Curr v. The Queen, [1972] SCR 889

Supreme Court of Canada

Curr v. The Queen [1972] S.C.R. 889

Date:1972-05-01

John Leonard Curr Appellant;

and

Her Majesty The Queen Respondent. 1971: November 17, 18; 1972: May 1.

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

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Criminal law-Civil rights-Motor vehicles-Due process of law - Self -crimination - Compulsory breath test Protection against self-crimination--Sections 223 and 2244(3) of the Criminal Code not inoperative-Canadian Bill of Rights, 1960 (Can.), c. 44, ss. 1(a), (b), 2(d), (e), (f)-Criminal Code, 1953-54 (Can.) , c. 51, ss. 223, 224A(3).

The appellant was charged under s. 223(2) of the Criminal Code with failing or refusing, without reasonable excuse, to comply with a demand by a peace officer under s. 223(1) for a breath sample to enable an analysis to be made to determine the pro-portion of alcohol in his blood. The Provincial Judge dismissed the charge on the ground that s. 223 and s. 224A(3), providing that the evidence of such re­fusal was admissible, were inoperative because of the Canadian Bill of Rights. On appeal by the Crown by way of stated case, the decision was reversed. An appeal from that decision was dismissed by the Court of Appeal without recorded reasons. The ap­pellant was granted leave to appeal to this Court.

Held: The appeal should be dismissed.

Per Fauteux C.J. and Martland, Judson and Ritchie JJ.: The meaning to be given to the language employed in the Bill of Rights is the meaning which it bore in Canada at the time when the Bill was enacted. It follows that the phrase "due process of law" as used in s. 1(a) is to be construed as mean­ing "according to the legal processes recognized by Parliament and the Courts in Canada." Therefore, ss. 223 and 224A(3) of the Code, enabling a peace officer to compel a citizen to submit to a breath test, does not offend against the right of the individual not to be deprived of the security of his person "without due, process of law."

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Furthermore, these two sections do not abridge the accused's right to "protection against self-crimi­nation". These words, as they occur in s. 2(d) of the Bill of Rights are to be taken as meaning pro­tection against "self-incriminating statements" and not as embracing "incriminating conditions of the body" such as the alcoholic content of the breath or blood.

Per Abbott, Martland, Judson, Hall, Spence, Pigeon and Laskin JJ.: There was no violation of s. 2(e). The appellant was heard on the charge against him and had full opportunity to make his defence. As to s. 2(f), if it is compatible with the Canadian Bill of Rights to require a person, on pain of liability to punishment, to give a sample of his breath, there is no violation of s. 2(f) in making evidence of unjustified refusal admissible on a charge of driving under s. 222,

It is not an answer to reliance by the appellant on s. 1(a) and s. 1(b) that s. 223 does not discriminate against any person by reason of race, national ori­gin, colour, religion or sex. The absence of such discrimination still leaves open the question whether s. 223 can be construed and applied without abro­gating, abridging or infringing the guarantees of "due process of law" under s. 1(a) and "the pro­tection of the law" under s. 1(b).

The phrase "due process of law" has its context in the words of s. 1(a) that precede it and, in the present case, "the right of the individual to ... security of the person". In so far as s. 223, and especially 223(1), may be regarded as a procedural aid to the enforcement of the substantive offence created by s. 222, it is not obnoxious to s. 1(a). No more can be read into s. 1(a) from a procedural standpoint than is already comprehended by s. 2(e) and s. 2(f). In so far as s. 223 may be regarded, in the light of s. 223(2), as having specific substantive effect in itself, s. 1(a) does not make it inoperative. Assuming that "except by due process of law" provides a means of controlling substantive federal legislation, compelling reasons ought to be advanced to justify the Court in this case to employ a statutory, as contrasted with a constitutional, jurisdiction to deny operative effect to a substantive measure duly enacted by Parliament. Those reasons must relate to objective and manageable standards

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by which a Court should be guided. Neither reasons nor underlying standards were offered here.

There is no merit in the submission that the pre-s. 223 state of the law which was favourable to a potential accused person, could not be changed to his disadvantage without offending s. 1(b). The Canadian Bill of Rights did not freeze the federal statutes on the day it came into effect.

The appellant's submission under s. (2) fails. A peace officer acting under s. 223(1) is not covered by the words "other authority" in s. 2(d). Otherwise, the contention would amount to a claim to have the benefit of counsel whenever a peace officer is in the performance of a statutory duty to require a suspect to give information or to submit to a physical test. This result does not flow from s. 2(d). The function confided to a peace officer under s. 223(1) does not bring him within s. 2(d). Moreover, the compelled provision of a breath sample by a person without concurrent protection against its use in evidence against him, does not offend against the self-crimina­tion guarantee in s. 2(d). That section gives no war-rant for applying the privilege against self-crimina­tion at large. The formulation of the privilege in s. 2(d) is a qualified one; the section goes no farther than to render inoperative any statutory or non statutory rule of federal law that would compel a person to criminate himself before a Court or like tribunal through the giving of evidence, without concurrently protecting him against its use against him. It follows that the compulsory taking of a breath sample and the introduction of the analysis into evidence, if properly provided for, and, alternatively, the pro-vision of a sanction for the unjustified refusal to give a breath sample cannot be effectively challenged under s. 2(d).

APPEAL from a judgment of the Court of Appeal for Ontario[1], affirming a judgment of

Fraser J.

R. E. Walker, for the appellant.

M. Manning, for the respondent

[Page 892].

