Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for prince edward island
Constitutional law ‑‑ Charter of Rights ‑‑ Right to retain and instruct counsel and to be informed thereof ‑‑ Refusal to blow ‑‑ Province without duty counsel system ‑‑ Caution read but mention made of availability of legal aid but not of duty counsel ‑‑ Whether informational component of s. 10(b) violated when no mention made of duty counsel ‑‑ If so, whether evidence of refusal to blow nevertheless admissible ‑‑ Canadian Charter of Rights and Freedoms, ss. 10(b) , 24(2) ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 253 (a), 254(5) .
The respondent was charged with impaired driving, contrary to s. 253 (a) of the Criminal Code and with refusal to comply with a breathalyser demand, contrary to s. 254(5) of the Code. In the very early morning two police constables came upon his car which was parked at the side of the road. The keys were in the ignition, the engine was running and the respondent was asleep behind the wheel. One of the constables testified that he could smell a strong odour of alcohol on the respondent's breath, noticed that his speech was slurred and rambling and that his eyes appeared to be glassy and bloodshot. The second constable gave the respondent the standard Charter caution, which included advising of the right to counsel and of the availability of legal aid. Prince Edward Island did not have a "Brydges duty counsel" service available to detainees upon request and irrespective of means, and the constable accordingly made no mention of such service. The respondent, who was given time to consider each question, answered that he understood the caution and, when asked if he wished to call a lawyer, replied, "No". The officer then made a demand for samples of his breath.
At trial, the evidence of the respondent's refusal to provide a breath sample was excluded under s. 24(2) of the Charter and the refusal charge was dismissed. The trial judge also found that the Crown had not proven the impaired driving charge beyond a reasonable doubt and acquitted the respondent. The Crown was unsuccessful in its appeal of both acquittals to the Provincial Supreme Court and to the Court of Appeal. This appeal dealt only with respect to the charge of refusing to give a breath sample, contrary to s. 254(5) of the Criminal Code .
Held (McLachlin J. dissenting): The appeal should be allowed.
The issues are decided as follows:
Section 10(b) of the Charter
Section 10( b ) of the Charter does not impose a positive obligation on governments to provide a system of "Brydges duty counsel" or likewise afford all detainees a corresponding right to free, 24‑hour, preliminary legal advice. No breach of s. 10(b) occurred (per Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.). McLachlin J. (dissenting) found that the caution failed to meet the requirements of the informational component of s. 10(b) as set out in her reasons in R. v. Prosper.
Section 24(2) of the Charter
Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, Iacobucci and Major JJ. did not need to address this issue. McLachlin J. (dissenting) found that admission of the evidence would bring the administration of justice into disrepute.
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(1) Section 10(b) of the Charter
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: Section 10( b ) of the Charter does not impose a positive obligation on governments to provide a system of "Brydges duty counsel" or likewise afford all detainees a corresponding right to free, 24‑hour, preliminary legal advice.
The s. 10(b) caution complied with the informational requirements in that the respondent was informed not only of his right to retain and instruct counsel without delay, but also of his right to apply for Legal Aid. Given that there was, at the time of his detention, no system of 24‑hour, on‑call duty counsel in the province, the respondent did not need to be advised of any right to duty counsel. Having complied with the informational requirements under s. 10(b), the police were under no further obligation until such time as the respondent asserted his right to counsel by expressing some desire to speak to a lawyer.
Nothing indicated that respondent did not understand his rights. By clearly and unequivocally answering "No" when asked whether he wanted to call a lawyer, he failed to trigger any further obligations on the police under s. 10(b), such as the duty to provide him with a reasonable opportunity to contact counsel and to refrain from eliciting evidence until he had that opportunity. Absent a violation of s. 10(b), the evidence of the respondent's refusal to comply with the breathalyser demand was admissible.
Per L'Heureux‑Dubé and Gonthier JJ.: Section 10( b ) of the Charter does not impose a positive obligation on governments to provide a system of "Bridges duty counsel" or likewise afford all detainees a corresponding right to free, preliminary legal advice 24 hours a day. In light of this, the police properly informed the respondent of his s. 10(b) rights, as expanded by the jurisprudence. Since the respondent indicated that he did not want a lawyer, there was no obligation on the part of the police to facilitate the retention of a lawyer, be it free Legal Aid or otherwise. Absent a Charter breach, it was not necessary to deal with s. 24(2) of the Charter .
