R. v. Therens

R. v. Therens
Collection
Supreme Court Judgments
Date
1985-05-23
Report
[1985] 1 SCR 613
Case number
17692
Judges
Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; McIntyre, William Rogers; Chouinard, Julien; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric
On appeal from
Saskatchewan
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 17692
Decision Content
R. v. Therens, [1985] 1 S.C.R. 613
Her Majesty The Queen Appellant;
and
Paul Mathew Therens Respondent;
and
The Attorney General of Canada, the Attorney General for Ontario and the Attorney General of Quebec Interveners.
File No.: 17692.
1984: June 21; 1985: May 23.
Present: Dickson C.J. and Ritchie*, Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson and Le Dain JJ.
*Ritchie J. took no part in the judgment.
on appeal from the court of appeal for saskatchewan
Constitutional law ‑‑ Charter of Rights ‑‑ Right to counsel ‑‑ Impaired driving ‑‑ Accused requested to accompany police officer for purposes of providing breath samples for analysis ‑‑ Whether accused detained ‑‑ Whether police required to inform accused of right to counsel ‑‑ Criminal Code, ss. 234.1(1) , 235(1) , (2) , 236(1) , 237 ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 10 .
Constitutional law ‑‑ Charter of Rights ‑‑Remedies‑‑Right to counsel infringed ‑‑ Impaired driving‑‑Evidence provided by breathalyzer test excluded pursuant to s. 24(2) of the Charter ‑‑ Canadian Charter of Rights and Freedoms, ss. 10 , 24(1) , (2) .
Criminal law ‑‑ Charter of Rights ‑‑ Impaired driving ‑‑ Right to counsel infringed ‑‑ Evidence provided by breathalyzer test excluded ‑‑ Criminal Code, ss. 234.1(1) , 235(1) , (2) , 236(1) , 237 ‑‑ Canadian Charter of Rights and Freedoms, ss. 10 , 24 .
Respondent lost control of his motor vehicle and it collided with a tree. A police officer demanded respondent provide samples of his breath for analysis pursuant to s. 235(1) of the Criminal Code . Respondent accompanied the officer to the police station, complied with the demand, and was subsequently charged with driving a motor vehicle while having an excessive blood alcohol level contrary to s. 236(1) of the Code. At trial, respondent's counsel objected to the admission of the certificate of analysis and applied, pursuant to s. 24 of the Charter , for its exclusion on the ground that he had been denied the right, guaranteed by s. 10 (b) of the Charter , to be informed, upon arrest or detention, of his right to retain and instruct counsel without delay. The trial judge allowed the application and dismissed the charge for lack of other evidence of the respondent's blood alcohol level. The judge held that the respondent had been detained within the meaning of s. 10 of the Charter , that the court was empowered by s. 24(1) thereof to exclude the certificate if it considered such exclusion to be appropriate and just in the circumstances, and that it was not confined to the test laid down in s. 24(2) . The majority of the Court of Appeal upheld the decision.
Held (McIntyre and Le Dain JJ. dissenting): The appeal should be dismissed.
1) Detention and violation of respondent’s right to counsel
Per Dickson C.J. and McIntyre, Lamer and Le Dain JJ.: Respondent's rights under s. 10 (b) of the Charter were violated. A person who complied with a demand, pursuant to s. 235(1) of the Criminal Code , to accompany a police officer to a police station and to submit to a breathalyser test is "detained" within the meaning of s. 10 of the Charter and that person is therefore entitled to be informed of his right to retain and instruct counsel without delay.
The word "detention" in s. 10 is directed to a restraint of liberty of varying duration other than arrest in which a person may reasonably require the assistance of counsel and might be prevented or impeded from retaining and instructing counsel without delay but for the constitutional guarantee. In addition to the case of deprivation of liberty by physical constraint, there is also a "detention" within s. 10 when a police officer assumes control over the movement of a person by a demand or direction which may have significant legal consequence and which prevents or impedes access to counsel. There must, however, be some form of compulsion or coercion. Any criminal liability for failure to comply with a demand or direction of a police officer is sufficient to make compliance involuntary. Under s. 235(2), a refusal to comply with a s. 235(1) demand without reasonable excuse is a criminal offence.