THE CHIEF JUSTICE---This is an appeal by leave from a judgment of the Court of Appeal for Ontario[2] dismissing without recorded reasons an appeal from the decision of Fraser J. who an­swered affirmatively the following question stated by the Trial Judge:

Did I err in law in holding that section 223 of the Criminal Code and section 224(A) (3) of the Crimi­nal Code are rendered inoperative by virtue of a conflict with the Canadian Bill of Rights?

Having had the advantage of reading the reasons prepared by my brothers Ritchie and Laskin, I agree that the appeal should be disposed of as they propose. In view of the all embracing scope of the Canadian Bill of Rights and the relatively recent character of this important statute, I would prefer, while I appreciate the learned considera­tion given to the matter by my brother Laskin, to confine my opinion to the facts of this case, adopt the simpler approach taken by my brother Ritchie and rest my opinion on the reasons he gave which, in my respectful view, are sufficient for the deci­sion of this particular case.

The judgment of Abbott, Hall, Spence, Pigeon and Laskin JJ. was delivered by

LASKIN J.-The Canadian Bill of Rights, 1960 (Can.), c. 44 is invoked in this case to sterilize certain provisions of the Criminal Code, viz., ss. 223 and 224A(3), as enacted by s. 16 of the Criminal Law Amendment Act, 1968-69 (Can.), c. 38. That it may have a sterilizing effect upon federal legislation was decided by this Court in Regina v. Drybones[3]. Whether that must be the result here in no way depends upon what was decided in Regina v, Drybones.

The appellant was charged under s. 223(2) with failing or refusing, without reasonable excuse, to comply with a demand by a peace officer under s. 223(1) for a breath sample to enable an anal­ysis to be made to determine the proportion of

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alcohol in his blood. The provincial judge before whom the charge was tried concluded that the Crown had proved its case against the appellant beyond a reasonable doubt. Nonetheless, he dismissed the charge on the ground that s. 223 was inoperative because of the Canadian Bill of Rights. Thereafter, he acceded to a Crown request to state a case in which the following question was submitted for determination:

Did I err in law in holding that section 223 of the Criminal Code and section 224A(3) of the Criminal Code are rendered inoperative by virtue of a con­flict with the Canadian Bill of Rights?

Fraser J., after extensive reasons, answered this question in the affirmative, and an appeal from his judgment was dismissed without written reasons. Leave to appeal to this Court was granted by an order of October 6, 1971.

In view of the course of the argument, I deem it prudent to put at the forefront of these reasons two rather obvious propositions; first, the Cana­dian Bill of Rights did not freeze the federal statute book as of its effective date, which was August 10, 1960; and, second, federal law enacted after the date of the Canadian Bill of Rights as well as pre-existing federal law may be found to run foul of the prescriptions of the Canadian Bill of Rights.

Sections 223 and 224A(3) of the Criminal Code are connected with s. 222, as enacted at the same time, and I reproduce all these provi­sions preliminary to a consideration of the effect of the Canadian Bill of Rights upon ss. 223 and 224A(3). They read as follows :

222. Every one who, while his ability to drive a motor vehicle is impaired by alcohol or a drug, drives a motor vehicle or has the care or control of a motor vehicle, whether it is in motion or not, is guilty of an ... offence ...

223. (1) Where a peace officer on reasonable and probable grounds believes that a person is commit­ing, 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

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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 it 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.

224A. (3) In any proceedings under section 222, evidence that the accused, without reasonable excuse, failed or refused to comply with a demand made to him by a peace officer under subsection (1) of section 223 is admissible and the court may draw an inference therefrom adverse to the accused.

The contention of the appellant is that ss. 223 and 224A(3) are in collision with s. 1(a) (b) and s. 2(d) (e) (f) of the Canadian Bill of Rights. I reproduce these provisions, along with s. 5(1) (2) which was also brought into play in connection with the various submissions made by the parties. They are as follows:

1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,

(a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;

(b) the right of the individual to equality before the law and the protection of the law;

2. Every law of Canada shall, unless it is expressly declared by an Act of 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, abridgement or infringement of any of the

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rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be con­strued or applied so as to

(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;

(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;

(f) deprive a person charged with a criminal offence of the right to be presumed innocent until proved guilty according to law in a fair and pub­lic hearing by an independent and impartial tri­bunal, or of the right to reasonable bail without just cause;

5. (1) Nothing in Part I shall be construed to abrogate or abridge any human right or fundamental freedom not enumerated therein that may have ex­isted in Canada at the commencement of this Act.

(2) The expression "law of Canada" in Part I means an Act of the Parliament of Canada enacted before or after the coming into force of this Act, any order, rule or regulation thereunder, and any law in force in Canada or in any part of Canada at the commencement of this Act that is subject to be repealed, abolished or altered by the Parliament of Canada.

The reference by counsel for the appellant to s. 5(1) was not amplified by any indication of a tenable ground thereunder for questioning the operative effect of ss. 223 and 224A(3) of the Criminal Code. The same observation applies to the invocation of s. 2(e) and (f) of the Canadian Rill of Rights. The accused was heard on the charge against him and had full opportunity to make his defence. His objection to the charge, arising out of his refusal to give a sample of his breath, did not involve any allegation of a denial of a fair hearing but went rather to the substan­tive character of s. 223 and, in consequence, to

an issue of proof under s. 224A(3) of the Criminal Code. If it is compatible with the Cana­dian Bill of Rights to require a person, on pain of liability to punishment, to give a sample of his breath under s. 223(1), I see no violation of s. 2(f) of the Canadian Bill of Rights in making evidence of unjustified refusal admissible on an impaired driving charge under s. 222 of the Criminal Code. The presumption of innocence is not necessarily qualified by a statutory provision for the admission of rebuttable evidence, and certainly not by a statutory provision, like s. 224A(3), for the admission of evidence from which a Court may, not must, draw an inference adverse to the accused.

