Hogan v. R., [1975] 2 SCR 574

Supreme Court of Canada

Hogan v. R., [1975] 2 S.C.R. 574

Date: 1974-06-12

Thomas Arthur Hogan Appellant;

and

Her Majesty the Queen Respondent.

1973: November 22; 1974: June 12.

Present: Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Spence, Pigeon, Laskin and Dickson JJ.

ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA, APPEAL DIVISION

Criminal Law—Motor Vehicles—Breathalizer—Refusal of right to counsel—Admissibility of certificate of analysis—Criminal Code, ss. 235, 236, 237—Canadian Bill of Rights, s. 2(c)(ii).

The car driven by the appellant had swerved over the sidewalk and was stopped by a constable who, in conversation with the appellant, noticed a strong smell of alcohol on his breath, blood shot eyes and a flushed face. He then gave him a breathaliser demand. The appellant at the police station asked to speak to his lawyer before taking the test. This request was refused and the appellant was given the alternative of either providing the breath sample forthwith or being charged with refusing to provide a breath sample. The appellant then submitted to the test which indicated a reading of 230 milligrams of alcohol per 100 millilitres of blood. At trial the certificate of analysis was admitted in evidence and the appellant convicted of driving with a blood alcohol level greater than 0.08 contrary to s. 236 of the Criminal Code. The conviction was affirmed by the Appeal Division.

Held (Spence and Laskin JJ. dissenting): The appeal should be dismissed.

Per Fauteux C.J. and Abbott, Martland, Judson, Ritchie and Dickson JJ: The result of the breathaliser test was the only evidence on which the appellant could be convicted and therefore was proof of “the main issue before the court”. Even if this evidence had been improperly or illegally obtained, there were no grounds for excluding it at common law. The certificate was both relevant and cogent and was clearly admissible at common law. Whatever view may be taken of the constitutional impact of the Canadian Bill of Rights it is not the case that whenever there has been a breach of one of the provisions

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of that Bill it justifies the adoption of the “absolute exclusion” rule.

Per Pigeon J.: Even if the Canadian Bill of Rights is given the same effect as a constitutional instrument, this does not mean that a rule of absolute exclusion, which is in derogation of the common law rule should govern the admissibility of evidence obtained whenever there has been a breach of one of the provisions contained in that Bill.

Per Spence J., dissenting: The certificate of the result of the test obtained after a demand made in open defiance of the Canadian Bill of Rights is not a legal demand and therefore not “a demand made under Section 235(1).”

Per Laskin J., dissenting: The prosecution should not be permitted to invoke the special provisions of s. 237 of the Criminal Code after denial of access to counsel in violation of s. 2(c)(ii) of the Canadian Bill of Rights. There being no doubt as to such denial and violation, the Courts must apply a sanction. There is no practical alternative to the rule of exclusion if any serious view at all is to be taken of this breach of the Canadian Bill of Rights.

[King v. The Queen, [1969] 1 A.C. 304 applied; Brownridge v. The Queen, [1972] S.C.R. 926 distinguished; R. v. Wray, [1971] S.C.R. 272; Mapp v. Ohio (1961), 367 U.S. 643; R. v. Drybones, [1970] S.C.R. 282, referred to]

APPEAL from a judgment of the Supreme Court of Nova Scotia, Appeal Division[1], dismissing an appeal against a judgment after trial de novo affirming a conviction for having the control of a motor vehicle while having a blood alcohol level greater than 0.08 contrary to s. 236 of the Criminal Code. Appeal dismissed, Spence and Laskin JJ. dissenting.

R.R. Duplak and R.L. Weldon, for the appellant.

G. Stewart, for the respondent.

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The judgment of Fauteux C.J. and Abbott, Martland, Judson, Ritchie and Dickson JJ. was delivered by

RITCHIE J.—This is an appeal brought, with leave of this Court, from a judgment of the Appeal Division of the Supreme Court of Nova Scotia, which affirmed the judgment of Anderson Co. Ct. J., rendered after a trial de novo whereby he had affirmed the appellant’s conviction entered in the provincial magistrate’s court before M.D. Haley, a judge of that court, on an information charging that he “did unlawfully have the 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 s. 236 of the Criminal Code.