Notwithstanding any similarity to s. 10 of the Charter , the meaning of the word "detained" in s. 2(c) of the Canadian Bill of Rights as adopted by this Court in Chromiak was not determinative of the issue. The premise that the framers of the Charter must be presumed to have intended that the words used by it should be given the meaning which had been given to them by judicial decisions at the time the Charter was enacted is not a reliable guide to its interpretation and application. By its very nature, a constitutional charter of rights and freedoms must use general language which is capable of development and adaptation by the court. It is the purpose of the section that must be considered in determining the meaning of the word "detention" in s. 10 .
Per Beetz, Estey, Chouinard and Wilson JJ.: When the police officers administered the breathalyzer test under s. 235(1) of the Code, respondent was detained within the meaning of s. 10 of the Charter and his rights under that section were violated. The peace officers did not accord him the right "without delay" to retain and instruct counsel, nor did they inform him of that right.
2) Whether respondent’s right to counsel subject, by virtue of s. 235(1) of the Code, to a limit prescribed by law
Per Beetz, Estey, Chouinard and Wilson JJ.: The Court is not concerned with s. 1 of the Charter because Parliament, in s. 235(1) of the Code, has not purported to limit respondent's right under s. 10 (b) of the Charter . Section 1 subjects all Charter rights, including s. 10 , "only to such reasonable limits prescribed by law...." Here the limit on the respondent's right to consult counsel was imposed by the conduct of the police officers and not by Parliament.
Per Dickson C.J. and McIntyre and Le Dain JJ.: Section 235(1) of the Code does not purport to place a limitation on the right to counsel. A s. 235(1) demand must be made "forthwith or as soon as practicable" and the person to whom the demand is made must provide a breath sample "then or as soon thereafter as is practicable". The two‑hour operating requirement imposed by s. 237(1)(b)(ii) does not preclude any contact at all with counsel prior to the breathalyser test. When detained because of a s. 235(1) demand, the right to be informed of the right to retain and instruct counsel without delay is not, therefore, subject to a limit prescribed by law within the meaning of s. 1 of the Charter .
Per Lamer J.: The violation of the respondent's rights is not the result of the operation of the law but of the police action. Therefore, there is no need to consider in this case whether, under s. 1 of the Charter , the "breathalyzer scheme" set up through s. 235(1) and s. 237 of the Criminal Code is a reasonable limit to one's rights under the Charter .
3) Whether the breathalyzer evidence should be excluded
Per Beetz, Estey, Chouinard and Wilson JJ.: The question of the admissibility of the evidence provided by the breathalyzer test must be determined by s. 24(2) of the Charter and not by s. 24(1) . Subsection (2) alone empowers a court to exclude evidence where such evidence "was obtained in a manner that infringed...rights...guaranteed by [the] Charter ,...if it is established that...the admission of it...would bring the administration of justice into disrepute". Here, the evidence must undoubtedly be excluded. The police have flagrantly violated a Charter right without statutory authority. To admit this evidence under these circumstances would clearly "bring the administration of justice into disrepute".
Per Dickson C.J. and Lamer J.: The breathalyzer evidence tendered in this case was obtained in a manner which infringed and denied the respondent's rights under s. 10 (b) of the Charter . The simple fact, however, that the infringement of the right preceded the obtaining of the evidence is not sufficient to meet that requirement. Indeed, if there is no relationship other than a temporal one, the evidence was not "obtained in a manner that infringed" the Charter . Where a detainee is required to provide evidence which may be incriminating and where refusal to comply is punishable as a criminal offence, as is the case under s. 235 of the Code, s. 10(b) imposes a duty not to call upon the detainee to provide that evidence without first informing him of his s. 10 (b) rights and providing him with a reasonable opportunity and time to retain and instruct counsel. Failure to abide by that duty will lead to the obtainment of evidence in a manner which infringes or denies the detainee's s. 10 (b) rights. To admit the breathalyzer evidence in these circumstances would bring the administration of justice into disrepute. Therefore, since the evidence may be properly excluded by the operation of s. 24(2) of the Charter , there is no need to express any view on the availability of the exclusion of evidence as an appropriate and just remedy under s. 24(1) .