The operative effect of s. 224A(3) in the light of the Canadian Bill of Rights depends, therefore, on the operative effect of s. 223; and if this last-mentioned provision is in any way in conflict with the Canadian Bill of Rights, that conflict must be found, if at all, in s. 1(a) or in s. 1(b) or in s. 2(d) thereof.

In considering the reach of s. 1(a) and s. 1(b), and, indeed, of s. 1 as a whole, I would observe, first, that the section is given its controlling force over federal law by its referential incorporation into s. 2; and, second, that I do not read it as making the existence of any of the forms of pro­hibited discrimination a sine qua non of its opera­tion. Rather, the prohibited discrimination is an additional lever to which federal legislation must respond. Putting the matter another way, federal legislation which does not offend s. 1 in respect of any of the prohibited kinds of discrimination may nonetheless be offensive to s. 1 if it is viola­tive of what is specified in any of the clauses (a) to (f) of s. 1. It is, à fortiori, offensive if there is discrimination by reason of race so as to deny equality before the law. That is what this Court decided in Regina v. Drybones and I need say no more on this point.

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It is, therefore, not an answer to reliance by the appellant on s. 1(a) and s. 1(b) of the Canadian Bill of Rights that s. 223 does not discriminate against any person by reason of race, national origin, colour, religion or sex. The absence of such discrimination still leaves open the question whether s. 223 can be construed and applied without abrogating, abridging or infring­ing the rights of the individual listed in s. 1(a) and s. 1 (b). What the appellant pointed to in s. 1(a) was the guarantee of "due process of law", and his contention under s. 1(b) was that s. 223 denied him "the protection of the law". I shall deal with these submissions in turn.

The phrase "due process of law" has its con-text in the words of s. 1(a) that precede it. In the present case, the connection stressed was with "the right of the individual to ... security of the person". It is obvious that to read "due process of law" as meaning simply that there must be some legal authority to qualify or impair security of the person would be to see it as declaratory only. On this view, it should not matter whether the legal authority is found in enacted law or in unenacted or decisional law. Counsel for the appellant does not, of course, stop here. He con-tended for a qualitative test of legislation to meet the standard of due process of law and urged that the Court find that s. 223 fell below it. This was, however, a bare submission, not reinforced by any proposed yardstick.

What it amounted to was an invitation to this Court to monitor the substantive content of legis­lation by reference to s. 1(a). The invitation is to take the phrase "except by due process of law" beyond its antecedents in English legal history, and to view it in terms that have had sanc­tion in the United States in the consideration there of those parts of the Fifth and Fourteenth Amendments to the American Constitution that forbid the federal and state authorities respectively to deprive any person of life, liberty or property without due process of law.

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The English antecedents, specifically 28 Edw. III, c. 3 of 1355 ("no man of what state or con­dition he be, shall be put out of his lands or tene­ments nor taken, nor disinherited, nor put to death without he be brought to answer by due process of law") as backed up by the earlier Magna Carta, c. 29, reissue of 1225 (famous for the phrase "per legem terrae"), point to pro­cedural considerations, although it has been con-tended that they go farther: see McIlwain: Due Process of Law in Magna Carta (1914), 14 Col. L. Rev, 27. It is evident from s. 2 of the Canadian Bill of Rights that its specification of particular procedural protections is without limitation of any others that may have a source in s. 1.

In so far as s. 223, and especially s. 223(1), may be regarded as a procedural aid to the enforcement of the substantive offence created by s. 222, I do not find it obnoxious to s. 1(a) of the Canadian Bill of Rights. (am unable to ap­preciate what more can be rea into s. 1(a) from a procedural standpoint than is already compre­hended by s. 2(e) ("a fair hearing in accordance with the principles of fundamental justice") and by s. 2(f) ("a fair and public hearing by an in-dependent and impartial tribunal") I need not consider here whether the express concern of s. 2(f) with criminal charges indicates that s. 2(e) must refer to non-criminal proceedings. I would not read these two provisions as pointing to different standards of procedural fairness in their respective applications (if that be the case) to non-criminal and criminal proceedings, save as those standards spring from the nature of the proceeding.

There is no occasion here to look at s. 223 in terms of the revulsion and shock of conscience which influenced the Supreme Court of the United States in Rochin v. California[4] to hold that the due process clause of the Fourteenth Amendment was there violated. It was a case of forcing upon

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a suspect the use of an emetic to obtain morphine capsules which he had swallowed. In my opinion, the policy reflected in s. 222 could properly, at the instance of Parliament, be supported by the prescriptions of s. 223 without there being any denial to an accused of a fair hearing, that is, of due or just process.

Counsel for the respondent conceded in argu­ment that s. 1(a) could have application to pre-trial matters affecting a person who is or is about to be charged with an offence. He submitted, how-ever, that in the present case self-crimination was the only possible ground of objection under s. 1(a) and, since it was covered expressly in s. 2(d), there was no reason to consider it separately and independently under s. 1(a). The force of this submission depends on a view of the scope of s. 2(d) on which counsel for the appellant and counsel for the Crown are in disagreement; and, accordingly, I defer consideration of the scope of the protection against self-crimination, so far as it may be comprehended under s. 1(a) as well as under s. 2(d), until I give my reasons on the appellant's submissions with respect to s. 2(d).