The case presented by the Crown rested on the evidence of the result of a chemical analysis of the breath of the accused made in purported compliance with s. 237 of the Criminal Code, the relevant subsection of which reads as follows:

237. (1) In any proceedings under section 234 or 236,…

(c) where a sample of the breath of the accused has been taken pursuant to a demand made under subsection 235(1), if…

(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,

(iii) the sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and

(iv) a chemical analysis of the sample was made by means of an approved instrument operated by a qualified technician,…

evidence of the result of the chemical analysis so made is, in the absence of any evidence to the contrary, proof of the proportion of alcohol in the blood

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of the accused at the time when the offence was alleged to have been committed;…

Having regard to the arguments presented in this appeal, I think it desirable at the outset to reproduce section 235 of the Criminal Code which reads as follows:

235. (1) Where a peace officer on reasonable and probable grounds believes that a person is committing, or at any time within the preceding two hours has committed, an offence under section 234, 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.

The evidence discloses that at about 1:30 a.m. on June 3, 1972, a constable of the Dartmouth Police Force stopped a car being driven by the appellant because he noticed that it had swerved over the sidewalk. The constable had some conversation with the appellant through the window of the car and he gave the following evidence of his actions and observations:

Q. Now tell me what observations you made of the accused, please?

A. First of all I smelled a strong smell of alcohol on the accused’s breath. Secondly, I noticed the accused had bloodshot eyes and a flushed face.

Q. Did you have any opinion after making your observation as to his condition of sobriety?

A. Yes, I did.

Q. What was your opinion?

A. I …my own opinion he was intoxicated so I gave him a demand regarding the breathalyzer.

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Q. Now what demand did you give him?

A. I demand you accompany me to the Dartmouth Police Station to provide a sample of your breath suitable to be analyzed to determine the amount of alcohol if any in your blood.

Q. Did you tell him anything else?

A. Yes. If he refused this demand he would be charged with refusal.

Q. Now what time was it that you gave him this demand?

A. 1:35 a.m., I looked at my watch at the time.

Q. I take it it was only a matter of a few minutes before that you had seen the car?

A. Yes, it was, sir.

Q. All right, did you go directly back to the station?

A. Yes, I did.

Q. And what happened back there? Very briefly, now?

A. I turned the accused Mr. Hogan over to Constable Gary MacDonald, our qualified breathalyzer operator.

THE COURT: Apparently Mr. Hogan returned to the station with you?

A. Yes, he did.

In describing his actions after the “demand” had been made, the appellant said:

My girlfriend and I both got out of the car and we got in the back of Constable Rafuse’s car and we proceeded to the Dartmouth police station. Upon arrival I asked my girlfriend to call my counsel.

No charge had been laid against the appellant at this stage and he had accordingly not been formally arrested, but he gave the following account of what transpired after his arrival at the police station:

Q. What happened then?

A. I was taken into the breathalyzer room and introduced to constable MacDonald and I was sitting waiting for the test when I heard my counsel.

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Q. What do you mean you heard your counsel?

A. I could hear him through the door my counsel asking if I was at the police station, my counsel was present.

Q. I see, you recognize your counsel’s voice?

A. Yes, I do.

Q. You know it well?

A. Yes.

Q. So you heard his voice asking to see you, before the test was completed?

A. This was before the first test was given, yes.

Q. I see and what did you do at that point?

A. I requested to Constable MacDonald to see my counsel before taking the test and I was told that I didn’t have any right to see anyone until after the test and if I refused the test I would be charged with refusal of the breathalyzer.

Q. I see, so he told you no when you asked to see your counsel?

A. That’s right.

Q. Why did you want to see counsel?

A. I wanted to see counsel to see whether I had to take the test or not.

Q. And then I gather the test was given to you?

A. Yes, I took the test rather than be nailed with refusal.

Q. I see, in other words you took the alternative?

A. Yes.

Q. It was offered to you by Constable MacDonald?

A. Yes.

Q. And that alternative was offered to you in reply to your request for counsel?

A. Yes, it was.

Q. Was counsel present when your test was finished?

A. After I left the room I saw my counsel.

Q. I see and where was he?

A. Counsel was just outside the door to the breathalyzer room.

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Q. At any time was he present during the test?

