R. v. Prosper

R. v. Prosper
Collection
Supreme Court Judgments
Date
1994-09-29
Report
[1994] 3 SCR 236
Case number
23178
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Nova Scotia
Subjects
Constitutional law
Notes
SCC Case Information: 23178
Decision Content
R. v. Prosper, [1994] 3 S.C.R. 236
Cyril Patrick Prosper Appellant
v.
Her Majesty The Queen Respondent
and
The Charter Committee on Poverty Issues Intervener
Indexed as: R. v. Prosper
File No.: 23178.
1994: March 2, 3; 1994: September 29.
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 nova scotia
Constitutional law ‑‑ Charter of Rights ‑‑ Right to retain and instruct counsel and to be informed thereof ‑‑ Free duty counsel ‑‑ Arrest made outside normal working hours ‑‑ Rights read to person under arrest mentioning availability of legal aid ‑‑ Appellant wishing to speak with lawyer and provided list of legal aid lawyers ‑‑ Appellant unable to contact legal aid lawyer and unable to afford private lawyer ‑‑ Breathalyser test taken and failed ‑‑ Whether s. 10(b) of the Charter imposing substantive constitutional obligation on governments to provide free and immediate preliminary legal advice upon request -- Whether appellant's s. 10 (b) right was violated ‑‑ If so, whether the breathalyser evidence should be excluded under s. 24(2) ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 10 (b), 24(2) ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 253 (a), (b), 254(3) , (5) , 258(1) (c)(ii), (d), 503(1) (a).
Late one Saturday afternoon, two police officers observed the appellant driving erratically. Following a chase on foot, he was arrested and charged with car theft, with having care and control of a motor vehicle with a blood alcohol level above the legal limit contrary to s. 253 (b) of the Criminal Code , and with having the control of a motor vehicle while impaired contrary to s. 253 (a). He had a strong smell of alcohol on his breath, bloodshot eyes, his speech was intermittent and slurred and he was swaying from side to side. A section 10 (b) Charter caution was read to him from a card, advising of the right to apply for free legal aid. The appellant indicated that he wanted to speak with a lawyer. The police provided him with a list of legal aid lawyers and, when this search proved unsuccessful, gave him a telephone book to continue his search. The police did not at first realize that all but one of the lawyers on the list were currently unavailable outside regular office hours, but they informed the appellant of this fact upon learning of this situation. The appellant declined to call lawyers in private practice because he could not afford their services. He then agreed to take the breathalyser tests.
The trial judge dismissed the s. 253 (a) charge on the ground that he had a reasonable doubt. The defence, while conceding that all elements on the s. 253 (b) charge had been proved, successfully argued that appellant's s. 10 (b) Charter rights had been infringed, that the breathalyser certificate should be excluded under s. 24(2) of the Charter and that the charge should be dismissed. The Court of Appeal allowed the Crown's appeal, substituted a conviction under s. 253(b) of the Code and remitted the matter back to the trial court for sentencing. At issue here were whether the s. 10 (b) Charter right to retain and instruct counsel without delay imposed a substantive constitutional obligation on governments to ensure that duty counsel is available upon arrest or detention to provide free and immediate preliminary legal advice upon request, whether appellant's s. 10 (b) right was violated, and if so, whether the breathalyser evidence should be excluded under s. 24(2) of the Charter .
Held (La Forest, L'Heureux‑Dubé, Gonthier and Major JJ. 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 substantive constitutional obligation on governments to ensure that duty counsel is available upon arrest or detention to provide free and immediate preliminary legal advice upon request (unanimous). Section 10 (b) was violated: per Lamer C.J. and Sopinka, Cory, McLachlin and Iacobucci JJ. (La Forest, L'Heureux‑Dubé, Gonthier and Major JJ. dissenting).
Section 24(2) of the Charter
The evidence should be excluded as its admission would bring the administration of justice into disrepute: per Lamer C.J. and Sopinka, Cory, McLachlin and Iacobucci JJ. (La Forest, L'Heureux‑Dubé and Gonthier JJ. dissenting). Major J. did not address this issue.