In so far as s. 223 may be regarded, in the light of s. 223(2), as having specific substantive effect in itself, I am likewise of the opinion that s. 1(a) of the Canadian Bill of Rights does not make it inoperative. Assuming that "except by due process of law" provides a means of control-ling substantive federal legislation-a point that did not directly arise in Regina v. Drybones-compelling reasons ought to be advanced to justify the Court in this case to employ a statutory (as contrasted with a constitutional) jurisdiction to deny operative effect to a substantive measure duly enacted by a Parliament constitutionally com­petent to do so, and exercising its powers in ac­cordance with the tenets of responsible government, which underlie the discharge of legislative authority under the British North America Act. Those reasons must relate to objective and man­ageable standards by which a Court should be

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guided if scope is to be found in s. 1(a) due process to silence otherwise competent federal legislation Neither reasons nor underlying stand­ards were offered here. For myself, I am not pre-pared in this case to surmise what they might be.

American judicial experience with the Fifth and Fourteenth Amendments, in respect of substantive due process, does not provide any ground upon which this Court might stand for the purpose of resorting to due process in s. 1(a) as a means of controlling such federal laws as s. 223 of the Criminal Code. If there is any analogy at all to be drawn between the Canadian Bill of Rights and the American Constitution, it is to be found with respect to the first eight amendments to that Con­stitution, which inhibit federal action, and not with respect to the Fourteenth, which is referable to the states.

A recurring issue in American judicial exper­ience during this century has been the extent to which the Fourteenth Amendment (consisting in its first section of a citizens' privileges and im­munities clause and an equal protection clause as well as of a due process clause) protects against state action which involves invasions of what is specified in the first eight amendments. There is no such issue of interaction involved under the Canadian Bill of Rights. The late Justice Frank­furter made the point in his concurring reasons in Adamson v. California[5] that due process in the Fifth Amendment does not subsume what is other-wise explicitly guaranteed against federal invasion in the first eight amendments; and this is apropos in Canada without any need to consider his further assertion (vigorously rejected by the late Justice Black in his dissent in the same case) that this conclusion should be accepted with respect to the due process clause of the Fourteenth Amendment. As in the first eight amendments (which may be compendiously referred to as the American

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Bill of Rights) so in the Canadian Bill of Rights, the due process clause does not stand alone, but is part of a scheme which includes among the protected "human rights and funda­mental fredoms" (1) the political liberties, (2) the right to counsel, (3) the right to reason-able bail, (4) protection against self-crimination and (5) protection against cruel and unusual punishment. In addition to these common features, the American Bill of Rights is express on pro­tection against unreasonable searches and seizures, double jeopardy, and the taking of private prop­erty for public use without just compensation.

Each of these last-mentioned provisions has been recognized as within Fourteenth Amendment protection (see, respectively, Mapp v. Ohio[6], Benton v. Maryland[7] and Chicago, Burlington etc. Ry. v. Chicago [8]) and so too has the federal guaran­tee of right to counsel in criminal cases (see Gideon v. Wainwright[9]), although not without overruling an earlier decision (see Betts v. Brady[10]). An overruling was also involved before the protection against self-crimination was in­cluded in the Fourteenth Amendment guarantees (see Twining v. New Jersey[11] and Malloy v. Hogan[12]). I make reference to these cases to show that in the main there has been a jealous judicial concern for fair criminal procedure in the State Courts, and the federal guarantees in this area have provided an acceptable measure. There is no similar need to pour content into the Cana­dian due process clause when it is surrounded by the specific guarantees in the Bill of Rights that 1 have already mentioned.

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The immediate issue is, however, the wider one of the extent to which the Fifth Amendment due process clause has been used as a brake on federal law-making, apart from matters of pro­cedural regularity or procedural fairness. Here too there has been a checkered history, involving such questions as unreasonable discrimination, the degree of immunity of private business from public regulation, and the limits of permissible interference with freedom of contract. It appears that so-called economic due process has been abandoned (see.. West Coast Hotel Co. v. Parrish[13]) in the realization that a Court enters the bog of legislative policy-making in assuming to enshrine any particular theory, as for example, untrammelled liberty of contract, which has not been plainly expressed in the Constitution.

This commends itself to me with respect to due process in the Canadian Bill of Rights. Parlia­ment has spoken clearly on certain types of discrimination; it has used familiar, albeit general, words in its legislative guarantees of freedom of religion, speech, assembly, association and the press; and it has been even more specific in what it has enumerated in s.2, although even here there are difficulties of interpretation. The very large words of s. 1(a), tempered by a phrase ("except by due process of law") whose original English meaning has been overlaid by American constitutional imperatives, signal extreme caution to me when asked to apply them in negation of substantive legislation validly enacted by a Par­liament in which the major role is played by elected representatives of the people. Certainly, in the present case, a holding that the enactment of s. 223 has infringed the appellant's right to the security of his person without due process of law must be grounded on more than a substitution of a personal judgment for that of Parliament. There is nothing in the record, by way of evidence or admissible extrinsic material, upon which such a holding could be supported. I am, moreover, of the opinion that it is within the scope of judicial notice to recognize that Parliament has acted in

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a matter that is of great social concern, that is the human and economic cost of highway acci­dents arising from drunk driving, in enacting s. 223 and related provisions of the Criminal Code. Even where this Court is asked to pass on the con­stitutional validity of legislation, it knows that it must resist making the wisdom of impugned legis­lation the test of its constitutionality. A fortiori is this so where it is measuring legislation by a statutory standard, the result of which may make federal enactments inoperative.