A. No, he wasn’t.

The result of the breathalizer test was a finding of 230 milligrams of alcohol per 100 millilitres of blood and in the course of his cross-examination the appellant agreed that he had been drinking rum and could have had “a good pint”.

It was contended on behalf of the appellant that the evidence of the result of the chemical analysis of his breath taken by Constable Mac-Donald, who was a qualified technician was inadmissible because it was obtained in violation of s. 2.(c)(ii) of the Canadian Bill of Rights which provides, in part, that:

…no law of Canada shall be construed or applied so as to…

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

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

Counsel for the appellant relied on the case of Brownridge v. The Queen[2], in support of his contention that the evidence of the result of the breathalizer test should have been excluded.

In the Brownridge case it was held that the denial of the right to retain and instruct counsel without delay to an accused person who was under arrest, afforded that person “reasonable excuse” for refusing to comply with the demand made pursuant to s. 223(2) (now 235(2)), supra. In considering whether the Brownridge case can be said to govern the circumstances disclosed in the present case, it is to be remembered that Brownridge had refused to comply with a demand made under the purported authority of s. 235(1), and the only question to be determined was whether his having been denied the right to retain and instruct counsel constituted a “reasonable excuse” for such refusal. As Mr. Justice Laskin (as he then was) said in that case, at p. 954:

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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.

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 carried 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.

In the Brownridge case it was the denial of his right to “retain and instruct counsel without delay” which caused the accused to refuse to comply with the demand to provide a sample of his breath for analysis, whereas in the present case the appellant complied with the demand, albeit reluctantly, and there is no causal connection between the denial of the right to counsel and the obtaining of the certificate of the breathalizer test which led to his conviction.

In my opinion the excerpts from the evidence which I have reproduced above clearly indicate that the initial demand to provide a sample of the breath for analysis was legally made by the constable on the highway in accordance with s.

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235(1) at a time when the appellant was neither “arrested” nor “detained” and he appears to me to have complied with that demand without hesitation at least to the extent of agreeing “to accompany the peace officer for the purpose of enabling such a sample to be taken.” There was no request for counsel at this stage, and it was only after he had reached the police station and was sitting waiting for the test that he heard the voice of the lawyer whom he had retained through the agency of his girlfriend and requested to see him in order to find out whether he had to take the test or not. It was then that Constable MacDonald told him that he “didn’t have any right to see anyone until after the test and if I refused the test I would be charged with refusal of the breathalizer”. The appellant then took the test.

I have had the advantage of reading the reasons for judgment prepared for delivery by the present Chief Justice and I agree with him that the fact that the appellant could have refused the breathalizer test unless he first consulted counsel does not mean that the breath test evidence was procured by illegal means or trickery and I agree with him also that the common law rule of admissibility of illegally or improperly obtained evidence rests primarily on the relevancy of that evidence subject only to the discretion of the trial judge to exclude it on the ground of unfairness as that word was interpreted in this Court in The Queen v. Wray[3].

The result of the breathalizer test in the present case was not only relevant, it was in fact of itself the only evidence upon which the appellant could have been convicted of the offence of which he was charged and it therefore constitutes proof of “the main issue before the court”. Even if this evidence had been improperly or illegally obtained, there were therefore no grounds for excluding it at common law. In the case of an accused who the

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police considered to be intoxicated before the test was taken and who himself agreed that he could have had “a good pint of rum”, it can hardly be characterized as unfair to accept evidence in proof of the exact quantity of alcohol that he had absorbed into his blood stream. Apart from the result of the test constituting proof of an offence under s. 236, it also afforded confirmation of the diagnosis made by the police officer and served to corroborate the appellant’s own estimate of the amount of rum which he had consumed.

As the technician’s certificate was both relevant and cogent it was, in my opinion, clearly admissible at common law and the courts at first instance and on appeal were correct in accepting it in accordance with the rules of evidence governing the trial of criminal cases as they presently exist in this country.