Per McLachlin J. (dissenting): The caution failed to meet the requirements of the informational component of s. 10(b) as set out in R. v. Prosper. Although no system of duty counsel existed in the jurisdiction, the police were obliged to inform the respondent both that he had a right to try to contact counsel immediately and that this right was not dependent on his ability to afford a lawyer. The caution, although it adequately communicated to the respondent that he had the right to retain and instruct counsel without delay, conveyed the impression that an impecunious accused was only entitled to the opportunity to consult counsel on application to the provincial legal aid program. The breach of s. 10(b) was complete on the failure of the police to inform the respondent properly of the content and scope of his right to counsel. The breach occurred at the informational stage; questions as to the required elements of the implementational component, diligence and waiver did not arise for consideration.
(2) Section 24(2) of the Charter
Per McLachlin J. (dissenting): The admission of evidence of respondent's refusal to provide a breath sample affected his right to a fair trial. First, the evidence at issue was conscripted and self‑incriminatory. Second, the evidence formed the actus reus of the offence itself. Finally, it was not known what respondent would have done had he been properly informed of his s. 10(b) rights. Where it is not possible to make a finding one way or another as to what the accused would have done had his s. 10(b) rights not been infringed, the Crown must suffer the consequences of this uncertainty. In such circumstances, courts will assume that the incriminating evidence would not have been obtained but for the violation.
Cases Cited
By Lamer C.J.
Referred to: R. v. Prosper, [1994] 3 S.C.R. 236; R. v. Brydges, [1990] 1 S.C.R. 190; R. v. Bartle, [1994] 3 S.C.R. 173.
By L'Heureux‑Dubé J.
Followed: R. v. Prosper, [1994] 3 S.C.R. 236; referred to: R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Pozniak, [1994] 3 S.C.R. 310; R. v. Harper, [1994] 3 S.C.R. 343.
By McLachlin J. (dissenting)
R. v. Prosper, [1994] 3 S.C.R. 236; R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Elshaw, [1991] 3 S.C.R. 24.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , ss. 10 ( b ) , 24(2) .
Criminal Code , R.S.C., 1985, c. C‑46 , ss. 253 (a), 254(5) .
APPEAL from a judgment of the Prince Edward Island Court of Appeal (1992), 105 Nfld. & P.E.I.R. 120, 78 C.C.C. (3d) 70, 42 M.V.R. (2d) 293, dismissing an appeal from a judgment of DesRoches J. (1992), 102 Nfld. & P.E.I.R. 210, dismissing an appeal from acquittal by Fitzgerald Prov. Ct. J. Appeal allowed, McLachlin J. dissenting.
Darrell E. Coombs, for the appellant.
John K. Mitchell, for the respondent.
Mark J. Freiman, for the intervener.
The judgment of Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major JJ. was delivered by
Lamer C.J. -- The issue in this appeal is the same as the one in the related case of R. v. Prosper, [1994] 3 S.C.R. 236, which was heard at the same time and is being handed down concurrently with judgment in this case. Specifically, does s. 10( b ) of the Canadian Charter of Rights and Freedoms create a positive constitutional obligation on governments to ensure that free and immediate, preliminary legal advice is available to all detainees?
I. Facts
The respondent was charged with impaired driving, contrary to s. 253 (a) of the Criminal Code , R.S.C., 1985, c. C-46 , and with refusal to comply with a breathalyser demand, contrary to s. 254(5) of the Code. Shortly after 1 a.m. on March 31, 1991, two police constables came upon a car parked at the side of the road. The keys were in the ignition, the engine was running and the respondent was asleep behind the wheel. Constable Dyck awakened the respondent and took him back to the police vehicle. At trial, the Constable testified that he could smell a strong odour of alcohol on the respondent's breath, noticed his speech was slurred and rambling and that his eyes appeared to be glassy and bloodshot.
Constable Millard gave the respondent the standard Charter caution and made a demand for samples of his breath. The wording of his caution was as follows:
. . . I am arresting you for impaired driving. You have the right to retain and instruct counsel without delay. You may call any lawyer that you wish. You have the right to apply for legal assistance without charge through the Provincial Legal Aid Program, do you understand . . . ?
After a few minutes, the respondent answered that he understood. When asked if he wished to call a lawyer, he replied, "No".
The appellant testified at trial that he had lost quite a bit of sleep during the two weeks preceding the date of the charge, as he was spending a great deal of time in the hospital with his mother who was ill. He explained that on the date of the charge he consumed "a few bottles of beer" with a friend, then got into his car and fell asleep for two-and-a-half hours.
