Majority
The judgment of Abbott, Judson and Pigeon JJ. was delivered by
[Page 938]
PIGEON J. (dissenting)
PIGEON J. (dissenting)—This appeal is from a judgment of the Ontario Court of Appeal[5] reversing the decision of Haines J. on a stated case, and restoring the present appellant’s conviction, under subs. 2 of s. 223 (now s. 235) of the Criminal Code, of failing, without reasonable excuse, to provide a sample of his breath for analysis upon a demand made pursuant to subs. (1).
(a) the accused, Clarence Wayne Brownridge, was observed by a police constable Mabbott driving a motor vehicle eastbound on Queen Street, in the City of Toronto at about 12:45 a.m. on the 19th day of November, 1970. The vehicle was travelling without its headlights on and the said police
The case stated by the Provincial Judge was as follows:
constable stopped the vehicle on Dufferin Street after it had turned off Queen Street, travelled then north on Gladstone, then west on Peel and finally north on Dufferin Street.
(b) the police officer signaled the accused to stop the vehicle and when the defendant did so, police constable Mabbott detected the odour of an alcoholic beverage on his breath and observed that his eyes were glassy and red and his speech slightly slurred. The accused was arrested for impaired driving and requested by the police constable to get into the police car. The accused did so and was taken to a police station at approximately 1:00 a.m.
(c) At the police station, police constable Saunders observed the accused and asked the accused to perform certain physical tests as a result of which he formed the opinion that the accused’s ability to drive a motor vehicle was impaired by alcohol. He then demanded that the defendant provide him with a sample of his breath suitable to enable an analysis to be made to determine the proportion, if any, of alcohol in his blood.
(d) The demand for a sample of the accused’s breath was made by police constable Saunders at about 1:00 a.m. on the 19th day of November, 1970.
(d) The demand for a sample of the accused’s breath was made by police constable Saunders at about 1:00 a.m. on the 19th day of November, 1970.
[Page 939]
(e) The accused then asked for an opportunity to speak to his lawyer for the purpose of determining whether he ought to comply with the demand made to him by police constable Saunders. The accused advised police constable Saunders that he would only take the breath test if so advised by his lawyer. The accused’s request was refused at that time.
(f) At approximately 3:00 a.m. on November 19th, 1970, the accused spoke with his lawyer and then asked for an opportunity to give a sample of his breath, but the offer was refused.
(g) Upon hearing the evidence I held that the accused refused to give a sample of his breath when requested.
The defendant desires to question the validity of the said Order convicting him on the ground that it is erroneous in point of law, the questions submitted for the judgment of the Supreme Court of Ontario being:
(1) Did I err in law in holding that the accused did not offer a reasonable excuse to refuse to provide a sample of his breath, although he had been denied the opportunity of consulting his lawyer after the opportunity was requested by him.
(2) Did I err in law in holding that the accused’s conduct constituted a refusal to comply with a demand to provide a sample of his breath as contemplated by section 223 of the Criminal Code.
(3) Did I err in law in holding that section 223 of the Criminal Code is operative despite the provisions of subsections (d) and (e) of section 2 and section 5 of an Act for the Recognition and Protection of Human Rights and Fundamental Freedoms (Canadian Bill of Rights), Statutes of Canada 1960, Chapter 44.
(4) Did I err in law in holding that the information of Douglas Germain sworn on the 19th day of November, 1970, was valid and ought not to be quashed despite the provisions of subparagraph (ii) of subsection (c) of section 2 and sub-paragraph.(d) of section 2 of the Canadian Bill of Rights, Statutes of Canada 1960, Chapter 44.
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Haines, J. answered these questions as follows:
(1) The answer to question (1) is Yes.
(2) The answer to question (2) is No.
(3) The answer to question (3) is No.
The Court of Appeal held that all the questions should be answered in the negative. Leave to appeal to this Court was granted generally. However, no argument was presented on question (3), as the same matter was involved in the pending case of Curr v. The Queen[6]. The point is now settled by the decision in that case.
Section 223 (now s. 235) reads:
223(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 222, 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 a sample of his breath suitable to enable an 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 a sample 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 offence punishable on summary conviction and is liable to a fine of not less than fifty dollars and not more than one thousand dollars or to imprisonment for not more than six months, or both.
