Present: Dickson C.J. and Beetz, McIntyre, Lamer, Wilson, Le Dain and La Forest JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Charter of Rights ‑‑ Right to counsel ‑‑ Impaired driving ‑‑ Police informing accused of his right to counsel ‑‑ Accused calling wife and requesting her to contact lawyer ‑‑ Police demand for a breath sample made immediately after phone call ‑‑ Whether right to counsel infringed ‑‑ Canadian Charter of Rights and Freedoms, s. 10(b) .
Constitutional law ‑‑ Charter of Rights ‑‑ Admissibility of evidence ‑‑ Bringing administration of justice into disrepute ‑‑ Impaired driving ‑‑ Police informing accused of his right to counsel ‑‑ Accused calling wife and requesting her to contact lawyer ‑‑ Police demand for a breath sample made immediately after phone call ‑‑ Right to counsel infringed ‑‑ Whether breathalyzer evidence should be excluded pursuant to s. 24(2) of the Charter .
Evidence ‑‑ Admissibility ‑‑ Bringing administration of justice into disrepute ‑‑ Impaired driving ‑‑ Police informing accused of his right to counsel ‑‑ Accused calling wife and requesting her to contact lawyer ‑‑ Police demand for a breath sample made immediately after phone call ‑‑ Right to counsel infringed ‑‑ Whether breathalyzer evidence should be excluded pursuant to s. 24(2) of the Charter .
The accused was charged with driving a motor vehicle while having an excessive blood alcohol level. After his arrest, he was promptly informed of his right to counsel and given an opportunity to make a phone call. He called his wife and asked her to contact a lawyer. Although there was ample time for compliance with the two‑hour limit for the taking of breath samples, the accused, at the request of the police, gave his first breath sample immediately after his phone call. At trial, the accused was convicted. The trial judge found that there had been no violation of the accused's right to counsel, and that, assuming there had been, the breathalyzer evidence should not be excluded under s. 24(2) of the Charter . The accused's appeal was allowed by the District Court but the judgment was set aside by the Court of Appeal. This appeal is to determine whether the accused's right to counsel under the Charter has been violated and, if so, whether the breathalyzer evidence should be excluded under s. 24(2) .
Held: The appeal should be dismissed.
The accused's right to counsel guaranteed by s. 10( b ) of the Charter was violated. The police, following the request for counsel, did not afford the accused a reasonable opportunity to contact a lawyer through his wife before calling upon him to give a breath sample. But the breathalyzer evidence should not be excluded under s. 24(2) . The police's hastiness to proceed was provoked by the accused's behaviour. Throughout his encounter with the police, the accused was actively obstructing the investigation and it appeared to the police that he was stalling when he was given the phone to contact a lawyer. If an accused is not diligent in the exercise of his rights, the correlative duties imposed on the police in a situation where an accused has requested the assistance of counsel are suspended and are not a bar to their continuing their investigation and calling upon the accused to give a breath sample. While this is not the case here, the accused's conduct was, to some degree, misleading in that regard. The admission of the breathalyzer evidence obtained would not, having regard to all of the circumstances in this case, bring the administration of justice into disrepute.
Cases Cited
Referred to: R. v. Manninen, [1987] 1 S.C.R. 1233.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , ss. 10 ( b ) , 24(2) .
APPEAL from a judgment of the Ontario Court of Appeal, setting aside a judgment of the District Court (1985), 34 M.V.R. 117, allowing the accused's appeal from his conviction for impaired driving. Appeal dismissed.
Terri H. Semanyk, for the appellant.
David A. Fairgrieve, for the respondent.
The judgment of the Court was delivered by
1. Lamer J.‑‑This appeal comes to us with leave to appellant pursuant to the reversal by the Court of Appeal of Ontario of an acquittal pronounced by a District Court judge sitting in appeal of a Summary Conviction Trial Court. The charge was one of operating a motor vehicle with more than 80 mg of alcohol in the blood.
