Jumaga v. R., [1977] 1 SCR 486

Supreme Court of Canada

Jumaga v. R., [1977] 1 S.C.R. 486

Date: 1976-05-05

Joseph Jumaga Appellant;

and

Her Majesty The Queen Respondent.

1976: February 23; 1976: May 5.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Criminal law—Demand for breath sample—Request by motorist to consult with lawyer by telephone—Call made in presence of police officers—No objection or request for greater privacy—Refusal to submit to breathalyzer test—No reasonable excuse for refusal—No denial of right to retain and instruct counsel—Criminal Code, R.S.C. 1970, c. C-34, s. 235(2)—Canadian Bill of Rights, 1960, c. 44, s. 2.

The appellant was convicted on a charge of failing, without reasonable excuse, to comply with a demand by a peace officer to submit to a breathalyzer test contrary to s. 235(2) of the Criminal Code. An appeal from the conviction to the Manitoba Court of Appeal was dismissed, Freedman C.J.M. dissenting. An appeal to this Court followed.

A demand had been made, when the accused was brought to the police detachment office, that he provide a breath sample through the apparatus that had been set up in the office. Either then, or after he stated that he wished to consult with his lawyer by telephone, the demand was repeated and then a warning was given of the consequences of refusing to give a breath sample. The accused’s request to call his lawyer was granted but the call was made in the presence of police officers. The accused did not object nor did he request greater privacy. After the termination of the telephone conversation, which lasted not more than five minutes, there was a repetition of the demand that the accused provide a breath sample, which demand the accused refused.

The defence advanced was that the appellant had a “reasonable excuse” for refusing to comply with the demand made to him under s. 235(1) of the Code in that he was denied the right to privacy while telephoning to his lawyer and was thus denied “the right to retain and instruct counsel without delay” contrary to s. 2(c) (ii) of the Canadian Bill of Rights. The majority of the Court

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of Appeal concluded that there were two refusals, that the first refusal was without reasonable excuse, and the offence under s. 235 was then complete even though the second refusal would be excusable by reason of a denial of privacy in respect of the accused’s telephone call to his counsel. The trial judge, although stating that there were two refusals held that the first refusal, which was made before the accused’s telephone call to his lawyer, was “perhaps understandable”, but his second refusal, following the telephone call was without reasonable excuse.

Held (Laskin C.J. and Spence, Dickson and Beetz JJ. dissenting): The appeal should be dismissed.

Per Martland, Judson, Ritchie, Pigeon and de Grandpré JJ.: The majority in the Court of Appeal were in error in holding that the conviction could be upheld on the basis of what they called the “first refusal” to provide a breath sample. What was called the “first refusal” was not taken by the officer as a refusal but as a request for the opportunity to obtain legal advice, a request with which the officer complied. After the accused had completed his telephone conversation with his lawyer, the demand for a breath sample was reiterated and a definite refusal recorded. The trial judge was correct in basing his decision on the “second refusal”.

It could not be accepted that the accused had a reasonable excuse for his refusal because he had not been given the opportunity to communicate with his lawyer, otherwise than by using the telephone in the main room of the police station where the breathalyzer machine was set up and the police officers stood. When the accused asked to be allowed to consult his lawyer he raised no objection and made no request for any greater degree of privacy than was afforded to him, such as it may have been. He could not say that he was “deprived” of that for which he did not ask.

Stirland v. Director of Public Prosecutions, [1944] A.C. 315; Bertrand v. The Queen (1953), 17 C.R. 189, referred to.

Per Ritchie and de Grandpré JJ.: The evidence disclosed only one refusal expressed in a single conversation with the police commencing at the time when the appellant was first asked to use the breathalyzer machine and only interrupted by the appellant’s short talk with his lawyer. This conversation was characterized throughout by a consistently unco-operative attitude on the part of the appellant which remained unaltered in any way by the telephone call. The evidence of the presence of the

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police officers in the room where the telephone was situated had no bearing on the attitude which the appellant had displayed from the time when he first entered the police office. The telephone conversation resulted in no more than a further affirmation of that attitude and the circumstances under which it was made could not be treated as constituting a “reasonable excuse” for refusing to take the breathalyzer test.

Per Laskin C.J. and Spence, Dickson and Beetz JJ., dissenting: There was only one refusal within the meaning of that term in s. 235(2) of the Code. It was unreal to segment a single occurrence (which took place over a time span of not more than ten minutes) into a series of separate incidents and then isolate one of them for the purpose of founding a charge upon it under s. 235(2).