Laskin C.J., however, characterizes the Canadian Bill of Rights as a “quasi constitutional instrument” by which I take him to mean that its provisions are to be construed and applied as if they were constitutional provisions, and in so doing he would adopt as a matter of policy for Canada, apart from and at variance with the common law position, the rule of absolute exclusion of all evidence obtained under circumstances where one of the provisions of the Canadian Bill of Rights has been violated. This approach stems from an acceptance of the reasoning of the Supreme Court of the United States in such cases as Mapp v. Ohio[4], where that rule was accepted in relation to evidence obtained after the violation of a right guaranteed by the American Constitution. These American cases, however, turn on the interpretation of a Constitution basically different from our own and particularly on the effect to be given to the “due process of law” provision of the 14th Amendment of that Constitution for which I am unable to find any counterpart in the British

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North America Act, which is the source of the legislative authority of the Parliament of Canada and is characterized in the British North America Act (No. 2) 1949 (13 Geo. VI Ch. 81) as “the Constitution of Canada”.

The case of The Queen v. Drybones,[5] is authority for the proposition that any law of Canada which abrogates, abridges or infringes any of the rights guaranteed by the Canadian Bill of Rights should be declared inoperative and to this extent it accorded a degree of paramountcy to the provisions of that statute, but whatever view may be taken of the constitutional impact of the Bill of Rights, and with all respect for those who may have a different opinion, I cannot agree that, wherever there has been a breach of one of the provisions of that Bill, it justifies the adoption of the rule of “absolute exclusion” on the American model which is in derogation of the common law rule long accepted in this country.

I am, on the other hand, in agreement with the reasoning expressed by Lord Hodson in King v. The Queen[6], where the Privy Council had to consider the effect of the search and seizure provisions of the Jamaican Constitution on the judge’s discretion respecting the exclusion of evidence obtained pursuant to such a search and seizure.

The provisions of the Jamaica (Constitution) Order in Council, 1962, Schedule 2, section 19 read as follows:

(1) Except with his own consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or

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in contravention of this section to the extent that the law in question make provision which is reasonably required… for the purpose of preventing or detecting crime…

In the King case the appellant had been found to be in possession of dangerous drugs after a search and seizure contrary to the provisions of the Constitution, but in concluding that the trial judge had acted properly in failing to exclude this evidence, Lord Hodson said:

This constitutional right may or may not be enshrined in a written constitution, but it seems to their Lordships that it matters not whether it depends on such enshrinement or simply upon the common law as it would do in this country. In either event the discretion of the court must be exercised and has not been taken away by the declaration of the right in written form.

It follows from all the above that I am of opinion that the evidence of the result of the breathalizer test in the present case was properly admitted in evidence and I would accordingly dismiss this appeal.

PIGEON J.—I agree with Ritchie J. that this appeal should be dismissed on the basis that, even if the Canadian Bill of Rights is given the same effect as a constitutional instrument, this does not mean that a rule of absolute exclusion, which is in derogation of the common law rule, should govern the admissibility of evidence obtained wherever there has been a breach of one of the provisions contained in that Bill.

SPENCE J. (dissenting)—I have had the opportunity to read the reasons for judgment written by my brother Laskin. I agree with his conclusion and with the reasons for that conclusion. I am also of the opinion that the appeal could also be allowed upon the basis that the word “demand” in s. 237(1)(c) and (f) of the Criminal Code must be interpreted to mean a lawful demand and that a demand which was made in open defiance of the provisions of the Bill of Rights could not be a lawful demand. Therefore, the certificate of the result of the test obtained

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after such unlawful demand is not one made admissible by the provisions of s. 237.

I, therefore, would allow the appeal.

LASKIN J. (dissenting)—The issue in this appeal may be formulated as follows. What is the effect of a denial by a police officer of a right to counsel under s. 2(c)(ii) of the Canadian Bill of Rights, 1960 (Can.), c. 44 upon the admissibility of subsequently obtained breathalizer evidence by which the appellant accused may be convicted of an offence under Criminal Code s. 236? Under s. 2(c)(ii), no law of Canada shall be construed or applied so as to deprive a person, who has been arrested or detained, of the right to retain and instruct counsel without delay. The offence under s. 236 is driving or having care or control of a motor vehicle while having a reading of alcohol in the blood exceeding 0.08.