----------------
(1) Section 10 (b) of the Charter
Per Lamer C.J. and Sopinka, Cory and Iacobucci JJ.: It is not constitutionally sufficient for law enforcement authorities simply to repeat the words of the Charter by cautioning detainees of their right "to retain and instruct counsel without delay". Two additional elements to the information component of s. 10 (b) are required: (1) information about access to counsel free of charge where an accused meets the prescribed financial criteria set by provincial Legal Aid, and (2) information about access to duty counsel (whether staff lawyers or in private practice) providing immediate, although temporary, legal advice irrespective of financial status. The information to be conveyed to detainees by police is to refer to services actually available within the jurisdiction.
The issue of whether the Charter guarantees a right to state‑funded counsel at trial and on appeal did not arise here. It is neither appropriate nor necessary to find that s. 10 (b) imposes a substantive obligation on governments to ensure that "Brydges duty counsel" is available to detainees, or likewise, that it provides all detainees with a corresponding right to such counsel. First, s. 10(b) does not, in express terms, constitutionalize the right to free and immediate legal advice upon detention. A clause expressly creating such a right was considered and deliberately omitted by the framers of the Constitution and it would be imprudent for this Court not to attribute any significance to this fact. Requiring governments to spend limited resources in providing such a service also weighed against this interpretation. Second, the implications of finding a constitutional obligation on governments to make "Brydges duty counsel" available and a violation of s. 10 (b) for failure to do so would be far‑reaching and should be avoided. Moreover, the Charter rights of detainees can be sufficiently protected by an obligation on police to "hold off" questioning detainees until they have been given a reasonable opportunity to contact counsel.
Section 10(b) imposes both informational and implementational duties on state authorities who arrest or detain a person. The existence of a "holding-off" period flows from the implementational duties. Once a detainee has indicated a desire to exercise the right to counsel, the state must provide that person with a reasonable opportunity to consult counsel and state agents may not elicit incriminatory evidence from the detainee until that opportunity has been given. What constitutes a reasonable opportunity depends on the surrounding circumstances, which include the availability of duty counsel services in the jurisdiction. The availability or unavailability of duty counsel services affects the length of the holding-off period.
Section 10(b) serves to protect the right against self-incrimination -- one of the principles of fundamental justice under s. 7 of the Charter . A holding-off period accommodates a detainee's right against self-incrimination.
The duty on state agents to inform individuals of their right to counsel does not arise until a person has been detained within the meaning of s. 10. Detention involves some form of coercion or compulsion by the state which results in a deprivation of liberty. Section 10(b) accordingly is, among other things, intended to safeguard the liberty interests of detainees which are constitutionally protected under s. 7 of the Charter and to assist detainees in regaining their freedom. Any deprivation of liberty during a holding-off period would be minimal and in accordance with the principles of fundamental justice under s. 7 . Any delay which is considered excessive can be challenged under s. 9 of the Charter which protects against arbitrary detention or imprisonment.
Courts must ensure that the right to counsel is not too easily waived. An additional informational obligation on police is triggered once a detainee, who has previously asserted this right, indicates a change of mind and no longer wants legal advice. The police must at this point tell the detainee of the right to a reasonable opportunity to contact counsel and of the obligation on the part of the police to hold off during this period. Any indication of a change of mind must be clear and the burden of establishing an unequivocal waiver is on the Crown. The waiver must be free and voluntary and must not be the product of either direct or indirect compulsion. The standard required for an effective waiver of counsel is very high. A person who waives a right must know what is being given up if the waiver is to be valid. The s. 10(b) right to counsel, however, must not be turned into an obligation on detainees to seek the advice of a lawyer.
Compelling and urgent circumstances may require that the police not hold off. In the context of impaired driving cases, however, the two-hour evidentiary presumption available to the Crown (under s. 258(1) (c)(ii)) does not, by itself, constitute such a compelling or urgent circumstance. Urgency is not created by mere investigatory and evidentiary expediency. A detainee's s. 10(b) rights must take precedence over the statutory right of the Crown to rely on an evidentiary presumption. Loss of this presumption is one of the prices to be paid for not implementing a system of "Brydges duty counsel". Consideration of s. 1 of the Charter is neither necessary nor appropriate here.