2. Throughout, there were two issues, that is, whether the accused's right to counsel under the Canadian Charter of Rights and Freedoms had been violated and, if so, whether, as a result, the breathalyzer evidence obtained under the particular circumstances of this case was to be excluded under s. 24(2).
3. Both the trial and District Court judges made a thorough exposition of their views on the law and raised and disposed of important issues relating to the nature of the right to counsel granted under the Charter , the duties of the police in that regard, and whether the detainee's conduct constituted a waiver of his right to counsel before being called upon "to blow". The trial judge found that there was no violation of the accused's right under s. 10(b). Though this finding put an end to the matter in his court, he nevertheless addressed the s. 24(2) issue and found that under the circumstances he would not in any event have excluded the evidence.
4. The District Court judge disagreed on both issues and entered an acquittal: (1985), 34 M.V.R. 117.
5. The Court of Appeal reviewed this acquittal by an endorsement on record, as follows:
We are all of the opinion that this appeal must succeed. We think the Judge on Appeal was wrong in holding that the Respondent had been denied his rights under sec. 10(B) of the Charter . The Order on Appeal is set aside and the conviction at trial restored.
6. As may be noted the Court of Appeal did not adopt the reasoning of the trial judge nor are we told in what way, in their view, the District Court judge erred. Of course they needed not address the s. 24(2) issue and did not. Given the fact that this appeal should in my view fail on the second issue and the paucity of reasons of the Court of Appeal, I think it is sufficient and probably prudent to just say that, as regards a violation of the appellant's rights under s. 10( b ) of the Charter , I am in substantial agreement with the reasons given by the District Court judge and would restore his finding that the appellant's rights were violated. However, I must agree with the trial judge's conclusion that under the particular circumstances of this case, the evidence should not be excluded.
7. In this case the accused was promptly informed of his right to counsel, asked for a lawyer, was given a phone and placed a call to his wife. It appears, though the evidence on this point is not all that clear, that she was to call a lawyer for him. Right after that call, the police officers requested that the accused give his first sample of breath, a request he complied with. When that request was made, there remained ample time to comply with the requirements set down in the Criminal Code as regards the time limits for the taking of breath samples; there was thus no urgency to proceed, and to do so right after his first call was what, in my opinion, triggered the violation of this accused's rights.
8. From the moment the accused was intercepted on the road to the moment he was asked to give the first sample of his breath his behaviour was violent, vulgar, and obnoxious. A reading of the record and the findings of fact below satisfy me that, while the police, following the request for counsel, did not, as they must, afford the accused a reasonable opportunity to contact a lawyer through his wife before calling upon him to give a breath sample, their haste in the matter was provoked by the accused's behaviour. Indeed, throughout this encounter with the police, the accused, as was found by the trial judge as a matter of fact, "was deliberately attempting to make the investigation difficult" and "was actively obstructing it". As testified to by a police officer, it appeared to the police that the accused was stalling when he was given the phone to contact a lawyer.
9. Generally speaking, if a detainee is not being reasonably diligent in the exercise of his rights, the correlative duties set out in this Court's decision in R. v. Manninen, [1987] 1 S.C.R. 1233, imposed on the police in a situation where a detainee has requested the assistance of counsel are suspended and are not a bar to their continuing their investigation and calling upon him to give a sample of his breath. While this is not the case here, the accused's conduct was, to some degree, misleading in that regard. While the police's hastiness does not change the fact that the detainee's right to counsel was violated, the reasons therefor make it understandable and are relevant when one addresses the s. 24(2) issue. In my view the admission of the evidence obtained would not, having regard to all of the circumstances, bring the administration of justice into disrepute.
10. For these reasons, I would dismiss the appeal.
Appeal dismissed.
Solicitors for the appellant: Shanbaum, Semanyk & Story, Ottawa.
Solicitor for the respondent: The Attorney General for Ontario, Toronto.
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