The submission under s. 1(b) that s. 223 was a denial of the "protection of the law" amounted at bottom to a contention that the pre-s: -223 state of the law, which was more favourable to a potential accused person, could not be changed to his disadvantage without offending s. 1(b). I find no merit in this position, based as it is on the "frozen statute book" theory. It was not argued that the appellant was denied "equality be-fore the law" under s. 1(b), and hence it is unnecessary to consider whether s. 1(b) must be read as wholly conjunctive so as to make the declaration of the protection of the law a reinforcement of the requirement of equality before the law. This Court has pointed out in Regina v. Drybones[14] that "law" in s. 1(b) refers to federal law, as defined in s. 5(2) of the Canadian Bill of Rights.

This brings me to the final submission of the appellant, that under s. 2(d), which was the one argued at greatest length.

Four points are taken by counsel for the ap­pellant in reliance upon s. 2(d). First, he sub­mits that a peace officer acting under s. 223(1) is covered by the phrase "other authority" in s. 2(d). Second, it is his contention that the unqualified words "to give evidence" in s. 2(d) (that is, unqualified by any express limitation to testimony at a hearing) are broad enough and (having regard to the purpose of the Bill of Rights

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as expressed in its preamble and in s. 1) should be construed to cover the results of com­pelled physical tests as well as compelled oral utterance. Third, it is urged that s. 2(d) extends to persons who may be but are not yet parties or witnesses, and the contrast is made with s. 2(g) which does speak, inter alia, of a party or witness before a court, commission, board or other tri­bunal in connection with the provision of an interpreter. Fourth, the allegation is that pre-trial compulsion at the instance of a peace officer to submit to a test that may yield incriminating re­sults is a denial of protection against sef-crimi­nation within s. 2(d).

The position of counsel for the Crown on these four points was that s. 2(d) did not admit of the segmented consideration which they postulated; and that, read as a whole and against other provi­sions of s. 2 such as s. 2(g), the proper conclu­sion was that s. 2(d) envisaged compelled self-incriminating testimony at a hearing. Section 223, quite clearly, is not of that order.

If the opening words of s. 2(d) ("authorize a court, tribunal, commission, board or other auth­ority"), taken in the context of the whole of s. 2(d), invite the application of the ejusdem generis rule to the words "other authority" this affords, without more, an answer to the appel­lant's submissions. It is said, however, by the appellant that the genus is exhausted by the words "court, tribunal, commission and board", and hence "other authority" may well refer to a peace officer. Reference is made to the rules governing confessions, which are predicated upon statements made to "persons in authority", among whom, of course, are peace officers.

I am of the opinion that the usual approach in statutory interpretation of reading a questioned provision ,as a whole is particularly apposite in the present case. Looking, at the terms of s. 2(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,

some assistance in arriving at its meaning is pro­vided by the juxtaposition of the words "if he is denied counsel" and "protection against self-cri­mination". Not only must the words "other authority" not be taken in isolation from the connecting words "compel a person to give evid­ence", but they must also be related to the im­mediately following phrases, of which the first is "if he is denied counsel". The appellant's sub-mission on the words "other authority" would, if accepted, mean that (1) the phrase "compel a person to give evidence" must be read as includ­ing in its meaning "the supply of proof of facts to be adduced at trial"; and (2) the peace officer who proceeds to act under s. 223 must, at least if the affected person so requests, give him an opportunity to obtain counsel. This would not be a case of entitlement to counsel by a person who has been arrested, for which provision is made separately under s. 2(c) (ii) of the Canadian Bill of Rights, but would amount to a claim to have the benefit of counsel whenever a peace officer is in the performance of a statutory duty to re-quire a suspect to give information or to submit to a physical test. I cannot accept this result as flowing from s. 2(d) of the Canadian Bill of Rights.

However, even taking the words "other auth­ority" in isolation, they have subject matter in such legislation as the Immigration Act, R.S.C. 1970, c. I-2 and the Combines Investigation Act, R.S.C. 1970, c. C-23. The first-mentioned Act provides that immigration officers may administer oaths and take evidence under oath in connection with the examination of persons seeking admission to Canada. It also provides for inquiries by a Special Inquiry Officer, likewise authorized to administer oaths and take sworn evidence, which may lead to an order of deportation. Even if the Special Inquiry Officer could be considered a "tri­bunal" or a "board" within s. 2(d), it is my opinion that the immigration officer in his conduct

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of an examination fits more appropriately in the category of "other authority" than in any of the categories of "court, tribunal, commission or board".

The Combines Investigation Act provides for the appointment of a Director of Investigation and Research who is required in certain circum­stances to hold inquiries into alleged offences under Part V of the Act; and he may, in that connection, obtain the authority of a member of the Restrictive Trade Practices Commission to examine persons under oath or to have production of books and records or to require written returns as to the business and business dealings of per-sons or corporations involved in the inquiry. Al-though there is some similarity in the functions of the Director and that of a peace officer in the in­vestigation of crime, the similarity ceases where the Director is engaged in an inquiry for which counsel has been appointed to assist therein and at which evidence is taken under oath. The Director, in such a case, may properly be re­garded as falling within the words "other auth­ority", as being within the genus signified by the preceding words "court, tribunal, commission, board" under s. 2(d) of the Canadian Bill of Rights.

The immigration officer under the Immigration Act and the Director under the Combines Investi­gation Act in their character as officers presiding over an examination and an inquiry are carrying out duties of a different order than what a peace officer is empowered to do under s. 223(1) of the Criminal Code. I conclude therefore that the function confided to a peace officer under s. 223 (l) does not bring him within s. 2(d) of the Canadian Bill of Rights.

Apart entirely from the point just discussed, I am of opinion that the compelled provision of a breath sample by a person, without concurrent protection against its use in evidence against him, does not offend against the self-crimination guarantee as it is expressed in s. 2(d). Although I am in the main in agreement with what was said

[Page 907]

by Freedman C. J. M. in Regina v. McKay[15], a case involving the same considerations as the present one, he did not address himself directly to the self-crimination question, as did Fraser J. in the present case, but dealt only with the mean­ing of the words "other authority" and "to give evidence".