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The offence contemplated in s. 222 (now s. 234) is impaired driving. There is also in s. 224 (now s. 236) the offence of driving with more than 0.08 per cent blood alcohol. Finally, s. 224A (now s. 237) provides with respect to proceedings under either section, that the evidentiary value of a breath analysis is subject to the following requirements among others:
(ii) the 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,
The material parts of s. 2 of the Bill of Rights are as follows:
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
* * *
(d) authorize a court, tribunal, commission, board or other authority to compel a person to give evidence if he is denied counsel, protection against self crimination or other constitutional safeguards:.
[Page 942]
considered in the present case. However, it appears more convenient to start by considering the situation under the Criminal Code only.
In its judgment, the Ontario Court of Appeal relied on two decisions of the Criminal Division of the U.K. Court of Appeal under somewhat similar legislation: R. v. Clarke[7], and Law v. Stephens[8]. In the first of those cases, the accused had fled in his car after being stoppd and requested to take a breath test. He was chased at high speed, arrested for failing to take the test, taken to a police station, again requested to take a breath test and also to supply specimens of blood or urine. His last reply was “No, I will not do anything until I have seen my solicitor”. The conviction for dangerous driving and for failing to supply specimens of blood or urine was upheld, the Court expressing the view that the wish to obtain legal advice before submitting to the test for blood alcohol could not be an excuse for not taking it.
In the second case, the accused had willingly accompanied an officer to the police station but his answers to the requests made upon him were that he wanted to speak to his solicitor. He was charged for failing to provide specimens as in the other case. The police contacted the accused’s solicitor, who promptly came to the station and the accused, after speaking to him, offered to provide a specimen. This opportunity was refused by the police on the basis that there had been a refusal some time previously, that that was a final refusal and that the offence was complete. The conviction was upheld.
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In my opinion, the same view ought: to be taken of the legal situation of a person who is properly requested to take a breath test under s. 222 (now s. 234) of the Criminal Code. What the police officer is entitled to do is to “require him to provide then or as soon thereafter as is practicable a sample of his breath…”.The statute clearly contemplates immediate obedience to the request. What may constitute a reasonable excuse within subs. (2) is not defined. Therefore, this is to be determined under common law principles by virtue of s. 7(2) (now s. 7(3)) of the Criminal Code which reads:
7. (2) Every rule and principle of the common law that renders any circumstance a justification or excuse for am act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of the Parliament of Canada, except in so far as they are altered by or are inconsistent with this Act or any other Act of the Parliament of Canada.
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.
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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 provisions as s. 15 of the Immigration Act, R.S.C. 1970, c. i-2.
It is now necessary to consider whether, in this case, the situation is different because when the accused was requested to submit to the breath test, he had already been arrested for impaired driving. As a person under arrest, he undoubtedly came within the terms of s. 2(c) (ii) of the Bill of Rights and, therefore, he could not be deprived “of the right to retain and instruct counsel without delay”. But he was not deprived of this right: approximately two hours after being taken to the police station, he was able to speak to his lawyer. It therefore appears from the stated case that what the police refused to do was to accept that the accused should not be required to take the breath test until after he had spoken to his lawyer, not that he should be permitted to retain and to instruct him without delay. When the accused having spoken to his lawyer finally asked for an opportunity to give a sample of his breath, the result of the test, if taken, would not have been available evidence against him. This is said to have occurred at approximately 3 a.m. while the time when the accused was observed driving a vehicle in a manner that attracted the attention of the police is given as 12.45. This was the time when an offence under s. 222 or s. 224 (now s. 234 and s. 236) could be said to have been committed. Therefore, more than two hours had elapsed.
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I fail to see any reason for which a motorist suspected of impaired driving would be entitled to require the opportunity of obtaining legal advice before submitting to a breath test if under arrest at that time, while he would not have such right if not under arrest. I also fail to see how a refusal by the police to allow such a person to contact a legal adviser before submitting to such a test could be a lawful excuse if the person is then under arrest, not if he is only accompanying a police officer on request for the purpose of taking it.
I would dismiss the appeal.
The judgment of Hall and Laskin JJ. was delivered by
LASKIN J.
LASKIN J.—The central issue in this appeal is whether an arrested person who, subsequent to his arrest, is requested to provide a breath sample under s. 223(1) (now s. 235(1)) of the Criminal Code may be convicted under s. 223(2) (now s. 235(2) of refusing without reasonable excuse to comply with that request if at that time he has not been allowed an opportunity to reach and consult his lawyer after having sought permission to do so. In short, the question before this Court is the effect of s. 2(c) (ii) of the Canadian Bill of Rights upon s. 223 (now s. 235) and associated provisions of the Criminal Code in the light of the circumstances set out below.