The appellant's s. 10 (b) Charter rights were infringed in two respects. First, after asserting his right to counsel and trying repeatedly to contact a lawyer, the appellant was not informed when he changed his mind and agreed to take the breathalyser test that the police were required to hold off from their investigation until he had had a reasonable opportunity to contact counsel. Second, the police in fact failed to hold off administering the breathalyser tests and so failed to afford him this opportunity. There were no urgent or compelling circumstances which justified the police in proceeding so precipitously with the breathalyser tests. The appellant acted with due diligence in trying to contact counsel. To have expected more of him would have been unreasonable. He cannot be taken to have chosen to take the test with full knowledge of his s. 10 (b) rights. The inference of fact that the appellant acted out of frustration when he finally submitted to the breathalyser demand should not be interfered with.
The appellant neither explicitly nor implicitly waived his right to counsel and could not be taken to have understood what he was giving up. The fact that the police advised the appellant of the broad parameters of the jeopardy in which he found himself was no substitute for legal advice from a lawyer.
Per McLachlin J.: Every person detained by the police has the right to retain and instruct counsel without delay and to be informed of that right. Every detainee, accordingly, is entitled to an opportunity to retain and instruct counsel without delay, regardless of the time and place of the detention or the fact that the detainee has no money.
The right consists of an informational component and an implementational component. Under the informational component, the police must inform all detainees that they are entitled to have an opportunity to contact counsel immediately, and that their right to do so is not dependent on their ability to afford a private lawyer. This must be done even where the means by which that right can be exercised may not seem at hand. In those jurisdictions which provide some system of free, preliminary legal advice, the police must also inform detainees of the existence and availability of these services and of the means by which such advice can be accessed.
Under the implementational component, s. 10 (b) requires that the detainee be given an opportunity, or the means, to "retain and instruct counsel without delay". If the detainee chooses not to contact counsel, no breach results. If the legal system fails to provide the detainee with the opportunity to consult counsel without delay for whatever reason ‑‑ be it lack of facilities, information, willing counsel or some other impediment ‑‑ breach of s. 10 (b) is established. If evidence is taken in contravention of this duty, its admissibility falls to be decided under s. 24(2) of the Charter .
A judicially imposed "holding‑off" period is not required when counsel cannot immediately be made available. Nothing in the language of s. 10 (b) authorizes the dilution of the right to counsel by the imposition of a "holding‑off" period. The section clearly states that a detainee has the right to retain and instruct counsel without delay. It is problematic to suggest that courts can extend the period of "delay" for up to 48 hours or more.
While the police may choose to "hold off" they are not obliged to do so. Ultimately, whether or not they "hold off", if they take evidence from the detainee in violation of his or her rights, the authorities must be prepared to accept the risk that the evidence may not be admissible against the detainee at trial under s. 24(2) of the Charter . This applies in all cases, even where the Criminal Code prescribes that evidence must be taken within a stipulated time period, as for breathalyser tests. A detainee's constitutional rights are not attenuated simply because Parliament chooses to set a time limit for gathering a particular kind of evidence. At the same time, the urgency of the situation may be a factor weighing in favour of reception of the evidence when s. 24(2) is applied.
The requirements of the informational component of s. 10 (b) were met here. The police were originally unaware of the Legal Aid lawyers' working to rule campaign when giving appellant the list of legal aid lawyers and they informed him of the campaign on learning of it.
The requirements of the implementational component of s. 10 (b) were not satisfied here. The appellant clearly indicated a desire to speak to counsel prior to giving evidence and was diligent in pursuing his right. In the circumstances it would be unreasonable to expect the appellant to have done anything more than he did. Appellant did not waive his right to counsel when ‑‑ "out of frustration" ‑‑ he finally agreed to submit to the breathalyser tests. He was prevented from exercising his right to counsel because of institutional conditions beyond his control. This violated s. 10 (b) of the Charter .
Per L'Heureux‑Dubé J. (dissenting): Section 10 (b) of the Charter does not require the provinces to provide free and immediate duty counsel services to detainees. While there may be certain minimum levels of Legal Aid imposed by s. 7 in the context of an accused who is being tried for an offense whose penalty might result in the deprivation of the accused's life, liberty, or security of the person, access to 24-hour duty counsel services upon arrest or detention is clearly far above any such minimum threshold.
Arguments based on the "living tree" theory of constitutional development to the effect that the Constitution has evolved to the point where state-funded duty counsel should be constitutionally guaranteed must fail. The drafters of the Constitution considered and rejected such a proposal. The "living tree" theory has its limits and has never been used to transform a document completely or to add a provision which was specifically rejected.
