: Yes.

2. If the answer to question 1 is in the affirmative, does s. 234.1 of the Criminal Code of Canada , as applied, violate the right of an individual to retain and instruct counsel without delay and to be informed of that right, contrary to s. 10(b) of the Canadian Charter of Rights and Freedoms ?

Answer: Yes.

3. If s. 234.1 of the Criminal Code of Canada violates the right to counsel and the right to be informed thereof, contrary to s. 10(b) of the Canadian Charter of Rights and Freedoms , is s. 234.1, as applied, justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982 ?

Answer: Yes.

Appeal dismissed.