This question was not before this Court in Regina v. Curr[9], in which judgment was given on May 1, 1972. That case ruled out attempted reliance by an accused, when requested to give a breath sample, upon the self-crimination provisions of s. 2(d) of the Canadian Bill of Rights. A factual point of difference between the Curr case and the present one is that the accused Curr
[Page 946]
had not been under arrest when he was asked to provide a breath sample; Brownridge, on the other hand, had been arrested on a charge of impaired driving before he was taken to a police station where he was asked to give the sample. I do not attach any significance to this factual difference in its relation to s. 2(c) (ii) of the Canadian Bill of Rights.
Of the four questions set out in the stated case, out of which this appeal arises, only the first and the fourth need be considered. The second concerns the factual question whether accused’s conduct amounted to a refusal to provide a breath sample, and there is no doubt that it did. The third relates to the self-crimination point which was decided in Regina v. Curr. Questions 1 and 4 and the answers thereto given by Haines J. and by the Ontario Court of Appeal respectively are as follows:
1. Did I err in law in holding that the accused did not offer a reasonable excuse to refuse to provide a sample of his breath, although he had been denied the opportunity of consulting his lawyer after the opportunity was requested by him.
4. Did I err in law in holding that the information of Douglas Germain sworn on the 19th day of November, 1970 was valid and ought not to be quashed despite the provisions of subparagraph (ii) of subsection (c) of section 2 and subparagraph (d) of section 2 of the Canadian Bill of Rights, Statutes of Canada 1960 Chapter 44.
Answer to question 1: Haines J., Yes. Court of Appeal, No.
The breath sample provisions of the Criminal Code are in the following terms:
223. (1) Where a peace officer on reasonable and probable grounds believes that a person is commit-
[Page 947]
ting, or at any time within the preceding two hours has committed, an offence under section 222, 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 a sample of his breath suitable to enable an 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 a sample 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 offence punishable on summary conviction and is liable to a fine of not less than fifty dollars and not more than one thousand dollars or to imprisonment for not more than six months, or both.
Related to these provisions are s. 222 (now s. 234) making impaired driving an offence and s. 224 (now s. 236) making it an offence to drive with more than 80 milligrams of alcohol in 100 millilitres of blood. Section 224A (now s. 237) provides that in proceedings under ss. 222 or 224, evidence of the result of the chemical analysis of the sample taken pursuant to s. 223(1) establishes rebuttable proof of the proportion of alcohol in the blood if, inter alia, “the 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” (s. 224A(c)(ii)).
Section 2(c) (ii) of the Canadian Bill of Rights reads:
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
* * *
[Page 948]
(c) deprive a person who has been arrested or detained
* * *
(ii) of the right to retain and instruct counsel without delay,…
Haines J. held that the effect of s. 2(c) (ii) upon s. 223 of the Criminal Code was to provide the accused with a reasonable excuse for refusing to give a breath sample when he was denied the opportunity to consult counsel. In his view, s. 2(c) (ii) did not render s. 223 inoperative but operated upon the construction of s. 223 so as to provide a ground of “reasonable excuse” under that exonerating clause of subs. 2 of that section. Indeed, he went on to say that the statutory defence of reasonable excuse could be invoked in the present case even if there was no Canadian Bill of Rights. Moreover, he was of the opinion that questions 1 and 4 boiled down to the same question in relation to s. 2(c) (ii), and he concluded that the information sworn against the accused under s. 223(2) was accordingly invalid and should be quashed.
The Court of Appeal agreed with Haines J. that one issue only was raised by questions 1 and 4 as they related to s. 2(c)(ii), namely, whether the denial of the accused’s request to consult counsel afforded him a reasonable excuse to refuse to give a breath sample upon demand. It based its negative answer to that question by contrasting the words “without delay” in s. 2(c) (ii) and the words “forthwith or as soon as practicable” in s. 223(1), and concluding that “without delay” did not mean “instantly”, but was to be construed by taking into account all relevant circumstances. In the present case, this meant, in the view of the Court of Appeal, making reasonable allowance for the operation of the policy embedded in s. 223, which commanded a police constable to act forthwith, i.e. immediately, or as soon as the necessary test equipment could be procured, due regard being had to the two hour time limitation of s. 224A.