The Chief Justice's "holding‑off" proposal is also rejected. While a detainee must be provided with a reasonable opportunity, free from police questioning, to consult with counsel where he or she expresses a desire to do so, the duration of the "reasonable opportunity" should not depend on the existence or non-existence of duty counsel programs. The constitutional rights guaranteed under s. 10 (b) of the Charter are uniform across the country and should not depend on the existence or non-existence of programs, such as 24-hour duty counsel services, that themselves are not mandated by the Constitution. Furthermore, even if s. 10 (b) did impose a long "holding-off" period in provinces without duty counsel programs, such a holding‑off period would not be required with respect to breathalyser tests. In urgent or dangerous circumstances, the police need not provide detainees with a reasonable opportunity to consult counsel before questioning them. Such urgency exists in the case of a breathalyser test. The test must be administered "forthwith" and the timing for efficacy of that test is two hours, a time frame also required by law.
Per La Forest J. (dissenting): The reasons of L'Heureux‑Dubé J. regarding the alleged constitutional guarantee of state‑funded duty counsel and the alleged breach of s. 10 (b) of the Charter in the circumstances were agreed with.
Per Gonthier J. (dissenting): Notwithstanding agreement with Lamer C.J. as to the scope of the obligation of the police regarding disclosure of existing and available duty counsel services to those under arrest or detention, the reasons of L'Heureux‑Dubé J. as to the reasonable opportunity to be given a detainee to retain and instruct counsel, particularly as applied to a demand for a breathalyser test, were agreed with.
Per Major J. (dissenting): The principles expressed by Lamer C.J. were agreed with. In the circumstances, however, the accused was properly advised and had a reasonable opportunity to contact counsel prior to taking the breathalyser test in accordance with his s. 10 (b) rights.
(2) Section 24(2) of the Charter
Per Lamer C.J. and Sopinka, Cory and Iacobucci JJ.: The breath samples were conscripted evidence which might not have been obtained had the appellant's s. 10 (b) rights not been infringed and should be excluded under s. 24(2) as capable of bringing the administration of justice into disrepute. The breach of the appellant's right to counsel went directly to his privilege against self‑incrimination, and receipt of the breathalyser evidence resulting from this breach would undermine this privilege, thereby rendering the trial process unfair. Neither the undeniably good faith on the part of the police, nor the relative seriousness of the drinking and driving offence could compensate for the adjudicative unfairness that admission of the evidence would produce.
Per McLachlin J.: The admission of the breathalyser evidence would tend to bring the administration of justice into disrepute.
Per L'Heureux‑Dubé J. (dissenting): Had there been an infringement of s. 10 (b), the evidence should not have been excluded under s. 24(2) of the Charter . First, the factors concerning the fairness of the trial favour the admission of the evidence. Breathalyser tests cannot simply be characterized as self-incriminating evidence in the same way as a confession. Rather, they are indicia of an existing physical condition that could have been discovered by other means, whether or not the police denied the appellant his s. 10 (b) rights. Second, the factors focusing on the seriousness of the violation of the Charter also militate towards admission rather than exclusion of the breathalyser results. A breach, if one occurred here, was not serious and the police acted in good faith. Finally, the offense of operating a motor vehicle while impaired is serious and therefore, in light of the nature of the Charter violation, had there been one, and its minimal incidence on the fairness of the trial, excluding the evidence would bring the administration of justice into disrepute.
Per La Forest J. (dissenting): It was in strictness unnecessary to comment on whether the breathalyser evidence should be excluded. The police officer here did everything possible to help the appellant obtain a lawyer.
Per Gonthier J. (dissenting): Appellant's s. 10 (b) Charter rights were not infringed, and even if they had been, the breathalyser evidence should not have been excluded under s. 24(2) .
Cases Cited
By Lamer C.J.