As to the crucial issue, it could not reasonably be made a condition that an accused be shown to have asked for privacy before consideration is given to providing it. Once an accused has requested that he be permitted to consult counsel, that should carry with it, to the knowledge of the police, a right to have the consultation in private, so far as circumstances permit. The right to counsel is diluted if it can only be secured by adding request to request. The police should not be put in an adversary position on this question; they are better placed than the ordinary person (who has been detained or arrested and is in police custody) to recognize what the right to counsel imports, and they should be alert to protect that right as an important element in the administration of justice through law, for which they are as much accountable as any others involved in the judicial process.

Brownridge v. The Queen, [1972] S.C.R. 926; R. v. Penner (1973), 39 D.L.R. (3d) 246; R. v. Maksimchuk, [1974] 2 W.W.R. 668; R. v. Balkan, [1973] 6 W.W.R. 617; R. v. Doherty (1974), 16 C.C.C. (2d) 494; R. v. Irwin, [1974] 5 W.W.R. 744; R. v. Bond (1973), 14 C.C.C. (2d) 497, referred to.

APPEAL by the accused from a judgment of the Court of Appeal for Manitoba[1], dismissing his appeal from conviction on a charge of failing to provide a breath sample contrary to s. 235(2) of the Criminal Code. Appeal dismissed, Laskin C.J. and Spence, Dickson and Beetz JJ. dissenting.

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S.A. Cohen, for the appellant.

S. Nozick, for the respondent.

The judgment of Laskin C.J. and Spence, Dickson and Beetz JJ. was delivered by

THE CHIEF JUSTICE (dissenting)—The appellant was charged with failing, without reasonable excuse, to comply with a demand by a peace officer to submit to a breathalyzer test. He was convicted of the charge, laid under s. 235(2) of the Criminal Code, and the conviction was affirmed on appeal after a trial de novo before a County Court judge. On further appeal, by leave, to the Manitoba Court of Appeal, the conviction was again affirmed but by a majority judgment, with Freedman C.J.M. dissenting. The accused was acquitted on a related charge of driving while impaired, arising out of the same incident, but that matter is not in issue here.

The important question in this Court is whether the appellant was deprived of “the right to retain and instruct counsel without delay”, within s. 2(c)(ii) of the Canadian Bill of Rights. If so, that would, admittedly, provide a reasonable excuse for the failure to submit to the breathalyzer test, within the very terms of s. 235 and apart from the larger view that I took of the effect of the Canadian Bill of Rights in my reasons in Brownridge v. The Queen[2].

The Manitoba Court of Appeal was unanimous in the view that the right to retain and instruct counsel (no question of delay arose here) involved the right to consult privately and confidentially with counsel. The majority did not reach this issue for the purposes of its actual decision because they concluded that there were two refusals to take a breathalyzer test, that the first refusal was without reasonable excuse, and the offence under s. 235 was then complete even though the second refusal would be excusable by reason of a denial of privacy in respect of the accused’s telephone call to his counsel. The County Court judge, although stating

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that there were two refusals, held that the first refusal, which was before the accused’s telephone call to his lawyer, was “perhaps understandable”, but his second refusal, following the telephone call was without reasonable excuse. The County Court judge took the view (for which he was held to be in error by the Court of Appeal) that the accused was not inhibited by the presence of police officers (who could overhear everything he said) from speaking freely and hence, inferentially, there was no denial of the right to retain and instruct counsel.

In the light of the facts on the record, and as they were assessed by the trial judge, there was only one refusal within the meaning of that term in s. 235(2) of the Criminal Code. I agree fully with the view of Freedman C.J.M. that it is unreal to segment a single occurrence (which took place over a time span of not more than ten minutes) into a series of separate incidents and then isolate one of them for the purpose of founding a charge upon it under s. 235(2).

The County Court judge’s reasons indicate quite clearly that the accused first “refused” to give a breath sample because he wished to consult his lawyer. Although the County Court judge described this as a refusal, it was nothing more than a deferring of a decision pending the requested opportunity to consult with a lawyer by telephone. A demand had been made, when the accused was brought to the police detachment office, that he provide a breath sample through the apparatus that had been set up in the office. Either then, or after he stated that he wished to call his lawyer, the demand was repeated and then a warning was given of the consequences of refusing to give a breath sample. The police, in short, were treating the sequence of events as part of one occurrence relating to a demand for a breathalyzer test, and this was clear as well from the repetition of the actual demand (a standard formula being used) after the accused spoke to his lawyer by telephone. It only became realistic to speak of a refusal following the repetition of the demand made after the termination of the telephone conversation, which had lasted not more than five minutes.