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It is not disputed in the present case that there were reasonable and probable grounds within the stipulations of s. 223(1) to support a demand for a breath sample. Counsel for the appellant accused contended on this basis, and having regard to what happened after the accused was arrested, that there were two separate issues raised by questions 1 and 4 and not simply one as the Courts below had stated. For him, the question whether the denial of the opportunity to consult counsel was a reasonable excuse within s. 223(2) was a different question from whether that denial (regardless of whether there was a reasonable excuse) constituted such an infringement of the Canadian Bill of Rights as to entitle the accused to have the information stayed or quashed or the conviction set aside.
In my opinion, the stated case does raise two separate issues in its questions 1 and 4. Question. 1 has to do with the construction and application of s. 223 alone, but question 4 raises a more general issue of the effect of an infringement of the Canadian Bill of Rights. That question as formulated in the stated case is limited to the effect upon the criminal proceedings against the accused of the alleged infringement of one of the guarantees of the Canadian Bill of Rights.
Counsel for the Crown conceded in this Court that s. 2(c) (ii), having regard to its text and to the other provisions of the Canadian Bill of Rights, gave an accused a right to call for counsel prior to trail. He submitted, however, that the denial of that right gives rise to no remedy save that of having a federal enactment declared inoperative. In the present case, moreover (so his contention went) the discretion given to a police officer under s. 223(1) of the Criminal Code to demand a breath sample was not in conflict with the accused’s right to invoke s. 2(c)(ii). I understood his submission to go this far; that even if there was a conflict which emerged in the administration of the legislation, the accused’s position in respect of. the charge against him was not affected by s. 2(c) (ii) of. the Canadian Bill of Rights; no
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remedy was prescribed by that Act other than to render legislation inoperative, as in Regina v. Drybones[10]; no such consequence arose in the present case; and the infringement of a right arising prior to trial could not affect the regularity of the trial itself. I shall return to the question of the available relief after I have dealt with the issue raised in question 1.
The precise form of question 1 does not, in my opinion, reduce it to a question of fact. I read it to mean that the trial judge ruled as a matter of law that denial of an accused’s request to consult a lawyer before he would agree to give a breath sample did not provide a reasonable excuse to an accused for refusing to give such a sample.
I agree with this ruling of the trial judge because I regard the phrase “without reasonable excuse” as adding a defence or a bar to successful prosecution which would not be available without those words, but not as encompassing defences or bars that would exist without them. For example, a right of diplomatic immunity from the domestic criminal law would exist regardless of the absence of the words “without reasonable excuse”; and similarly, in my view, if s. 2(c) (ii) of the Canadian Bill of Rights sets up a bar, it is one which is independent of the presence of the words in question. It would be strange, indeed, if the effect of the immunity above-mentioned or of the Canadian Bill of Rights was vitiated by repeal of the words “without reasonable excuse”.
I take as another illustration the two hour time limit mentioned in s. 223(1). It would be a defence to any demand to provide a breath sample
[Page 951]
that the alleged offence had been committed more than two hours prior thereto. This defence arises independently of any that are envisaged by the words “without reasonable excuse” and hence is not dependent on them.
The English cases cited to this Court, such as Regina v. Clarke[11] and Law v. Stephens[12], apart from such considerations as were raised by Haines J. in his discussion of them, are inapplicable. The right to counsel in England does not stand on such a statutory foundation as is provided here by the Canadian Bill of Rights. There, a defence on that basis would not arise independently of reliance on the exoneration given by the words “without reasonable excuse”.
The terms of s. 223(1), taken alone, appear to me to warrant the construction that, generally speaking, the police are obliged to proceed promptly to carry out their duties thereunder without waiting upon third parties whose aid an accused may seek, whether it be his doctor or his lawyer or his parent or guardian. I would not, therefore, agree to any general rule that a request for such third party aid must qualify as reasonable excuse within the meaning of the section.
It follows from my reading of s. 223 that question 1, confined as it is strictly to the issue of reasonable excuse, should be answered in the negative. This brings me to the larger issue posed by question 4, which, put broadly, is whether the administration of s. 223 is in any way qualified by s. 2(c) (ii) and, if so, whether the accused could properly be tried or convicted on the charge against him, laid under s. 223(2), when he was denied an opportunity to consult counsel.