I approach the issue of self-crimination by ob­serving that statutory compellability to give a breath sample does not per se raise any question of illegally obtained evidence and, a fortiori, does not raise any question of illegally obtained state­ments or admissions. In this respect, therefore, s. 223 removes one of the problems that was can­vassed during the course of the proceedings at trial and on appeal in the case of Attorney-Gen­eral of Quebec v. Begin[16].

Although that was a case where the accused consented to a blood test, it was urged unsuccess­fuly in this Court that the failure to forewarn him of the likely use of the results of the test pre­cluded the Crown from adducing evidence thereof. This Court concluded that the rules respecting the admissibility of statements by an accused did not come into play upon the taking of a blood sample. The governing judgment, delivered by Fauteux J., as he then was, referred to Wigmore's rationale of those rules, which test admissibility by voluntariness, as based on the exclusion of self-criminating statements that may be false: Evidence (3rd ed. 1940), vol. 3, p. 250. That rationale had no application to the results of a physical test. The judgment of this Court in Piché v. The Queen[17], although expanding the protection of the confession rules to include any statements of an accused to a person in authority, has other-wise no bearing on the matter under consideration.

In the light of Begin and of the subsequently enacted Canadian Bill of Rights the question that remains to be answered is whether the statutorily

[Page 908]

compelled giving of a breath sample, although not raising any issue of illegally obtained admis­sions of an accused, is nonetheless a form of self-crimination that is within the expression thereof in s. 2(d). Pertinent to this question is the fact that s. 2(d) in referring to "a person" certainly covers both a witness other than an accused and an accused. Counsel for the appellant would have it that "person" also covers a suspect whom a peace officer confronts under s. 223(1); and he proceeds from this base to contend that the sanc­tion-supported demand for a breath sample involves compelled self-crimination referable to a subsequent charge and trial for impaired driving.

In view of what has gone before in these reasons, this contention cannot succeed unless it be held that (1) s. 2(d), in respect of self-crimina­tion, extends to protect an accused against the introduction of evidence adduced through the mouth of another but which was compelled from the accused, and (2) the protection against self-crimination includes protection against the use of evidence of the results of compelled incriminating physical tests; or (having regard to the terms of s. 224A(3) of the Criminal Code) prohibits the drawing of an adverse inference (which would indirectly involve compulsory self-crimination) from the refusal to submit to physical tests. This submission dissolves, of course, the formal distinc­tion between compulsory self-crimination and the use of the answers or the analysis against a person in subsequent proceedings.

An accused person remains under the law of Canada a non-compellable witness for the prose­cution. The history of this matter in this country is recounted by Cartwright J., as he then was, in Batary v. Attorney-General of Saskatchewan[18]. What lies behind the first branch of the contention above-noted is the proposition that what cannot be compelled from an accused directly at his trial should not be compellable from him at a pre-trial or pre-arrest stage. Prior to the enactment of the Canadian Bill of Rights it was not thought to be incompatible with the preservation of an accused's immunity for evidence to be given by another

[Page 909]

about an accused's physical appearance or his clothing (to take two examples), with a resulting incriminating effect. I speak here of matters of observation only and leave out of account others, mentioned by Fauteux J. in Begin18 which might be compelled but without statutory authorization to support the compulsion. Again, an accused could not before the enactment of the Canadian Bill of Rights nor can he since its enactment claim any immunity or privilege against the admissibility of his voluntary disclosures where they are re-levant to a charge against him. It is submitted, however, that where compelled cooperation of a person in his self-crimination is provided by sta­tute, s. 2(d) of the Canadian Bill of Rights should be construed to preclude evidence of the results of that cooperation, or of the refusal to cooperate, from being adduced against him in subsequent proceedings.

Apart from s, 2(d), and apart from questions of constitutionality such as arose in the Batary case, supra, statutes compelling a person to make disclosures or to submit to tests that may be incriminating raise questions about the scope of the privilege against self-crimination only in the con-text of the admissibility of the disclosures or of the results of the tests in subsequent proceedings. This issue has recently been canvassed by Heydon, Statutory Restrictions on the Privilege against Self-Incrimination, (1971) 87 Law Q. Rev. 214, and reference may also be made to the judgment of this Court in Walker v. The King[19]. What is involved is the clarity of the compelling statute and whether, if the statute is ambiguous or silent on the question of admissibility, the privilege against self-crimination can be invoked to deny admissibility. In the present case, it is conceded that unless the appellant is aided by s. 2(d) of the Canadian Bill of Rights, there is no ground for avoiding the plain effect of ss. 223 and 224A(3) of the Criminal Code.

[Page 910]

Section 2(d) gives no warrant for applying the privilege against self-crimination at large; rather it has a specific focus. The Supreme Court of the United States has had to wrestle with a con­stitutional statement of the privilege which is cast in wider terms; the relevant portion of the Fifth Amendment provides that no person "shall be com­pelled in any criminal case to be a witness against himself". Although the word "witness" could sup-port a narrow construction, there is no such limit­ing context in the Fifth Amendment as there is in s. 2(d), which relates the protection against self-crimination to the giving of evidence, at the be-hest of a court or like tribunal, by the person en-titled to the protection The Fifth Amendment formulation is not so confined as a matter of words; and it has been held wide enough to sup-port the assertion of the privilege in "custodial interrogation" (the phrase is from Miranda v. Arizona[20]), with consequent exclusion of state­ments obtained as a result thereof unless there are specified procedural safeguards, as well as be-fore a court or like tribunal.