Applied: R. v. Bartle, [1994] 3 S.C.R. 173; considered: R. v. Brydges, [1990] 1 S.C.R. 190; referred to: R. v. Matheson, [1994] 3 S.C.R. 328; R. v. Pozniak, [1994] 3 S.C.R. 310; R. v. Harper, [1994] 3 S.C.R. 343; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Manninen, [1987] 1 S.C.R. 1233; R. v. Evans, [1991] 1 S.C.R. 869; R. v. Ross, [1989] 1 S.C.R. 3; R. v. P. (M.B.), [1994] 1 S.C.R. 555; R. v. Jones, [1994] 2 S.C.R. 229; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Therens, [1985] 1 S.C.R. 613; Clarkson v. The Queen, [1986] 1 S.C.R. 383; R. v. Strachan, [1988] 2 S.C.R. 980; R. v. Burnison (1979), 70 C.C.C. (2d) 38; R. v. Deruelle, [1992] 2 S.C.R. 663.
By McLachlin J.
Considered: R. v. Askov, [1990] 2 S.C.R. 1199; referred to: R. v. Matheson, [1994] 3 S.C.R. 328; 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; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Manninen, [1987] 1 S.C.R. 1233; R. v. Dubois (1990), 54 C.C.C. (3d) 166, [1990] R.J.Q. 681; R. v. Brydges, [1990] 1 S.C.R. 190.
By L'Heureux‑Dubé J. (dissenting)
R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Harper, [1994] 3 S.C.R. 343; R. v. Pozniak, [1994] 3 S.C.R. 310; R. v. Matheson, [1994] 3 S.C.R. 328; R. v. Robinson (1989), 73 C.R. (3d) 81; Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016; Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; R. v. Manninen, [1987] 1 S.C.R. 1233; R. v. Tremblay, [1987] 2 S.C.R. 435; R. v. Strachan, [1988] 2 S.C.R. 980; R. v. Ross, [1989] 1 S.C.R. 3; R. v. Black, [1989] 2 S.C.R. 138; R. v. Smith (Joey Leonard), [1989] 2 S.C.R. 368; R. v. Brydges, [1990] 1 S.C.R. 190; R. v. Evans, [1991] 1 S.C.R. 869; R. v. Therens, [1985] 1 S.C.R. 613; R. v. Hufsky, [1988] 1 S.C.R. 621; R. v. Thomsen, [1988] 1 S.C.R. 640; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Jacoy, [1988] 2 S.C.R. 548; R. v. Debot, [1989] 2 S.C.R. 1140; R. v. Schmautz, [1990] 1 S.C.R. 398; R. v. Elshaw, [1991] 3 S.C.R. 24; R. v. Grant, [1991] 3 S.C.R. 139; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Ladouceur, [1990] 1 S.C.R. 1257; R. v. Wilson, [1990] 1 S.C.R. 1291; R. v. Mellenthin, [1992] 3 S.C.R. 615.
By La Forest J. (dissenting)
R. v. Brydges, [1990] 1 S.C.R. 190; R. v. Bartle, [1994] 3 S.C.R. 173.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 9 , 10 (b), 24(2) .
Constitution Act, 1982, s. 52 .
Criminal Code, R.S.C. 1985, c. C‑46, ss. 253 (a), (b) [ad. R.S.C., 1985, c. 27 (1st Supp.), s. 36], 254(3), (5) [ad. idem], 258(1)(c)(ii), (d) [ad. idem], 503(1)(a).
Authors Cited
Canada. Parliament. Special Joint Committee of the Senate and House of Commons on the Constitution of Canada. Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, Issue No. 46 (January 27, 1981). First Session of the Thirty-second Parliament, 1980-81. Ottawa: Queen's Printer, 1981.
Hogg, Peter W. Constitutional Law of Canada, vol. 2, 3rd ed. (Supplemented). Toronto: Carswell, 1992 (loose-leaf).
Lafontaine, Y. "Pourquoi au juste?" (1992), 32 Actif 32.
Moore, Kathryn. "Police Implementation of Supreme Court of Canada Charter Decisions: An Empirical Study" (1992), 30 Osgoode Hall L.J. 547.
Prairie Research Associates. Duty Counsel Systems: Summary Report (April 1993).
Prairie Research Associates. Duty Counsel Systems: Technical Report (April 1993)
.Statistics Canada. Canadian Centre for Justice Statistics. Courts Program. Legal Aid in Canada: Description of Legal Aid Operations. Ottawa: Statistics Canada, 1993.
