Chromiak v. The Queen, [1980] 1 SCR 471

Supreme Court of Canada

Chromiak v. The Queen, [1980] 1 S.C.R. 471

Date: 1979-11-20

Kenneth Robert Chromiak Appellant;

and

Her Majesty The Queen Respondent.

1979: October 16; 1979: November 20.

Present: Martland, Ritchie, Pigeon, Beetz, Estey, McIntyre and Chouinard JJ.

ON APPEAL FROM THE SUPREME COURT OF ALBERTA, APPELLATE DIVISION

Criminal law—Police officer suspecting accused might be impaired driver—Demand for breath sample for road-side testing—Refusal to comply without presence of lawyer—Accused at no time “detained” within meaning of Canadian Bill of Rights, 1960 (Can.), c. 44, s. 2(c)—No reasonable excuse for failure to comply—Criminal Code, R.S.C. 1970, c. C-34, s. 234.1(2).

The appellant was charged that he failed to comply with a demand made to him by a peace officer under s. 234.1 (2) of the Criminal Code and was convicted by a Provincial Court judge. The appellant then appealed his conviction to the District Court of Alberta and his appeal was allowed and the conviction quashed. On appeal by the Crown, the Alberta Court of Appeal allowed the appeal and restored the conviction and sentence of the Court of first instance. The appellant then appealed from the judgment of the Court of Appeal to this Court.

The accused had been driving his car in an erratic manner and was stopped by a peace officer. After asking the accused to perform some sobriety tests, and suspecting that he might be an impaired driver, the officer read him the road-side test demand to provide a breath sample into an approved screening device. The appellant appeared to understand the demand, but was continually asking questions. The appellant then refused to provide a sample of his breath, stating that he wanted his lawyer present on the street before he did any tests. The peace officer thereafter wrote out an appearance notice for impaired driving and refusing to provide a breath sample into the road-side testing device, and the appellant was permitted to leave with a companion who drove his motor vehicle.

Held: The appeal should be dismissed.

The submission that when the appellant brought his vehicle to a stop in compliance with a signal from the

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peace officer and during the time when the peace officer, with the appellant’s ready co‑operation, subjected him to certain sobriety tests and subsequently read him the “road‑side tester demand to provide a breath sample”, the appellant was being “detained” within the meaning of s. 2(c) of the Canadian Bill of Rights, and that this detention afforded him “reasonable excuse” for refusing to comply with the demand to provide a breath sample within the meaning of s. 234.1(1) of the Criminal Code could not be accepted.

The words “detain” and “detention” as they are used in s. 2(c) of the Bill of Rights connote some form of compulsory restraint. The language of s. 2(c)(iii) which guarantees to a person “the remedy of habeas corpus for the determination of the validity of his detention and for his release if the detention is not lawful” clearly contemplates that any person “detained” within the meaning of the section is one who has been detained by due process of law. This construction is supported by reference to ss. 28(2)(b), 30, 136(a), 248 and 250 of the Criminal Code where the words “to detain” are consistently used in association with actual physical restraint. In the present case, the appellant, after he had co-operated in furnishing the preliminary sobriety tests, was allowed to go away and he was at no time detained.

The appellant was not a person who had while “arrested or detained” been deprived of the right to “retain counsel without delay”, and there was no reasonable excuse for his failure to comply with the demand made to him by the peace officer.

Brownridge v. The Queen, [1972] S.C.R. 926; Hogan v. The Queen, [1975] 2 S.C.R. 574, distinguished; R. v. Ballegeer, [1969] 3 C.C.C. 353; R. v. MacDonald (1974), 22 C.C.C. (2d) 350, referred to.

APPEAL from a judgment of the Supreme Court of Alberta, Appellate Division[1], allowing an appeal from a judgment of McFayden D.C.J. and restoring the appellant’s conviction on a charge of failing to comply with a demand that he provide a breath sample for analysis in a road-side screening device contrary to s. 234.1(2) of the Criminal Code. Appeal dismissed.

W.J. Shymko, for the appellant.