A week after its decision in Miranda, the Supreme Court of the United States concluded that the privilege did not apply to the "custodial bleeding" of an accused. In Schmerber v. Cali­fornia[21], it held in a majority judgment that the taking of a blood sample from an accused at the direction of a police officer but over the accused's objection, when he was under arrest and in hos­pital for treatment for automobile injuries, and the admission of the analysis as evidence against him on a trial for driving while intoxicated, did not violate his Fifth Amendment privilege against being "compelled in any criminal case to be a witness against himself", a privilege which, under Malloy v. Hogan, already mentioned, was secured against State invasion by the Fourteenth Amendment. The Court majority, speaking through Brennan J., put the matter as follows (at p. 761) :

We . . must now decide whether the withdrawal of the blood and admission in evidence of the analysis

[Page 911]

involved in this case violated the petitioner's privi­lege. We hold that the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature and that the withdrawal of blood and use of the analysis in ques­tion in this case did not involve compulsion to these ends.

In short, he was of the view that "the privilege reaches an accused's communications, whatever form they might take, and the compulsion of re­sponses which are also communications, for example, compliance with a subpoena to produce one's papers" (at pp. 763-4). Brennan J. was guarded in accepting literally the distinction be­tween the compelling of communications or testi­mony and compulsion which makes a suspect or an accused the source of real or physical evi­dence, pointing out that some physical tests, as, for example, by lie detector apparatus, may be directed to eliciting responses which are essen­tially testimonial. That, however, was not the case before him.

The minority view in Schmerber is typified by the reasons of the late Justice Black who said that "to reach the conclusion that compelling a person to give his blood to help the State convict him is not equivalent to compelling him to be a witness against himself strikes me as quite an extraordi­nary feat" (at p. 773). Justice Black noted that the majority refused to adopt Wigmore's narrow view of the privilege against self-crimination as merely barring the use of forced incriminating statements coining from a person's own lips; but, this being so, he felt unable to see a distinction between recognizing the privilege in respect of an accused's papers and not recognizing it in the communicative effect of an analysis of his blood.

The Wigmore view was referred to by this Court in Begin and was again mentioned favour-ably in Reference re Validity of Section 92(4) of The Vehicles Act, 1957 (Sask.)[22], (see, for ex-ample, Rand J. at p. 618, "I take the rule of

[Page 912]

immunity from incriminating evidence to be con-fined to that which bears a testimonial charac­ter"). On the other hand, the Supreme Court of the United States appeared to be unanimous in Schmerber that at least compelled utterances and communications of a suspect or of an accused in custody are privileged under the Fifth Amendment, regardless of whether they are sought to be introduced into evidence directly from the mouth of the person claiming the privilege or indirectly through the mouth of another. There may be logic in the view that utterances and communications that cannot be compelled from an accused in the court room should not be compellable from him in out-of-court interrogation. But whatever be the logic as to the scope of the privilege against self-crimination, either in the United States or else-where, the governing text in this case is s. 2(d). The formulation of the privilege in s. 2(d) is a qualified one; and apart from the question whether it would, if applicable here, cover the compulsory taking of breath samples as well as compelled utterances and communications, I can-not read s. 2(d) as going any farther tan to render inoperative any statutory or non-statutory rule of federal law that would compel a person to criminate himself before a court or like tribunal through the giving of evidence, without concur­rently protecting him against its use against him] I leave for future consideration the scope of the term "evidence" since this is not a matter that arises in the present case.

This view of s. 2(d) means, in the case of an accused person, that he cannot be made a compel­lable witness unless the Canadian Bill of Rights is expressly by-passed for that purpose as pro­vided in the opening words of s. 2 thereof. The English version of s. 2(d) is supported in this construction by the French version which speaks of "à contraindre une personne à témoigner si on lui refuse ... la protection contre son propre té­moignage ...." Indeed, it follows from my view of s. 2(d) that the compulsory taking of a breath sample and the introduction of the analysis into evidence (if properly provided for), and, alternately,

[Page 913]

the provision of a sanction for the unjusti­fied refusal to, give a breath sample cannot be effectively challenged under that provision of the Canadian Bill of Rights.

Accordingly, the appellant's submissions under s. 2(d) fail. It remains to consider whether there is a residuary scope of the privilege, beyond what is recognized under s. 2(d), that falls within s. 1(a) and accordingly makes s. 223 inoperative It would be specious to contend that the likeli­hood of self-crimination constitutes a reasonable excuse within s. 223(2) and that the subsection is otherwise unaffected. To allow this contention would be to debilitate the provision as fully as if the privilege against self-crimination had been raised against it as a whole. The issue then is not whether self-crimination or the likelihood thereof goes to the saving clause of s. 223(2), but whether the entire s. 223 is without effect on that ground under the warrant of the due process clause of s. 1(a).

I do not think that the Canadian Bill of Rights can be construed as having taken a piecemeal ap­proach to the privilege against self-crimination. The history of the privilege as a Canadian deriv­ative from the English common law is accurately reflected in the way it is expressed in s. 2(d): see 8 Wigmore on Evidence (McNaughton revi­sion, 1961), # 2250, pp. 284 if. The scope or policy of the privilege may be another thing, as it has proved to be under its constitutional formu­lation in the United States. Unless s. 2(d), where the privilege is expressed, yields room to take policy beyond history-and I have already dealt with s. 2(d) in this respect-I do not think that s. 1(a), where there is no reference to the privilege and whose words provide no historical warrant for embracing it, can be taken to include in its protection an extension of the privilege beyond what is found in s. 2(d).