In Brownridge v. The Queen[7], this Court decided that an arrested person who refused to submit to a breath test when he was denied an opportunity to consult counsel before taking the test could not be found guilty of an offence under what is now Criminal Code s. 235(2). That provision, so far as material, makes it an offence for a person without reasonable excuse to fail or refuse to comply with a demand by a peace officer under s. 235(1) to take a breath test. The case now in appeal to this Court involves an accused who, similarly, was denied an opportunity to consult counsel before submitting to a demand that he take a breath test but who, unlike Brownridge, did not continue to insist that he must first consult his counsel. He yielded to the demand and took the test. His conviction under s. 236 was founded upon the evidence of the breathalizer technician obtained

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in accordance with Criminal Code s. 237. It was conceded that without this evidence, obtained following denial of the accused’s request to see his counsel (who was then in the police station to attend upon the accused), the conviction cannot stand.

It is common both to Brownridge and to the present case that access to counsel was not for the purpose nor would it have had the effect of delaying the taking of the breath sample beyond the two hour period specified in s. 237(1)(c)(ii). In this case, the accused was confronted by a police officer at about 1.35 a.m. and then asked to go to the police station, and they arrived there at 1.55 a.m., whereupon steps were taken to administer a breath test. The accused had asked his female companion to get in touch with his lawyer, and the latter had come immediately to the police station and the accused heard his voice in an adjoining room. The record is clear that he asked to see and consult with the lawyer but was categorically refused an opportunity to do so. The demand that he submit to a breath test was renewed and the accused submitted to it.

It is not disputed that the peace officer who conducted the accused to the police station had at the time reasonable and probable cause, within s. 235(1), to make the demand that the accused take a breath test and accompany the peace officer for that purpose. There is no doubt, therefore, that the accused was “detained” within the meaning of s. 2(c)(ii) of the Canadian Bill of Rights; he risked prosecution under s. 235(2) if, without reasonable excuse, he refused the demand which involved accompanying the peace officer to fulfil it.

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Counsel for the appellant urged that the demand must be a lawful one, and contended that it could not be when it was supported by an unlawful denial of right to counsel. In my opinion, what is involved in this submission, if it is not to be treated as an effort to invalidate retroactively a demand that was properly made in the first place, is an allegation that the demand, being a continuing one to the time when the breathalizer test is given, may justifiably be resisted at the point where the right to consult counsel is denied before the test is taken. This, however, is the Brownridge case, and turns on whether a charge under s. 235(2) will succeed. In the present case, the issue goes a little deeper, and the question is not the lawfulness of a resistance to the continuing demand but whether, failing resistance, an accused, who has wrongfully been denied counsel before taking the test, may successfully contest the admissibility of the breathalizer evidence which, taken under the special provisions for its use prescribed by s. 237, is tendered in support of a charge under s. 236.

In my opinion, the accused appellant is entitled to succeed in this contention. I do not find it necessary to gloss the word “demand” in s. 237(1)(c) and (f) to mean “lawful demand”, consonant with the Canadian Bill of Rights, in order to qualify the breathalizer evidence as receivable, with all the statutory advantages for its reception provided by s. 237. Strictly speaking, if the demand is made in conformity with s. 235(1) this satisfies s. 237(1)(c) and (f). The more relevant consideration is the relationship between the Canadian Bill of Rights and the resort to special statutory methods of proof where there is previous denial to an accused of a related guarantee of the Canadian Bill of Rights. In this connection, I point out that there

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was in the present case no incompatibility between recognition of the particular guarantee of access to counsel and resort to the special mode of proof; and it was clearly the right of the accused to have access to counsel before the authorities proceeded to administer the breathalizer test.

The question that arises, therefore, is whether the vindication of this right should depend only on the fortitude or resoluteness of an accused so as to give rise to a Brownridge situation, or whether there is not also an available sanction of a ruling of inadmissibility where the police authorities are able to overcome an accused’s resistance to a breathalizer test without prior access to counsel. Nothing short of this would give reasonable assurance of respect of an individual’s right to counsel by police authorities whose duty to enforce the law goes hand in hand with a duty to obey it.

There is no suggestion here of any physical force in the ultimate submission of the accused without having had his right to counsel recognized, but I do not think that any distinction should be drawn in the establishment of principle according to whether an accused yields through fear or a feeling of helplessness or as a result of polite or firm importuning or aggressive badgering. I should note also that there was no contention of waiver by the accused of his right to counsel, assuming that would be an answer to an alleged breach of any of his rights as an individual under the Canadian Bill of Rights.