At the time of the alleged offence, Prince Edward Island did not have a "Brydges duty counsel" service available to detainees upon request and irrespective of means. According to counsel for the appellant, a form of duty counsel under the Provincial Legal Aid Plan had been briefly available from July 1990 to January 18, 1991, but had been discontinued because of a shortage of funds. At the time of hearing this appeal, there continued to be no established, after-hours system of duty counsel in P.E.I.
At trial, the evidence of the respondent's refusal to provide a breath sample was excluded under s. 24(2) of the Charter and the refusal charge was dismissed. With respect to the impaired driving charge, the trial judge found that the Crown had not proven its case beyond a reasonable doubt and acquitted the respondent. The Crown made no argument on the application to exclude the evidence. However, the Crown appealed the acquittal on both charges to the Provincial Supreme Court and to the Court of Appeal. The appeal to the Supreme Court, Trial Division was dismissed as was the appeal to the Court of Appeal. Before this Court, the Crown appeals only with respect to the charge of refusing to give a breath sample, contrary to s. 254(5) of the Code.
II. Judgments Below
Provincial Court (Fitzgerald Prov. Ct. J.)
Fitzgerald Prov. Ct. J. granted the motion to exclude evidence pursuant to s. 24(2) of the Charter on the basis that the respondent had not been properly advised of his Charter right to counsel. He held that the police were required:
. . . to make it abundantly clear to [the respondent] that he has the option at that very point in time, before he [did] anything that would incriminate him, to avail himself of legal aid service within the Province.
He stated that he was not satisfied that the respondent would reasonably have understood that he had the right to contact legal aid immediately. The reference to legal aid service in the caution provided suggested that the respondent could make an application at some time in the future. Fitzgerald Prov. Ct. J. concluded that the wording of the caution delivered to the respondent did not satisfy the requirements laid down in R. v. Brydges, [1990] 1 S.C.R. 190.
Supreme Court, Trial Division (1992), 102 Nfld. & P.E.I.R. 210 (DesRoches J.)
DesRoches J. noted that this Court's decision in Brydges created a duty on the police to inform a person arrested or detained of the existence of duty counsel and of the ability to apply for legal aid. He found at p. 215 that even though the remarks of the majority on this point were obiter dicta, they "were obviously deliberately made and intended to serve as a future guide to the police and the courts". He cited authority for the proposition that obiter statements of the Supreme Court of Canada are binding on lower courts.
DesRoches J. concluded at pp. 217-18:
Surely the scope of the right to counsel as guaranteed by s. 10( b ) of the Charter is not dependent on the decision of provincial authorities respecting the provision of the means whereby arrested or detained persons can avail themselves of legal advice without delay. . . .
The absence of duty counsel service in this jurisdiction means that in the many cases of arrest or detention which occur outside of normal working hours those persons who cannot afford a lawyer, or those who do not know a lawyer, are effectively denied the right to immediate but temporary advice and assistance. In other words, they are denied the right to counsel.
It is not for the courts to dictate to provincial authorities in a case such as this the priorities to be placed on what is, without doubt, a limited financial budget. The Supreme Court of Canada in . . . [Schachter v. Canada, [1992] 2 S.C.R. 679] held that where s. 52 of the Constitution Act, 1982 is not engaged, a remedy under s. 24(1) of the Charter may nonetheless be available. This will be the case where, as in the instant case, the statute or provision in question is not in and of itself unconstitutional, but some action taken under it infringes a person's Charter rights. It is properly left to trial courts to determine in individual cases whether the right to counsel is infringed, and, if so, what remedy, if any, is appropriate in the circumstances. Having decided that duty counsel services will not be provided, it must be taken that provincial authorities are prepared to accept whatever legal consequences flow from that decision.
In the circumstances of this case I am not prepared to overturn the decision of the trial judge. The appeal is dismissed.
Court of Appeal (1992), 105 Nfld. & P.E.I.R. 120 (Carruthers C.J.P.E.I., Mitchell J.A. and Mullally J. (ad hoc))
Mitchell J.A. found that s. 10( b ) of the Charter made it incumbent on the police to advise a detainee that he has the right to have access to immediate although temporary, advice from duty counsel, irrespective of financial status. He added at p. 121 that it was "up to those responsible for the administration of justice in the Province to ensure that the service is available". He held that the essence of Brydges is that a detainee must be informed that he has the right to temporary free legal assistance immediately. Mitchell J.A. concluded that the advice given to the respondent fell short of this standard because it failed to make it clear that the respondent was entitled to have immediate legal advice without charge on a temporary basis. He also upheld the decision to exclude the impugned evidence under s. 24(2) of the Charter .