No doubt, the generous words of s. 1(a) may bring to mind matters other than protection against self-crimination for which protection may be sought thereunder, failing their specific mention

[Page 914]

 elsewhere in the Canadian Bill of Rights. I do not propose to speculate on them; their day of decision may come, but in this case I am con­cerned with a submission that although self-cri­mination is expressly dealt with in one provision of the statute, this Court should find another expression thereof in another provision of the same statute where it is not expressly mentioned.

There is a distinction to be drawn in respect of the privilege which is commanded by the exper­ience with it in this country and in the United States. The point in the criminal process at which the privilege can be asserted is one thing; what the privilege embraces at that point is something else. It is my conclusion that the point of asser­tion has been fixed in s. 2(d) and I do not think I can invoke s. 1(a) to shift it to a stage which would make it effective against s. 223.

I would dismiss the appeal.

The judgment of Martland and Judson JJ. was delivered by

MARTLAND J.-I would dismiss this appeal. I agree with the reasons given by my brother Laskin. I also agree with the reasons of my brother Ritchie, but, in so doing, I do not adopt, as final, any specific definition of the phrase "due process of law", as used in s. 1(a) of the Canadian Bill of Rights.

RITCHIE J.-I have had the advantage of read­ing the reasons for judgment prepared for delivery by my brother Laskin and I agree that the appeal should be disposed of in the manner proposed by him.

In the present case the appellant was charged under s. 223 of the Criminal Code with failing or refusing without lawful excuse to comply with a demand by a peace officer under s. 223(1) for a breath sample to enable an analysis to be made in order to determine the proportion, if any, of alcohol in his blood. The charge was dismissed at trial on the ground that s. 223 of the Criminal Code was inoperative because of the Canadian Bill of Rights. The learned judge at first instance

[Page 915]

was requested to submit and did submit the following question for determination by way of stated case:

Did I err in law in holding that section 223 of the Criminal Code and section 224A(3) of the Criminal Code are rendered inoperative by virtue of a con­flict with the Canadian Bill of Rights?

The relevant sections of the Criminal Code and the Canadian Bill of Rights (hereinafter re­ferred to as "the Bill of Rights") are set out in full in the reasons for judgment of my brother Laskin.

The question posed by the stated case was con­sidered at length by Fraser J., who gave an affir­mative answer which was affirmed without re-corded reasons by the Court of Appeal for Ontario.[23]

Leave to appeal to this Court having been granted, the main ground urged by the appellant was that the provisions of ss. 223 and 224A(3) could not be applied without abridging the ap­pellant's right to "protection against self crimina­tion" and that such provisions were therefore inoperative as being in conflict with s. 2(d) of the Bill of Rights.

It was also argued that since ss. 223 and 224A(3) had the effect of enabling a peace offi­cer to compel a citizen to submit to a breath test which might yield incriminating evidence against him at his trial, these sections offend against the right of the individual not to be deprived of the security of his person "without due process of law" which is recognized by s. 1(a) of the Bill of Rights.

In concluding that the impugned sections of the Criminal Code did not offend against the "due process" provisions of s. 1(a) of the Bill of Rights, my brother Laskin has made an extensive and instructive review of the meaning of "due process of law", in the course of which he makes reference to the origins of the phrase and its ap­plication in decisions of the Supreme Court of the United States of America. While I agree that ss. 223 and 224A

[Page 916]

do not offend against s. 1(a) of the Bill of Rights, I prefer to base this conclusion on my understanding that the meaning to be given to the language employed in the Bills of Rights is the meaning which it bore in Canada at the time when the Bill was enacted, and it follows that, in my opinion, the phrase "due process of law" as used in s. 1(a) is to be construed as meaning "according to the legal processes recognized by Parliament and the courts in Canada".

I think, as I have said, that the real issue in this case is whether or not the provisions of ss. 223 and 224A(3) in so far as they provide that an individual may be compelled to give a sample of his breath which can later be used against him at his trial, amount to enforced "self crimina­tion" and thus abridge the individual's right to "protection against self crimination" which is recognized by s. 2(d) of the Bill of Rights.

In accordance with the view which I have al-ready expressed as to the meaning which I think should be attached to the language of the Bill of Rights, I would prefer to base my opinion on the meaning of the words "protection against self crimination" as they occur in s. 2(d) on the cases decided in this Court and more particularly on the cases of The Attorney General for Quebec v. Begin[24], and Validity of Section 92(4) of The Vehicles Act, 1957 (Sask)[25].

In the course of his reasons for judgment in the latter case, the present Chief Justice, relying on the case of Begin, had this to say:

Indeed the confession rule requiring a warning, ex­clusively concerns self incriminating statements of the accused, and aims at the exclusion of those which are untrue. As its subject matter or purpose, the confession rule does not embrace the incrimi­nating conditions of the body, features, fingerprints, clothing or behaviour of the accused, that persons, other than himself, observe or detect and ultimately report as witnesses in judicial proceedings.

I think, therefore, that the words "protection against self crimination" as they occur in s. 2(d) of the Bill of Rights are to be taken as meaning

[Page 917]

protection against "self incriminating statements" and not as embracing "incriminating conditions of the body" such as the alcoholic content of the breath or blood.

I do not find it necessary to go further afield in order to interpret this phrase as it occurs in the Canadian Bill of Rights.

As I have said, I would dispose of this appeal in the manner proposed by my brother Laskin.

Appeal dismissed.

Solicitors for the appelant: Charron & Walker, Toronto.

Solicitor for the respondent: The Attorney General of Ontario, Toronto.

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