The present case does not involve this Court in any reassessment of the principles underlying the admissibility of illegally obtained evidence as they developed at common law. We have a statutory policy to administer, one which this Court has properly recognized as giving primacy to the guarantees of the Canadian Bill of Rights by way of a positive suppressive effect upon the

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operation and application of federal legislation: see The Queen v. Drybones[8],. The result may be, as in Drybones, to render federal legislation inoperative or, as in Brownridge, federal legislation may become inapplicable in the particular situation while otherwise remaining operative. The sanction in the present case would be to preclude use against a person of a special form of proof when it is obtained following a deliberate violation of a right of that person under the Canadian Bill of Rights. If, as the Bill enjoins, s. 237 of the Criminal Code is not to be applied so as to deprive a detained person of access to counsel, I do not see how its provisions can be utilized against a detained person in any case where that person’s right of access to counsel has been denied in the course of that utilization. Moreover, it cannot matter that resort to s. 237 is the only way in which proof can be made of the main element of the offence defined in s. 236.

Counsel for the Crown in this appeal put forward the decision of the Nova Scotia Supreme Court, sitting en banc, in Regina v. Steeves[9], and the decision of this Court in O’Connor v. The Queen[10], in support of the conviction of the appellant. Both of these cases antedated Drybones. In Sleeves, the accused had gone with his counsel to a police station to make out a motor vehicle accident report and, when questioned by the police after proper warning, he was advised by counsel not to answer certain questions. Thereupon he was arrested for failing to stop at the scene of an accident and taken for interrogation out of the presence of his counsel, who was refused permission to accompany him and later was refused permission to see him. During his interrogation the accused divulged the name of a person who was apparently called

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as a Crown witness. The magistrate who tried the case found that the accused had been denied access to counsel following his arrest, in violation of the Canadian Bill of Rights; and although the Crown’s evidence on the charge had been heard the magistrate dismissed it on the ground that because of the denial of access to counsel he had been denied a fair trial. On appeal by way of case stated, it was held that the magistrate was wrong in dismissing the charge when he found a violation of the Canadian Bill of Rights, and the case was remitted to the magistrate for adjudication on the merits on the evidence adduced before him. Whether the result in Steeves turned on the fact that the denial of access to counsel in respect of the pre-trial interrogation had no bearing on the fairness of the succeeding trial (as Ilsley C.J. said, speaking for the majority), or did not involve a denial of a fair hearing under s. 2(e) of the Canadian Bill of Rights (as Coffin J., concurring, said), it is not in point or persuasive for the present case. In the perspective of the present case, and in the light of Drybones, the proper result in Steeves would be not to dismiss the charge against the accused but to require the Crown to support the charge against him without the benefit of the testimony obtained by denying to the accused his right of access to counsel.

In Steeves, Coffin J. also made the point that the accused was not a compellable witness at the pre-trial interrogation. If any analogy is to be drawn to the present case, the fact is that the accused here was under compulsion to provide a breath sample unless he had a reasonable excuse for refusing to submit. If the analogy be pursued, it would seem to follow that because of the compellability, the denial of access to

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counsel should result in exclusion of the evidence obtained following that denial.

O’Connor v. The Queen, although having some similarity to the present case differs in at least two significant ways, in addition to being a pre-Drybones decision. The accused O’Connor was charged with and convicted of impaired driving. He had submitted to two breathalizer tests before he knew he was under arrest and before he was told he was going to be charged. After taking the tests he asked to get in touch with his lawyer and was allowed to make a telephone call which proved unproductive. He was denied permission to make a second call. Ritchie J. speaking for the Court majority noted (at p. 625 of [1966] S.C.R.) that “on the facts as stated by the learned magistrate it is not suggested that the appellant had been deprived of his rights under s. 2(c)(ii) until after he had voluntarily submitted to the two breathalizer tests being administered to him and it is a little difficult to understand the grounds upon which Mr. Justice Haines decided that this evidence should be excluded”. In the present case the denial of access to counsel occurred before any breathalizer test was taken.