W. Henkel, Q.C., for the respondent.

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The judgment of the Court was delivered by

RITCHIE J.—This is an appeal from a judgment of the Appellate Division of the Supreme Court of Alberta allowing an appeal from a judgment of McFayden J., in the District Court, and restoring the conviction entered against the appellant by His Honour Judge Forbes in the Provincial Judges Court on a charge that the appellant

“… on or about the 17th day of September 1977 at the City of Edmonton in the Province of Alberta, without reasonable excuse, did unlawfully fail to comply with a demand made to him by a peace officer under s. 234.1(2) of the Criminal Code”

At the trial before Judge Forbes it was admitted on behalf of the appellant that the facts read into the record by the Crown constituted the whole of the evidence in this case. In view of the fact that each case involving the construction and effect to be given to s. 234.1(2) and s. 235 of the Criminal Code is dependent on the particular facts giving rise to the alleged offence, I think it desirable that the admitted evidence should be reproduced in full. The following statement of facts was read into the record in accordance with the agreement of counsel:

Your Honour, at approximately 3:55 a.m., Sergeant Tidridge noted a 1977 Volaré, red over black, travel south on 50th Street; and as it turned east onto 114th Avenue, it nearly ran over the southeast curb. The vehicle straightened out; and then Sergeant Tidridge paid particular attention to it as it travelled east on 114th Avenue. It was seen that the vehicle had a distinct weave inasmuch as it moved from side to side a complete vehicle width. It took approximately a 100 feet to accomplish this weave; and as it did so, it moved completely to the left of the unmarked center line and then to the right, almost striking cars parked at the south curb, 114th Avenue. Sergeant Tidridge applied the interior red light of the police vehicle, and noted that, although the vehicle reacted almost immediately, it took a long time to finally come to a halt, spending some time edging along the

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curb before finally coming to this stop.

Sergeant Tidridge approached the driver’s door and the accused stepped from the vehicle, staggering slightly as he did so. On closer checking, Sergeant Tidridge noted his breath smelled strongly of an intoxicating liquor; beer, as a matter of fact. He was asked whether he was drinking: He denied it; produced his documents plus one credit card; did this without too much difficulty. He was not exactly sure of where he was, but he was not lost. He was driving a friend home.

Sergeant Tidridge asked the accused to perform some sobriety tests, the first one being the balance test; and he had to sort of jog to keep his balance. Walking was fair: Asked him to walk ten paces; some slight sway from normal. Turning wasn’t done. Finger to nose touch, finger to nose test: he did quite well. The tests were carried out on a dry, paved road surface. His attitude was co-operative. Speech was noted to be slurred.

Sergeant Tidridge felt that the accused might be an impaired driver and he was read the road‑side tester demand to provide a breath sample into a road-side approved testing device. He appeared to understand but was continually asking questions. Sergeant Tidridge explained the best he could. He, in essence, refused, saying he wanted his lawyer present on the street before he did any tests. Sergeant Tidridge wrote out an appearance notice for impaired driving and requested that the accused sign the same and indicated that it was an offence not to do so, and that he was merely signing a receipt of receiving an appearance notice. He declined to sign the appearance notice; as a result, Sergeant Tidridge just gave him the appearance notice without having it signed. And in view of the fact that there was a companion of the accused that was sober, he was allowed to go.

All this took place in the City of Edmonton, in the Province of Alberta. The vehicle was

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checked and found to be, as one would expect with a 1977 vehicle, in excellent condition. It was left in the care of the friend.

That’s the facts, Your Honour.

The defence rested upon the effect to be given to s. 234.1 of the Criminal Code in light of s. 2(c)(ii) of the Canadian Bill of Rights. Section 2 of that enactment reads in part as follows:

2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to…

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

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

(iii) of the remedy by way of habeas corpus for the determination of the validity of his detention and for his release if the detention is not lawful;

Section 234.1 subs. (2) under which the appellant is charged in the present case is to be read in the context of s. 234.1 subs. (1). These subsections read as follows:

234.1(1) Where a peace officer reasonably suspects that a person who is driving a motor vehicle or who has the care or control of a motor vehicle, whether it is in motion or not, has alcohol in his body, he may, by demand made to that person, require him to provide forthwith such a sample of his breath as in the opinion of the peace officer is necessary to enable a proper analysis of his breath to be made by means of an approved road-side screening device and, where necessary, to accompany the peace officer for the purpose of enabling such a sample of his breath to be taken.