APPEAL from a judgment of the Nova Scotia Court of Appeal (1992), 113 N.S.R. (2d) 156, 75 C.C.C. (3d) 1, 38 M.V.R. (2d) 268, allowing an appeal from an acquittal by Sherar Prov. Div. J. and substituting a conviction. Appeal allowed, La Forest, L'Heureux‑Dubé, Gonthier and Major JJ. dissenting.
Roger A. Burrill and Vincent Calderhead, for the appellant.
John C. Pearson, for the respondent.
Mark Freiman, for the intervener.
The judgment of Lamer C.J. and Sopinka, Cory and Iacobucci JJ. was delivered by
Lamer C.J. -- This case was heard together with four other cases raising questions about the scope of the state's obligations with respect to duty counsel services under s. 10 (b) of the Canadian Charter of Rights and Freedoms . These other cases, which consist of R. v. Matheson, [1994] 3 S.C.R. 328, from Prince Edward Island, R. v. Bartle, [1994] 3 S.C.R. 173, and R. v. Pozniak, [1994] 3 S.C.R. 310, from Ontario and R. v. Harper, [1994] 3 S.C.R. 343, from Manitoba, are handed down contemporaneously with judgment in this case. The specific issue raised here and in Matheson is whether s. 10 (b) creates a positive constitutional obligation on governments to ensure that free and immediate preliminary legal advice is available upon arrest or detention, and if it does not, what state obligations, if any, exist in a jurisdiction where "Brydges duty counsel" is not available to detainees.
I. Facts
The appellant was charged with having care and control of a motor vehicle while his blood alcohol level was in excess of 80 mg of alcohol in 100 ml of blood, contrary to s. 253 (b) of the Criminal Code, R.S.C., 1985, c. C-46 , and with having the control of a motor vehicle while impaired, contrary to s. 253(a) of the Code. The appellant did not testify at his trial and no evidence was called by the defence. The Crown called one witness, Constable Young, and tendered a breathalyser certificate.
The facts which emerged at trial are that the appellant was taken into custody late in the afternoon on Saturday, May 18, 1991, after two police officers saw a vehicle being driven in an erratic fashion by a person they did not believe to be the owner. They gave chase and the appellant abandoned the vehicle and fled on foot. When the police caught up with him, he showed indicia of impairment; a strong smell of alcohol on his breath, bloodshot eyes, intermittent and slurred speech and swaying from side to side. At approximately 3:40 p.m., Constable Young arrested the appellant for car theft and read him the following caution from a card:
. . . you have the right to retain and instruct counsel without delay. You may call any lawyer you wish. You have the right to apply for legal assistance without charge through the Provincial Legal Aid Program.
Constable Young further advised the appellant that a list of Legal Aid lawyers' home telephone numbers would be provided to him should he wish. The appellant indicated that he understood. Constable Young then read the appellant the breathalyser demand, and asked him if he would like to take the breathalyser test or first talk to a lawyer. The appellant indicated that he would take the test, but that first he would talk to a lawyer.
The appellant was taken to a private cubicle at the Halifax police station and provided with a telephone and a list of Legal Aid lawyers. As it was outside regular business hours, the list contained home phone numbers. Constable Young waited outside while the appellant attempted to make phone contact with a lawyer. Although he made approximately 15 calls in total, some with the assistance of Constable Young, the appellant was unsuccessful in reaching any of the 12 listed lawyers. Unknown to Constable Young at the time, or to the appellant, Legal Aid lawyers had advised the Attorney General just a few days earlier that all but one of them would no longer take calls outside of regular working hours (unless from existing clients). Therefore, at the time in question, the Halifax/Dartmouth area had no established duty counsel system whereby those arrested and detained could receive immediate, although temporary, free legal advice after regular business hours. This continued to be the case at the time of hearing this appeal.
Upon exhausting the list of names after approximately 37 minutes, Constable Young asked the appellant if he wished to call other lawyers and provided the appellant with a telephone book. The appellant, however, told the Constable that he could not afford legal fees. At 4:30 p.m., Constable Young contacted the duty prosecutor for the Crown and discussed the release of the appellant. At this point, Constable Young became aware that Legal Aid lawyers in the area were no longer taking telephone calls at home. Shortly thereafter the appellant agreed to take the breathalyser tests. A certificate indicating that the appellant's blood alcohol ratio exceeded allowable limits was later drawn up and served on the appellant.