The second significant difference arises from the further observation of Ritchie J. that even if the absence of the accused’s lawyer deprived him of being advised of his right to refuse to take the tests (under the law as it then stood) the breathalizer evidence was nonetheless admissible because of the then s. 224(3) of the Criminal Code, making evidence of a breath test admissible notwithstanding the want of any prior warning to the accused that he need not give the sample or that the results of the analysis thereof might be adduced in evidence. Section 224(3), referred to in the O’Connor case, is now found in another context in s. 237(1)(b) but with the important exclusion from its provisions

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of “a sample taken pursuant to a demand made under s. 235(1)”. Special provision for the taking of a sample of breath and for the admissibility of evidence of the analysis thereof is made in s. 237 (1)(c) which opens with the words “where a sample of the breath of the accused has been taken pursuant to a demand made under section 235(1)”. That demand relates to reasonable and probable grounds for believing that the person of whom the demand is made has been driving while impaired. The breath sample analysis under s. 237(1)(c) is related more directly however to the offence defined in s. 236, of which the accused in this case was convicted.

Finally, as to the O’Connor case, it was decided on a strict view of the questions put by way of stated case, and they did not involve any issue of the admissibility or exclusion of evidence based upon the previous denial of access to counsel. Ritchie J. put the matter clearly as follows (at p. 627 of [1966] S.C.R.):

As I have indicated, I am of opinion that when Mr. Justice Haines decided that the evidence of the breathalizer tests should be ignored, he was deciding a question of law which did not arise out of the stated case and which does not form one of the grounds upon which leave to appeal to this Court was granted.

Although it appears to me to be enough to rest my decision in this appeal on the operative view of the Canadian Bill of Rights taken in Drybones, I feel constrained to elaborate on the considerations which move me to allow this appeal. I do this because otherwise a comparison will inevitably be drawn between the policy underlying the admissibility of relevant evidence, no matter how obtained (unless it falls within the involuntary confession category) and the contrary policy which I would enforce here,

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and an explanation should be offered for preferring the latter. I approach my elaboration by noting that the present case does not fall easily into the class of cases where evidence is illegally obtained in the sense that illegal means or acts are the vehicles through which the impugned evidence is procured, as for example, by illegal search or seizure or by trespass or by force; nor does it fall easily within that class of cases where tricks or falsehoods are used to get evidence against an accused person. Forthright denial of access to counsel was not here a means of obtaining the breath tests, to which the accused was required to submit unless he had a reasonable excuse for refusing; and the fact that he could have refused, unless he first consulted counsel, does not mean that the breath test evidence was procured by illegal means or trickery as those terms were understood and considered in Kuruma v. The Queen[11]. I need not therefore assess any of the cases in the two classes but will deal with them overall in terms of the judicial policy or policies that they exhibit.

The common law rule of admissibility of illegally or improperly obtained evidence rests simply on the relevancy of the evidence to issues on which it is adduced, without regard to the means by which it was procured (confessions or out-of-court statements by an accused aside). The rule in Canada goes back to Regina v. Doyle[12], where it was said, at p. 353, in respect of evidence obtained by execution of an illegal search warrant, that “the evidence is admissible so long as the fact so wrongly discovered is a fact—apart from the manner in

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which it was discovered—admissible against the party.” There is no thought that the criminal should go free because the constable has blundered, (to use the words of Judge Cardozo in People v. Defore[13], at p. 21), subject only to a discretion in the trial judge to exclude the evidence on the ground of unfairness. In this Court, the discretion has been very narrowly confined: see The Queen v. Wray[14]; and a recent review of Commonwealth case law carries the conclusion that “this discretion is very rarely acted on”: see Heydon, Illegally Obtained Evidence (1), [1973] Crim.L.Rev. 603, at p. 605; and see also Heydon, Illegally Obtained Evidence (2), [1973] Crim.L.Rev. 690. Illegalities or improprieties attending the eliciting or discovery of relevant evidence are, on the orthodox common law view, res inter alios acta. They are said to have their sanction in separate criminal or civil proceedings, of which there is little evidence, either as to recourse or effectiveness; or, perhaps, in internal disciplinary proceedings against offending constables, a matter on which there is no reliable data in this country.