(2) Every one who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peace officer under subsection (1) is guilty of an indictable offence or an offence punishable on summary conviction and is liable

(a) for a first offence, to a fine of not more than two thousand dollars and not less than fifty dollars or to imprisonment for six months or to both;

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(b) for a second offence, to imprisonment for not more than one year and not less than fourteen days; and

(c) for each subsequent offence, to imprisonment for not more than two years and not less than three months.

As Mr. Justice Clement said in the course of the reasons for judgment which he delivered on behalf of the Appeal Division:

Section 234.1 has an operational relationship to s. 235 and is cast in a similar language mold. The relevant cases on the latter section require examination for such assistance as they may afford.

In fact the penalty provisions (subs. (2)) of the two sections are identical and the essential difference between the two sections is that s. 234.1 provides procedure requiring the driver of a motor vehicle to provide breath samples for analysis in a roadside screening device, whereas in s. 235 the procedure relates to the furnishing of a sample for analysis by a qualified technician. For the purposes of the present appeal I share the view of Mr. Justice Clement that the cases which have been decided in relation to s. 235 are relevant for consideration here.

The contention advanced on behalf of the appellant, and supported by the reasons for judgment of the learned trial judge was that when the appellant brought his vehicle to a stop in compliance with a signal from the peace officer and during the time when the peace officer, with the appellant’s ready co-operation, subjected him to certain sobriety tests and subsequently read him the “road-side tester demand to provide a breath sample”, the appellant was being “detained” within the meaning of s. 2(c) of the Bill of Rights, and that this detention afforded him “reasonable excuse” for refusing to comply with the demand to provide a breath sample within the meaning of s. 234.1(1) of the Criminal Code.

The main issues raised by the appellant’s defence are:

(1) Did the circumstances in which he refused to supply a sample of his breath to the peace officer afford him a “reasonable

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excuse” for such refusal within the meaning of s. 234.1 (1) of the Criminal code?

(2) Was he at any time “arrested or detained” by the peace officer within the meaning of s. 2(c)(ii) of the Bill of Rights?

In support of the contention that the circumstances here afforded a “reasonable excuse” to the appellant for his refusal to comply with the peace officer’s request for a sample of his breath, reliance is placed on the judgment of this Court in Brownridge v. The Queen[2], where it was held that the denial of the right to retain and instruct counsel without delay to an accused person who is under arrest and in jail afforded that person reasonable excuse for refusing to comply with the demand made pursuant to s. 235(2).

It will be readily appreciated that the circumstances of the Brownridge case are startlingly different from those disclosed by the statement of facts read into the record in the present case. In the case of Brownridge he had been arrested and was being held in the police cells at the time when his request to instruct counsel was refused, whereas in the present case the appellant, having complied with the peace officer’s “sobriety tests” was allowed to go away and was not thereafter detained. The difference between the two cases constitutes a striking example of the following proposition stated by Freedman J.A., as he then was, in R. v. Ballegeer[3], at p. 355, where he said:

There may be cases in which a debatable question arises as to whether the accused’s right of communicating with his lawyer was unduly delayed or hampered by the police. Such a question would have to be resolved upon its particular facts, with due regard to matters of time, place, availability of means of communication, and the like. This, however, is not such a case; in my view no debatable question arises.

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The case of Hogan v. The Queen[4] to which reference was also made in the Courts below, like Brownridge, is clearly distinguishable from the present case. There the initial demand for a sample of breath was made on the highway and it was only after the accused had complied with the peace officer’s request to accompany him to the police station that the accused stated that he wanted to see his lawyer before giving the breath sample. In the result the sample was given upon the constable advising the accused that he had no right to see anybody before giving it. Under these circumstances, the evidence of the result of the breath test was admitted at trial.