After argument on the impaired driving charge under s. 253(a) of the Code, the trial judge dismissed this charge on the ground that he had a reasonable doubt. As for the breathalyser charge under s. 253(b) of the Code, counsel for the defence conceded that all the elements of the charge had been proved by the Crown, but argued that the appellant's s. 10 (b) Charter rights had been infringed and that the breathalyser certificate should be excluded under s. 24(2) of the Charter and the charge dismissed. The trial judge found that the appellant's s. 10 (b) rights had been violated and excluded the breathalyser evidence. He acquitted the appellant of impaired driving. The Crown's appeal was allowed by the Court of Appeal, which substituted a conviction under s. 253(b) of the Code and remitted the matter back to the trial court for sentencing.
II. Judgments Below
Ontario Court (Provincial Division) (Sherar Prov. Div. J.)
Sherar Prov. Div. J. reviewed the evidence and considered whether the unavailability of duty counsel violated the appellant's right to counsel under s. 10 (b) and whether evidence obtained in light of that violation should be excluded under s. 24(2) of the Charter . He set out the principles enunciated in R. v. Brydges, [1990], 1 S.C.R. 190, and held that, on the facts, the appellant exercised due diligence in attempting to obtain legal counsel. He noted that the police officer was not to be faulted personally for the failure to reach counsel. He found that in finally agreeing to take the breathalyser test, the appellant did not explicitly or impliedly waive his right to counsel.
Sherar Prov. Div. J. observed that:
Society, and the government in particular, has to make difficult decisions based upon the allocation of all finite resources.
However, as, Lamer, J. states at [S.C.R., p. 213] of Brydges:
"The province has the responsibility to take reasonable measures to see that a lawyer is made available to the eligible persons without delay."
At the date in question, it is apparent that the Attorney General's Department felt it was necessary and expedient to have a duty Crown Counsel available to advise the police and respond to the public interest in the administration of justice during non-business hours.
Obviously crime is committed outside of normal business hours and thus the detection and prevention of crime must be carried out at all hours of the day and night. Crime doesn't take time off. Thus, citizens are processed through the criminal justice system at all hours of the day and night. If a citizen has a right to consult legal counsel, that legal counsel should be available, as well, upon the detention of the citizen at any such time.
The cost of providing legal duty counsel for detained citizen[s] is not less important and worthwhile than the public cost of maintaining duty Crown Counsel or police for that matter.
Sherar Prov. Div. J. noted that in the aftermath of Brydges, the authorities had to advise of the existence of not only legal counsel, but also of Legal Aid. He noted:
If a citizen has the right to know that legal assistance free of charge is available, doesn't the citizen have the right to obtain such legal assistance. The legal assistance should be available without a means test upon initial detention of the accused who then, armed with the knowledge of his rights and responsibilities, can make a reasoned decision as to his subsequent actions, including the retention of counsel of his choice.
He concluded that the appellant's s. 10 (b) rights had been breached and that the breathalyser evidence should be excluded:
I find that [the appellant] had a right to Legal Aid counsel on the date in question, that right was denied him, not by the actions of the police officer in question, but the system for whom the police officer was employed. That system had a reasonable time to develop a process of duty counsel and was unable or unwilling to do so and thus [the appellant's] legal rights were violated.
In consequence of that violation self-incriminating evidence was obtained from [the appellant] which the Court determines should be excluded because to allow the evidence in this case, a certificate of breath analysis into evidence would bring the administration of justice into disrepute.
Court of Appeal (1992), 113 N.S.R. (2d) 156 (Freeman, Jones and Chipman JJ.A.)
Chipman J.A.
Writing for himself and Jones J.A., Chipman J.A. stated that in Brydges the majority of the Supreme Court of Canada stopped short of saying that if duty counsel are not available or cannot be found, the detainee has in all cases been effectively deprived of his right to counsel. He stated that Brydges is authority for the principle that, included in the reasonable opportunity which the police must give the detainee to exercise his right to counsel, is that the police should inform him of the existence (where it does exist) and availability of legal aid and duty counsel. Brydges is not, he said at p. 162, "authority for the proposition that the state must necessarily provide such counsel".