I do not share the opinion of the Ontario Court of Appeal that the right to resort to s. 2(c)
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(ii) in the face of the invocation of s. 223(1) is preserved by giving different meanings to the phrase “without delay” in s. 2(c) (ii) and to the phrase “forthwith or as soon as practicable” in s. 223 (1). Neither taken by themselves nor in the context in which they appear do the phrases convey any lesser sense of urgency in the one case than in the other. I cannot reconcile the Court of Appeal’s view of “forthwith” in the present case with the view it took of that word in its earlier decision in Regina c. MacGillivray[13]. For all practical purposes, “without delay” and “forthwith” are interchangeable. Whatever leeway of time each allows is particular to its own setting; I can see no justification for finding leeway in one by measuring it against the other, except as a matter of preference for the policy which the one or the other expresses.
If there is to be a preference, I think that the language of the Canadian Bill of Rights requires that it be accorded to the guarantees of that enactment. Section 2 enjoins a construction and application of a law of Canada, in this case s. 223, that would abridge or infringe any of the rights or freedoms recognized in the Canadian Bill of Rights; and one of these is the right of an arrested or detained person to retain and instruct counsel without delay. I must note however that in particularizing certain rights, s. 2 speaks in terms of depriving an arrested or detained person of the right to retain and instruct counsel without delay. I do not see that this weakens the injunction against abridgment or infrigement.
On this view, it does not lie with an arresting police officer to determine in his discretion or on a superior’s instructions whether or when to permit an arrested person to contact his counsel. The right to retain and instruct counsel without delay
[Page 953]
can only have meaning to an arrested or detained person if it is taken as raising a correlative obligation upon the police authorities to facilitate to reach counsel, if granted, would mean inability contact with counsel. This means allowing him upon his request to use the telephone for that purpose if one is available. I am not concerned in this case with determining how many calls must be permitted. Here, on the facts, the accused was prevented from making even one. I am content to say for the purposes of this case that the accused’s right under s. 2(c) (ii) would have been sufficiently recognized if, having been permitted to telephone, he had reached his counsel and had spoken with him over the telephone. I would not construe the right given by s. 2(c)(ii), when invoked by an accused upon whom a demand is made under s. 223(1), as entitling him to insist on the personal attendance of his counsel if he can reach him by telephone. I refrain from enlarging on the matters mentioned in this paragraph of my reasons because it is better that this be done when particular cases call for it.
On the facts of the present case, it appears to me quite probable that an opportunity could have been given to the accused to try to reach counsel consistently with requiring him to submit to the breath test within the two hour period within which an analyst’s certificate of the result of the test would be admissible as prima facie proof of the proportion of alcohol in the accused’s blood. The stated case shows that it was about 12:45 a.m. when the accused was seen by a police constable driving a motor vehicle; and it was about 1 a.m. the same day that the accused, having been arrested and taken to a police station, was asked to provide a breath sample; and it was at that time that he asked for an opportunity to speak to his lawyer and refused to give a breath sample when he was denied that opportunity. He did speak to his lawyer about 3 a.m. the same day, and then offered to give a breath sample but his offer was refused. I assume that it was refused because of the lapse of the two hour period.
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Before turning to my view of the consequences that flow from the state of the facts herein and from the probability that I have indicated, I wish to face up to the situation where the request to take the breath sample within the two hours mentioned in s. 223(1) and s. 224A(c)(ii), thus obliging the Crown to prove its case without the benefit of a rebuttable presumption. Weighing the respective interests involved, I have no doubt that primacy must be given to the substantive protection accorded by the Canadian Bill of Rights rather than to the statutory rule of evidence embodied in s. 224A(c) (ii). I cannot be persuaded that it is more important for the Crown, to whom ordinary modes of proof are available, to have the benefit of a rebuttable presumption through an analyst’s certificate than it is for an accused to have the benefit of counsel.
Having regard to the facts and to the probability stated, the remaining issue is whether the improper denial of an opportunity to consult counsel affects the validity of the information upon which the accused was tried and convicted or the validity of the conviction itself. Question 4 is not framed in a way which expressly raises the validity of the conviction, but I take this to be necessarily involved in it; certainly the case was argued on this basis as well as having been so treated in the respective factums of the parties.