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In my opinion, the majority of the Manitoba Court of Appeal were wrong in the view that they took of this matter. There was an uninterrupted flow of events that ended with the telephone conversation and with a refusal thereafter to submit to a breath test. The statutory meaning of a refusal cannot be made to depend on whether an accused says “no, I wish to consult my lawyer” rather than “please wait until I consult my lawyer”. On any reasonable construction, there is no refusal in either case.

This brings me to the crucial issue, the one on which the County Court judge founded his affirmation of the conviction, and of which the Manitoba Court of Appeal took a different view. There is no doubt that the trial judge, consciously it appears, refused to follow existing judgments of the Manitoba Court of Appeal in R. v. Penner[3] and R. v. Maksimchuk[4]. These cases are at the heart of Chief Justice Freedman’s judgment. They carry on from the judgment of this Court in Brownridge v. The Queen, supra, which itself did not spell out what is involved in the right to retain and instruct counsel, other than recognizing a right of the accused to try and reach counsel and to use a telephone in the police station for that purpose. Penner merely restated, in the context of a breathalyzer situation, the well-established principle of privacy of communication between lawyer and client. In that case, police officers refused to leave the room in which the accused was telephoning his lawyer, saying that regulations required that he be under constant observation. That could have been done there, as it could have been done here, without denying privacy. There, as here, the police officers could overhear what was said by the accused. There, as here, the police officers could have maintained observation from an adjoining room.

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The difference between the Penner case and the present one is that in Penner the accused requested the officers to allow him to converse with his lawyer privately, and he refused on the advice of his lawyer to give a breath sample because of the denial of privacy. In Maksimchuk the accused did not ask for privacy, as he did in Penner, but the Manitoba Court of Appeal, affirming the trial judge on the point, was of the opinion that failure to provide privacy, although not requested, stood on the same footing as a refusal to provide it. That Court also drew on the majority judgment of the Alberta Appellate Division in R. v. Balkan[5], where counsel for the accused was not allowed to interview him in private after counsel attended in person at the police station following a telephone call from the accused. Counsel’s request for privacy was refused, and a police officer stayed and listened to the talk between counsel and the accused. Prowse J.A., speaking for himself and Allen J.A. said (at p. 492) that “prejudice [to the accused] must be inferred when [he] is not permitted to communicate confidentially with his counsel…”. There are, moreover, other passages in the reasons of Prowse J.A. which have a direct bearing on some of the considerations raised during the argument of the present appeal, and I reproduce them here, with approval (at p. 494):

In my view, the rights of an arrested or detained person should not be limited when they are exercised bona fide and when there is no undue delay or hinderance to the police in investigating a crime or in the administration of justice. There may well be a point at which the rights of a person who has been arrested and detained come into conflict with the rights of the community as a whole to have a crime investigated without delay. When such a conflict arises this question will have to be resolved by the Courts. It is sufficient to say, at the present time, that such a conflict does not arise in this case.

The privilege afforded confidential communications between a client and his counsel supports the conclusion that the common law attaches a great deal in importance to the right of a person instructing counsel to

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make a full and frank and confidential disclosure to him in so doing. In my view, the suggestion that a detained person must waive that privilege in order to exercise his rights under the Canadian Bill of Rights in such a manner as to make the police witnesses to his conversations with his solicitor is not in accord with the law.

I am of the opinion that when a detained person requests the right to converse with his counsel in private in the course of retaining and instructing him, his rights at common law and under s. 2(c) (ii) of the Canadian Bill of Rights are denied when the police insist in being in a position to overhear the communication between them. If the police were of the view that the respondent might attempt to take a drink of liquor, mouth wash or other substance which might affect the proposed test then it may well be that they were justified in keeping their eyes on the accused. However, this did not require them to stand in relation to the respondent and his counsel so as to destroy that degree of privacy required to permit the respondent to communicate in confidence with his counsel while making a full frank disclosure to him.

The views expressed by Prowse J.A. were approved by the Nova Scotia Supreme Court, Appeal Division, in R. v. Doherty[6], and Macdonald J.A., speaking for the Court, reaffirmed the right of an accused (whose counsel came to see him) to speak to and instruct him in private, at least in the sense of being entitled to consult with counsel out of the hearing of other persons, but without necessarily being out of sight of persons in authority.