III. Analysis
As I explain in the related case of Prosper, s. 10(b) of the Charter does not impose a positive obligation on governments to provide a system of "Brydges duty counsel", or likewise, afford all detainees a corresponding right to free, preliminary legal advice 24 hours a day.
The respondent in this case was detained in the very early hours of the morning. The s. 10(b) caution which he received complied with the informational requirements laid down by the majority of this Court in Brydges and confirmed in R. v. Bartle, [1994] 3 S.C.R. 173. That is, he was informed not only of his right to retain and instruct counsel without delay, but also of his right to apply for Legal Aid. Since there was, at the time of his detention, no system of 24-hour, on-call duty counsel in existence in Prince Edward Island, it was clearly not necessary or appropriate to advise the respondent of any right to duty counsel. Having complied with the informational requirements under s. 10(b), the police were under no further obligation until such time as the respondent asserted his right to counsel by expressing some desire to speak to a lawyer.
Although the respondent was slow in responding to the police, nothing in the record suggests that he did not understand his rights. Indeed, the police appear to have acted cautiously by waiting for an answer to each question before proceeding to the next question. The respondent in this case clearly and unequivocally said "No" when asked whether he wanted to call a lawyer. By so doing, he failed to trigger any further obligations on the police under s. 10(b) (i.e., to provide him with a reasonable opportunity to contact counsel and to refrain from eliciting evidence until he had that opportunity). Accordingly, no violation of s. 10(b) has been made out on the facts of this case and the evidence of the respondent's refusal to comply with the breathalyser demand is admissible.
In the result, the appeal is allowed and a new trial ordered as requested by the appellant.
The reasons of L'Heureux-Dubé and Gonthier JJ. were delivered by
L'Heureux-Dubé J. -- This case and the four other cases heard at the same time (R. v. Bartle, [1994] 3 S.C.R. 173, R. v. Prosper, [1994] 3 S.C.R. 236, R. v. Pozniak, [1994] 3 S.C.R. 310, and R. v. Harper, [1994] 3 S.C.R. 343), and in which judgment is handed down contemporaneously with this one, raise the issue of the scope of the guarantee provided for in s. 10( b ) of the Canadian Charter of Rights and Freedoms , that is the right of everyone on arrest or detention "to retain and instruct counsel without delay and to be informed of that right". This case raises the particular issue of whether s. 10( b ) of the Charter creates a positive constitutional obligation on governments to ensure that free and immediate temporary legal advice is available to all detainees, an issue also raised in Prosper.
I have had the opportunity to read the reasons of the Chief Justice and McLachlin J. I agree with the Chief Justice that the appeal should be allowed and a new trial ordered and refer to my reasons in Prosper, as if herein recited at length. Like the Chief Justice, I am of the view that s. 10( b ) of the Charter "does not impose a positive obligation on governments to provide a system of `Brydges duty counsel', or likewise, afford all detainees a corresponding right to free, preliminary legal advice 24 hours a day" (p. 336). Consequently, the only remaining question is whether the police properly informed the respondent of his s. 10(b) rights, as expanded by the jurisprudence. In my view, the police officer so did when he gave the respondent the following caution:
. . . I am arresting you for impaired driving. You have the right to retain and instruct counsel without delay. You may call any lawyer that you wish. You have the right to apply for legal assistance without charge through the Provincial Legal Aid Program, do you understand . . . ?
Since the respondent indicated that he did not want a lawyer, there was no obligation on the part of Constable Millard to facilitate the retention of a lawyer, be it free Legal Aid or otherwise.
Since there was no breach of s. 10( b ) of the Charter , it is not necessary to deal with s. 24(2) of the Charter . The trial judge and the Court of Appeal, consequently, erred in finding a Charter breach and in excluding the breathalyser evidence. A new trial is in order.
I would dispose of the appeal as proposed by the Chief Justice.
The following are the reasons delivered by
McLachlin J. (dissenting) -- Following the principles discussed in my reasons in R. v. Prosper, [1994] 3 S.C.R. 236, released concurrently with judgment in this appeal, I would find that s. 10( b ) of the Canadian Charter of Rights and Freedoms was breached and that the evidence should not have been admitted under s. 24(2). Accordingly, I would confirm the order of acquittal.
I. Facts
The facts and judgments below have been set out in full by the Chief Justice. To summarize, the respondent was arrested at approximately 1:20 a.m. on March 31, 1991, after being found by two police constables asleep behind the wheel of his running car at the side of the road. The respondent was awakened and given the following caution at the scene:
. . . I am arresting you for impaired driving. You have the right to retain and instruct counsel without delay. You may call any lawyer that you wish. You have the right to apply for legal assistance without charge through the Provincial Legal Aid Program, do you understand . . . .