Chipman J.A. described the issue raised in this case, at p. 162, as being about "the consequence of the simple unavailability of counsel -- for whatever reason". He then noted at p. 162 that:
The [appellant] was arrested on a spring Saturday afternoon. As it happened, none of the 12 lawyers on the list provided by Constable Young could be reached. The [appellant] did not choose to try his luck with other lawyers to see if one might willingly give him some assistance on the telephone. It may well be that had he tried, he would have succeeded in contacting, within the two hours following his driving, somebody who would be willing to give him on the telephone the brief advice that he needed.
He suggested that there is some urgency involved in cases of breathalyser demands because the sample must be obtained within two hours in order to enable the Crown to have the benefit of the rebuttable presumption under s. 258(1)(d) of the Code (i.e., that readings taken during this period are proof of the blood alcohol level at the time the offence was committed).
Chipman J.A., therefore, concluded at p. 163 that the appellant had not been denied his s. 10 (b) rights:
Whenever counsel is not readily available, the question will arise whether, before questioning the detainee or attempting to get him to submit to any procedure which may incriminate him, there was afforded a reasonable opportunity to consult counsel. What is reasonable will depend on the circumstances. Where counsel cannot readily be obtained, it may simply be a matter of the police waiting until one can be found. This will often be the case where questioning is involved. Where, however, the breathalyser demand has been made, it is important that the Crown not lose the benefit of the presumption in s. 258(1)(d) of the Code.
It is not necessary here to pursue this avenue to its end. Constable Young had provided the list of lawyers with home telephone numbers. He afforded privacy and even assistance in making the calls. Constable Young went further and provided the telephone book so that the [appellant] could call any lawyer other than the listed Legal Aid lawyers. Constable Young had not at any time during all this process attempted to elicit evidence from the [appellant]. It was the [appellant] who terminated the proceedings by volunteering to take the test. [Emphasis in original.]
Chipman J.A. further held at p. 163 that in agreeing to take the breathalyser test, the appellant expressly waived his s. 10 (b) rights:
There was, to use the language of Lamer J., in Ross, [infra], at [S.C.R., p. 11] "a clear indication that he had changed his mind" about consulting counsel before taking the test. This may have been prompted by frustration at his inability to obtain counsel, but in view of the fact that he was told the purpose of the demand and the consequences of refusal, it would be difficult to conclude that the [appellant] was not aware of the consequences of what he was doing. There is no evidence that he was not so aware. It is clear that the [appellant] changed his mind about wanting to speak to counsel before he took the test. The waiver was explicit, but if it could be said to be implicit, the high standard referred to by Lamer, J., has been met.
Turning to s. 24(2) of the Charter , Chipman J.A. addressed the question of exclusion of evidence in the event that the trial judge was correct. He concluded at p. 166 that the fairness of the trial would not be affected by the admission of the evidence.
. . . while the breath sample is more correctly categorized as self-incriminating evidence than real evidence, it is to be distinguished from a confession which is truly a case of an accused being conscripted against himself and creating evidence which did not exist before and which he was not required to give. In the face of the very strong evidence of his impairment, Constable Young had reasonable grounds to demand the sample from the [appellant]. The [appellant] would in all probability be committing a criminal offence had he failed to provide [the sample]. He provided it pursuant to a statutory obligation. Had he received the advice of counsel he would have in all probability been advised to take the test in the circumstances of this case.
With respect to the seriousness of any breach, Chipman J.A. stated that the breach of Charter rights was technical in nature and that the conduct of the police had been beyond reproach. He added at p. 167 that the administration of justice would not be well served by the exclusion of the evidence: "Most reasonably dispassionate and fully informed persons would be appalled and dismayed at the exclusion of this evidence which so fully confirmed the officer's viva voce testimony of the [appellant's] impairment."
Freeman J.A. (concurring)
Upon his review of Brydges, supra, Freeman J.A. held that there was no constitutional right to state funded counsel. According to him, at p. 170, the right which courts have identified as applicable in the appellant's circumstances is the right to a "reasonable opportunity" to retain and instruct counsel. He found at p. 170 that, on the evidence, the police afforded the appellant a reasonable opportunity to consult counsel which "if vigorously pursued, might have resulted in contact with the one Legal Aid lawyer who was still available". He also noted that there was no evidence that a lawyer in private practice would refuse advice to a detained person who had no prospect of paying for it. Freeman J.A. stated that, in any event, the appellant voluntarily declined to take further advanta