The Manitoba Court of Appeal reaffirmed in R. v. Irwin[7], what it said in Penner and Maksimchuk and noted that “Crown counsel concedes that the right to consult and instruct counsel given by s. 2(c)(ii) of the Canadian Bill of Rights carries with it the right to do so in private and that the privacy in these cases does not need to be asked for, but arises as a natural adjunct to the right to instruct counsel”. In Irwin, however, accused waived the right to privacy and could not raise it as a bar to a conviction under s. 235(2) of the Criminal Code.

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R. v. Bond[8], a judgment of the Nova Scotia Supreme Court, Appeal Division, illustrates how related considerations may properly affect and qualify the extent to which the right to retain and instruct counsel may be asserted. There, the accused was allowed to reach first one counsel and then another by telephone, the second one indicating that he would be coming to the police station, which was some 25 miles away from where he was. In view of the two-hour time limit in s. 235(1), the police officer refused to wait for him, and after the police officer and then the accused spoke to the counsel again, the accused, on counsel’s advice, refused to give a breath sample. It was held that in these circumstances, there was no deprivation of the right to retain and instruct counsel.

There was some discussion on the argument of the appeal about the dimensions of the room in which the accused was detained (it was 20 feet by 30 feet, according to the evidence), and from which he telephoned his lawyer. There was an adjoining office in the building which had a movable telephone but, at the material time, it was in the barrack room of the detachment, a short distance away. No effort at all was made to ensure privacy for the accused when speaking to his counsel, privacy to the extent at least that was reasonable in the circumstances. The police officers could easily have observed the accused from the adjoining room (either through the door or through a glass partition) even assuming that the movable telephone could not have been brought back. The evidence shows that while the accused was speaking to his counsel, not only was he overheard but the police officers were making notes. The testimony was, “I was making my notes and observing him, you know, making my notes, of anything out of the ordinary”. There was no follow-up to determine whether there was any recording of the accused’s conversation.

Certainly, as was said in Balkan, in Bond and in Doherty, all circumstances must be considered in determining how far privacy can go; but the fact that it may have to be limited in some cases does not call for an unqualified denial of any privacy in

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all cases. I do not think that it can reasonably be made a condition that an accused be shown to have asked for it before consideration is given to providing it. Once an accused has requested that he be permitted to consult counsel, that should carry with it, to the knowledge of the police, a right to have the consultation in private, so far as circumstances permit. The right to counsel is diluted if it can only be secured by adding request to request. I would not put the police in an adversary position on this question; they are better placed than the ordinary person (who has been detained or arrested and is in police custody) to recognize what the right to counsel imports, and they should be alert to protect that right as an important element in the administration of justice through law, for which they are as much accountable as any others involved in the judicial process.

I would allow the appeal, set aside the judgments below and direct an acquittal.

The judgment of Martland, Judson and Pigeon JJ. was delivered by

PIGEON J.—The Chief Justice has stated the facts. I agree with him that the majority in the Court of Appeal were in error in holding that the conviction could be upheld on the basis of what they called the “first refusal” to provide a breath sample. The exact words spoken by the accused upon the demand made by the officer for the breathalyzer test are not important. What is decisive, in my opinion, is that what is called the “first refusal” was not taken by the officer as a refusal, but as a request for the opportunity to obtain legal advice, a request with which the officer complied. After the accused had completed his telephone conversation with his lawyer, the demand for a breath sample was reiterated and a definite refusal recorded. In my opinion, the trial judge was quite correct in basing his decision on the “second refusal” which is what, I think, he meant when he said:

There were undoubtedly two refusals, not just one. I would agree that a refusal before the phone call is, perhaps, understandable. Whatever conversation the accused had with his counsel, we don’t know and we are not entitled to know. That is privileged. But he again refused after that—refused “to blow”, as he said. And I

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don’t know how many opportunities one is supposed to have to take the test. He had two chances. And although he didn’t, to use the vernacular, “blow the hose”—I perhaps shouldn’t say “vernacular”, but he refused to blow, and I don’t see any reasonable grounds for his so doing.

I cannot accept that the accused had a reasonable excuse for his refusal because he had not been given the opportunity to communicate with his lawyer, otherwise than by using the telephone in the main room of the police station where the breathalyzer machine was set up and the police officers stood.

The fact is that when the accused asked to be allowed to consult his lawyer he raised no objection, he made no request for any greater degree of privacy that was afforded to him, such as it may have been. It was easy for him to say, at the trial, that he was inhibited when his statement could not be challenged or tested because his communication was privileged. This statement was therefore properly disregarded by the trial judge.