The choice of policy here is to favour the social interest in the repression of crime despite the unlawful invasion of individual interests and despite the fact that the invasion is by public officers charged with law enforcement. Short of legislative direction, it might have been expected that the common law would seek to balance the competing interests by weighing the social interest in the particular case against the gravity or character of the invasion, leaving it to the discretion of the trial judge whether the balance should be struck in favour of reception or exclusion of particular evidence. I have already indicated that the discretion has been narrowed,

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and, I would add, to an extent that underlines a wide preference for admissibility. It appears that only in a line of Scottish and Irish cases has there been any consideration of striking a balance between the competing interests involved where there is a challenge to admissibility because of illegality or impropriety: see Heydon, op.cit., at pp. 607-610; and see also Cowen and Carter, Essays on the Law of Evidence (1956), The Admissibility of Evidence Obtained through Illegal Searches and Seizures, at pp. 83-92. Relevant to that consideration would be, of course, the trustworthiness of the tendered evidence.

Opposed to the dominant common law position is that at which the Supreme Court of the United States has arrived in enforcing the guarantees of the Fourth Amendment of the Constitution, applicable to the central authorities, against unreasonable searches and seizures, and, through it, those of the Fourteenth Amendment enjoining the States not to “deprive any person of life, liberty or property without due process of law”. In general, a rule of exclusion of illegally obtained evidence, tendered to show the guilt of an accused, is enforced both in federal and state prosecutions: see Weeks v. U.S.[15], Mapp v. Ohio[16].

The American exclusionary rule, in enforcement of constitutional guarantees, is as much a judicial creation as was the common law of admissibility. It is not dictated by the Constitution, but its rationale appears to be that the constitutional guarantees cannot be adequately served if their vindication is left to civil actions in tort or criminal prosecutions, and that a check rein on illegal police activity which invades constitutional rights can best be held by

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excluding evidence obtained through such invasions. Whether this has resulted or can result in securing or improving respect for constitutional guarantees is not an easy question to answer, although attempts are being made to do so through empirical studies: see Spiotto, Search and Seizure: An Empirical Study of the Exclusionary Rule and Its Alternative (1973), 2 Jo.Leg.S. 243.

It may be said that the exclusion of relevant evidence is no way to control illegal police practices and that such exclusion merely allows a wrongdoer to escape conviction. Yet where constitutional guarantees are concerned, the more pertinent consideration is whether those guarantees, as fundamentals of the particular society, should be at the mercy of law enforcement officers and a blind eye turned to their invasion because it is more important to secure a conviction. The contention that it is the duty of the Courts to get at the truth has in it too much of the philosophy of the end justifying the means; it would equally challenge the present law as to confessions and other out-of-Court statements by an accused. In the United States, its Supreme Court, after weighing over many years whether other methods than exclusion of evidence should be invoked to deter illegal searches and seizures in state as well as in federal prosecutions, concluded that the constitutional guarantees could best be upheld by a rule of exclusion.

The Canadian Bill of Rights is a half-way house between a purely common law regime and a constitutional one; it may aptly be described as a quasi-constitutional instrument. It does not embody any sanctions for the enforcement of its terms, but it must be the

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function of the Courts to provide them in the light of the judicial view of the impact of that enactment. The Drybones case has established what the impact is, and I have no reason to depart from the position there taken. In the light of that position, it is to me entirely consistent, and appropriate, that the prosecution in the present case should not be permitted to invoke the special evidentiary provisions of s. 237 of the Criminal Code when they have been resorted to after denial of access to counsel in violation of s. 2(c)(ii) of the Canadian Bill of Rights. There being no doubt as to such denial and violation, the Courts must apply a sanction. We would not be justified in simply ignoring the breach of a declared fundamental right or in letting it go merely with words of reprobation. Moreover, so far as denial of access to counsel is concerned, I see no practical alternative to a rule of exclusion if any serious view at all is to be taken, as I think it should be, of this breach of the Canadian Bill of Rights.

My conclusion does not, of course, preclude proof otherwise than by resort to s. 237, and such proof might well have been available to the Crown in respect of a charge of impaired driving under s. 234, had such a charge been laid in addition to or in lieu of a charge under s. 236.

I would, therefore, allow this appeal, set aside the judgments below and quash the conviction.

Appeal dismissed, SPENCE and LASKIN JJ. dissenting.

Solicitor for the appellant: Randall R. Duplak, Dartmouth.

Solicitor for the respondent: Graham W. Stewart, Halifax.