In support of the contention that the appellant was “arrested” or “detained” within the meaning of s. 2(c) of the Bill of Rights when he refused to comply with the peace officer’s demand, reliance is placed on behalf of the appellant on the judgment of the Supreme Court of Nova Scotia in R. v. MacDonald[5], where MacDonald J.A. stated at p. 356:

Parliament in using the words “arrested or detained” in s. 2(c) of the Canadian Bill of Rights contemplated different situations because although arrest includes detention, detention does not necessarily include arrest.

It appears to me to be obvious that the word “detention” does not necessarily include arrest, but the words “detain” and “detention” as they are used in s. 2(c) of the Bill of Rights, in my opinion, connote some form of compulsory restraint and I think that the language of s. 2(c) (iii) which guarantees to a person “the remedy of habeas corpus for the determination of the validity of his detention and for his release if the detention is not lawful”, clearly contemplates that any person “detained” within the meaning of the section is one who has been detained by due process of law. This construction is supported by reference to ss. 28(2)(b), 30, 136(a), 248 and 250 of the Criminal Code where the words “to detain” are consistently used in association with actual physical restraint.

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I agree with the Court of Appeal that the following observations made by Pigeon J. in the Brownridge case are pertinent to s. 234.1(1) and to the facts disclosed in this case. Notwithstanding the fact that Mr. Justice Pigeon spoke in the course of a dissenting opinion, I do not think that this statement is in any way in variance to the principle to which I have just referred. Mr. Justice Pigeon said, at pp. 943 and 944:

The legal situation of a person who, on request, accompanies a peace officer for the purpose of having a breath test taken is not different from that of a driver who is required to allow his brakes to be inspected or to proceed to a weighing machine under s. 39(6) or s. 78(3) of the Highway Traffic Act, R.S.O. 1970, c.202. Such a person is under a duty to submit to the test. If he goes away, or attempts to go away, to avoid the test, he may be arrested and charged but this does not mean that he is under arrest until this happens. He is merely obeying directions that police officers are entitled to issue. Motorists cannot reasonably expect to be allowed to seek legal advice before complying with such orders. Police officers are fully justified in treating as a definitive refusal a refusal to comply until legal advice is obtained.

Does s. 2(c) (ii) of the Bill of Rights alter the common law situation with respect to motorists requested to submit to a test required by the Criminal Code as opposed to tests required by provincial legislation? I do not think so. The provision under consideration applies to “a person who has been arrested or detained”. Such is not, it appears to me, the legal situation of one who has been required “to accompany” a peace officer for the purpose of having a breath test taken. The test may well be negative and, in such a case, it would be quite wrong to say that this person was arrested or detained and then released. Detained means held in custody as is apparent from such provision as s. 15 of the Immigration Act, R.S.C. 1970, c.I-2.

The observations of Macdonald J.A. in R. v. MacDonald, supra, are to be read in light of the fact that in the result he allowed the Crown’s appeal and made the following statement at p. 358:

In the case at bar it is my opinion that the right of the respondent to retain and instruct counsel was not abridged or infringed. In order for such right to be

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abridged or infringed some overt act would appear to be required and indeed, contemplated by the Canadian Bill of Rights. No such overt act existed here. What occurred was that although the right to retain and instruct counsel was not abridged or infringed, the respondent was unable to exercise the right due to his inability to make contact with any of the three lawyers he telephoned. It must also be remembered that before refusing to comply with the demand given him by Constable Brown he apparently abandoned his efforts and hence his request to contact counsel and advised Constable Brown that for the reason, inter alia, that he had been unsuccessful in contacting any of the three lawyers he had tried to reach by telephone that he was not in effect going to comply with the demand.

In the present case after the appellant had co-operated in furnishing the preliminary sobriety tests he was allowed to go away, and as I have indicated, I am of opinion that he was at no time detained.

In view of all the above, I have concluded that the appellant was not a person who had, while “arrested or detained” been deprived of the right to “retain and instruct counsel without delay” and I am unable to find any reasonable excuse for his failure to comply with the demand made to him by the peace officer.

I would accordingly dismiss this appeal.

Appeal dismissed.

Solicitors for the appellant: Bassie, Shymko & Kantor, Edmonton.

Solicitor for the respondent: W. Henkel, Edmonton.