What is important is that the accused accepted the facilities offered to him by the police officers, as they were, without question. It is quite true that the omission of an accused, or of his counsel, to make an objection in the course of a trial does not always prevent the point being raised in appeal. However, this is true only when the objectionable course of conduct was such as to occasion a miscarriage of justice.

In Stirland v. Director of Public Prosecutions[9], Viscount Simon L.C. said at p. 328:

The failure of counsel to object may have a bearing on the question whether the accused was really prejudiced. It is not a proper use of counsel’s discretion to raise no objection at the time in order to preserve a ground of objection for a possible appeal, but where, as here, the reception or rejection of a question involves a principle of exceptional public importance, it would be unfortunate if the failure of counsel to object at the trial should lead to a possible miscarriage of justice.

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In the instant case, I fail to see on what basis it could be said that the accused was really prejudiced in the way he exercised his right to obtain legal advice. It appears to me that he really did more than fail to object, he accepted the facilities offered to him as they were and, therefore, what was said in Stirland would apply a fortiori (Bertrand v. The Queen[10], at p. 204).

It would be very detrimental to the proper administration of the breathalyzer legislation, to allow a motorist suspected of impairment to accept without objection the facilities offered to him for seeking legal advice and later to complain of the adequacy of those facilities in order to justify his refusal. Just as I consider it would be unfair to the accused to treat as a definite refusal to take the test what the police officer, at the time, treated as a request for an opportunity to seek legal advice, I would consider it wrong to allow him later to question the adequacy of the opportunity given to him after he had availed himself of it without complaining. The provision of the Bill of Rights on which the appellant relies is that “no law of Canada shall be construed or applied so as to… deprive a person who has been arrested or detained… of the right to retain and instruct counsel without delay…” I cannot see how the appellant can say he was “deprived” of that which he did not ask for.

At the hearing in this Court as at the trial, counsel for the accused made various submissions in respect of the layout of the main room of the police station and also of the sergeant’s office. In view of what I have just said, I see no reason in this case for going beyond what the decision of the question before the Court actually requires in my opinion. However, I think I should point out that there would be serious difficulties involved in allowing persons in the situation of the accused to have the free use, unsupervised for any length of time, of a private room such as a sergeant’s office. It would also be a serious matter to require the provision of safe and adequate facilities for private

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communication with legal counsel wherever breathalyzer test is to be performed, failing which everyone would have a reasonable excuse for refusing it.

I would dismiss the appeal.

The judgment of Ritchie and de Grandpré JJ. was delivered by

RITCHIE J.—I have had the advantage of reading the reasons for judgment prepared for delivery by the Chief Justice and by Mr. Justice Pigeon, and while I am in agreement with the latter, I subscribe also to an additional ground upon which I think that the appeal should be dismissed.

The defence advanced in the present case was that the appellant had a “reasonable excuse” for refusing to comply with a demand made to him by a police officer under s. 235(1) of the Criminal Code in that he was denied the right to privacy while telephoning to his lawyer and was thus denied “the right to retain and instruct counsel without delay” contrary to s. 2 (c)(ii) of the Canadian Bill of Rights. My brother Pigeon has accurately described the circumstances under which the telephone call was made and I agree with him that they do not amount to a deprivation of the right guaranteed to the appellant to retain and instruct counsel without delay.

In my view the evidence in fact only discloses one refusal expressed in a single conversation with the police commencing at the time when the appellant was first asked to use the breathalyzer machine and only interrupted by the appellant’s short talk with his lawyer. This conversation was characterized throughout by a consistently uncooperative attitude on the part of Jumaga which remained unaltered in any way by the telephone call. In my opinion, the evidence of the presence of the police officers in the room where the telephone was situated had no bearing on the attitude which the appellant had displayed from the time when he first entered the police office. The telephone conversation resulted in no more than a further affirmation of that attitude and the circumstances under which it was made cannot, in my view, be

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treated as constituting a “reasonable excuse” for refusing to take the breathalyzer test.

Apart from the above observations, I wish to make it plain that I am in complete accord with the reasons for judgment of my brother Pigeon.

Appeal dismissed, LASKIN C.J. and SPENCE, DICKSON and BEETZ JJ. dissenting.

Solicitors for the appellant: Manly W. Israel & Assoc., Winnipeg.

Solicitor for the respondent: The Attorney General for Manitoba.