A few minutes after the caution was read, the respondent indicated that he understood. When asked if he wanted to call a lawyer, the respondent replied, "No". He then refused to provide a breath sample.
The trial judge found that the respondent suffered an infringement of his right to retain and instruct counsel without delay guaranteed by s. 10( b ) of the Charter . He further found that the admission of the evidence of the respondent's statement of refusal to comply with the breathalyser demand would bring the administration of justice into disrepute. The evidence was excluded under s. 24(2) of the Charter and the respondent was acquitted. The acquittal was upheld by the provincial Supreme Court, Trial Division (1992), 102 Nfld. & P.E.I.R. 210, and the Court of Appeal (1992), 105 Nfld. & P.E.I.R. 120.
II. Analysis
Section 10(b)
In my view, the caution given to the accused in this case failed to meet the requirements of the informational component of s. 10(b) as set out in Prosper. There was at the time of the respondent's detention no system of duty counsel in existence in the jurisdiction. Nevertheless, the police were obliged to inform the respondent both that he had a right to try to contact counsel immediately and that this right was not dependent on his ability to afford a lawyer. The caution given to the respondent in this case, although it adequately communicated to the respondent that he had the right to retain and instruct counsel without delay, conveyed the impression that an impecunious accused was only entitled to the opportunity to consult counsel on application to the Provincial Legal Aid Program. As was the case in R. v. Bartle, [1994] 3 S.C.R. 173, released concurrently with this judgment, the charge's reference to Legal Aid implied that the free legal assistance was available only on application, thereby suggesting that the right to retain and instruct counsel was immediate only if the detainee could afford private counsel.
The breach of s. 10(b) was complete on the failure of the police to inform the respondent properly of the content and scope of his right to counsel. I emphasize that the breach occurred in this case at the informational stage; since the respondent was not properly cautioned, the required elements of the implementational component do not arise for consideration. Similarly, questions of diligence and waiver do not arise on this appeal.
It remains to be determined whether the evidence obtained following the breach should be excluded under s. 24(2).
Section 24(2)
In determining whether evidence obtained in the course of a s. 10(b) violation ought to be admitted, a court must balance factors relating to the effect of admission on the fairness of the trial, the seriousness of the breach, and the effect of exclusion on the repute of the administration of justice: R. v. Collins, [1987] 1 S.C.R. 265, at pp. 284-86.
The first factor to be considered under the Collins test is whether the admission of the impugned evidence would adversely affect the fairness of the trial. In the circumstances of this case, I am satisfied that the admission of the respondent's refusal to provide a breath sample would in fact affect his right to a fair trial. First, the evidence at issue was conscripted and self-incriminatory. Second, the evidence forms the actus reus of the offence itself. Finally, there is nothing on the record to indicate what the respondent would have done had he been properly informed of his s. 10(b) rights. I share the view set out by Lamer C.J. in Bartle, supra, at p. 211, that where it is not possible to make a finding one way or another as to what the accused would have done had his s. 10(b) rights not been infringed, it is the Crown which must suffer the consequences of this uncertainty. In such circumstances, courts will assume that the incriminating evidence would not have been obtained but for the violation.
Having concluded that the admission of the statement of refusal would render the trial unfair, it is unnecessary to examine the second branch of the Collins test, which looks at the seriousness of the breach. This Court in R. v. Elshaw, [1991] 3 S.C.R. 24, at p. 43, emphasized that the first two factors in the Collins test are alternative grounds for the exclusion of evidence, not for its admission.
Turning to the third element of the Collins test, I am satisfied that in all the circumstances the exclusion of the impugned evidence is in the long-term interests of the administration of justice. Although the evidence was central to the prosecution of a serious, continuing social problem, to admit self-incriminatory evidence which was conscripted following a breach of s. 10(b) would, on the whole, bring the administration of justice into disrepute. Accordingly, the respondent's statement of refusal to comply with the breathalyser demand should be excluded under s. 24(2) of the Charter .
III. Disposition
I would dismiss the appeal and confirm the order of acquittal.
Appeal allowed, McLachlin J. dissenting.
Solicitor for the appellant: The Attorney General of Prince Edward Island, Charlottetown.
Solicitors for the respondent: Stewart, McKelvey, Stirling, Scales, Charlottetown.
Solicitors for the intervener: McCarthy, Tétrault, Toronto.
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