This is not a case where the infringement of the Canadian Bill of Rights renders a federal enactment inoperative. Regina v. Drybones was a case where the particular federal enactment could have no operation at all in the face of the Canadian Bill of Rights. The present case does not present such a blunt face; its facts show that s. 223 can operate with due obedience to the Canadian Bill of Rights. Hence, all that is required is that in the invocation of or exercise of the powers under s. 223 allowance be made for the exercise of the overriding right given by s. 2(c) (ii) of the Canadian Bill of Rights.
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In my view, the result of the failure of the police officer who demanded the breath sample to make that allowance vitiated the conviction in this case. This follows not on any theory that violation of the Canadian Bill of Rights carries this consequence in every criminal case, but because the violation in this case was the very basis upon which the accused was charged with an offence under s. 223(2). In short, the refusal of the accused to give the breath sample until he had an opportunity to consult a lawyer, a position that he was entitled to take on the facts herein and on the application of s. 2(c) (ii) of the Canadian Bill of Rights to those facts, was the foundation of the charge and conviction for refusing to give a breath sample when so requested.
A police officer cannot turn his violation of an accused’s rights into an exercise of lawful powers of his own so as to support a charge of a criminal offence which ordinarily arises if those powers are flouted. Where the accused’s rights have primacy, as is the case here, the police officer cannot assert his own powers as being then lawfully exercised when that assertion amounts to a denial of the rights of an accused.
I am not dealing here with a situation where an offence has been allegedly committed prior to the denial of the right to counsel, or where the denial of the right to counsel, if it occurs first, is unrelated to an offence allegedly committed subsequently. Such cases as Regina v. Steeves[14], O’Connor v. The Queen[15] and Regina v. Ballegeer[16] do not touch the kind of situation presented here, although the last‑mentioned one has some affinity. There, the denial of right to counsel, following a charge against and detention of an accused, from
[Page 956]
whom a statement was subsequently obtained, as a result of which he pleaded guilty, was the basis of an order for a new trial so that the accused could withdraw his plea of guilty and plead not guilty.
It follows from my reasons that I would answer question 1 in the negative and question 4 (in its reference to s. 2(c) (ii)) in the affirmative. In the result, I would allow the appeal, set aside the order of the Ontario Court of Appeal and restore the order of Haines J. quashing the conviction.
Appeal allowed, Abbott, Judson and Pigeon J.J. dissenting.
Solicitor for the appellant: David J.D. Sims, Toronto.
Solicitor for the respondent: The Attorney General of Ontario, Toronto.
Footnotes
- [1] [1972] 1 O.R. 105, 15 C.R.N.S. 387, 4 C.C.C. (2d) 462.
- [2] [1972]S.C.R. 889, 18 C.R.N.S. 281, 7 C.C.C. (2d) 181.
- [3] [1969] 2 All E.R. 1008, 53 Cr. App. R. 438.
- [4] [1971] R.T.R. 358, [1971] Crim. L.R. 369.
- [5] [1972] 1 O.R. 105. 15 C.R.N.S. 387, 4 C.C.C. (2d) 462.
- [6] [1972] S.C.R. 889, 18 C.R.N.S. 281, 7 CC.C. (2d) 181.
- [7] [1969] 2 All E.R. 1008, 53 Cr. App. R. 438.
- [8] [1971] R.T.R. 358, [1971] Crim. L.R. 369.
- [9] [1972] S.C.R. 889, 18 C.R.N.S. 281, 7 C.C.C. (2d) 181.
- [10] [1970] S.C.R. 282, 10 C.R.N.S. 334, 71 W.W.R. 161, [1970] 3 C.C.C. 355, 9 D.L.R. (3d) 473.
- [11] [1969] 2 All E.R. 1008, 53 Cr. App. R. 438.
- [12] [1971] R.T.R. 358, [1971] Crim. L.R. 369.
- [13] [1971] 3 O.R. 452, 4 C.C.C. (2d) 244.
- [14] [1964] 1 C.C.C. 266, 49 M.P.R. 227, 42 C.R. 234, 42 D.L.R. (2d) 335.
- [15] [1966] S.C.R. 619, 48 C.R. 270, [1966] 4 C.C.C. 342, 57 D.L.R. (2d) 123.
- [16] [1969] 3 C.C.C. 353, 66 W.W.R. 570, 1 D.L.R. (3d) 74.
Statutes and regulations cited
-
Canadian Bill of Rights
-
Unresolved citations
- paragraph (ii)
- subsection (1)
- subs. (2)
- s. 78(3) of the Highway Traffic Act
- s s. 15 of the Immigration Act
- paragraph (d)