Per McIntyre and Le Dain JJ., dissenting: Although respondent's right under s. 10 of the Charter was infringed, the evidence provided by the breathalyser test should not have been excluded. The Court of Appeal erred in affirming the exclusion of the evidence on the ground that it was appropriate and just in the circumstances, within the meaning of s. 24(1) of the Charter . It is clear that in making explicit provision for the remedy of exclusion of evidence in s. 24(2) , following the general terms of s. 24(1) , the framers of the Charter intended that this particular remedy should be governed entirely by the terms of s. 24(2) . The evidence represented by the certificate of analysis was obtained in a manner infringing respondent's right to counsel and met the first requirement of that subsection, but its admission in the circumstances of this case would not bring the administration of justice into disrepute. The right to counsel is of fundamental importance and its denial in a criminal law context must prima facie discredit the administration of justice. However, in view of the judgment of this Court in Chromiak, the police officer was entitled to assume in good faith that the respondent did not have such a right on a demand under s. 235 of the Criminal Code . Because of this reliance in good faith, the admission of the evidence of the breathalyzer test here would not bring the administration of justice into disrepute.
Per McIntyre J., dissenting: The exclusion of the breathalyzer evidence solely on a finding that a Charter right was breached in obtaining it would be to disregard the provisions of s. 24(2) of the Charter . The exclusion of such evidence is not automatic. It must be excluded only where it is established that its admission, having regard to all the circumstances, would bring the administration of justice into disrepute. That was not established here.
Cases Cited
Chromiak v. The Queen, [1980] 1 S.C.R. 471, aff'g (1979), 46 C.C.C. (2d) 310, considered; R. v. Currie (1983), 4 C.C.C. (3d) 217; R. v. Trask (1983), 6 C.C.C. (3d) 132; Rahn v. The Queen (1984), 11 C.C.C. (3d) 152; R. v. Simmons (1984), 11 C.C.C. (3d) 193; R. v. Talbourdet (1984), 12 C.C.C. (3d) 173, considered; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; Hogan v. The Queen, [1975] 2 S.C.R. 574; Rothman v. The Queen, [1981] 1 S.C.R. 640; R. v. Collins (1983), 5 C.C.C. (3d) 141; R. v. Cohen (1983), 5 C.C.C. (3d) 156; R. v. Stevens (1983), 7 C.C.C. (3d) 260; R. v. Chapin (1983), 7 C.C.C. (3d) 538; R. v. Manninen (1983), 8 C.C.C. (3d) 193; Minister of Home Affairs v. Fisher, [1980] A.C. 319; Brownridge v. The Queen, [1972] S.C.R. 926; Miranda v. Arizona, 384 U.S. 436 (1966), referred to.
Statutes and Regulations Cited
Canadian Bill of Rights, R.S.C. 1970, App. III, s. 2(c).
Canadian Charter of Rights and Freedoms, ss. 1 , 10 , 24 .
Constitution Act, 1982, s. 52 .
Criminal Code, R.S.C. 1970, c. C‑34, ss. 234.1(1) [added 1974‑75‑76, c. 93, s. 15], 235 [rep. & subs. by 1974‑75‑76, c. 93, s. 16], 236 [rep. & subs. by 1974‑75‑76, c. 93, s. 17], 237(1)(c) [rep. & subs. by 1974‑75‑76, c. 93, s. 18].
Authors Cited
Dworkin, R. Taking Rights Seriously, London, Duckworth, 1977.
Fleming, J. G. The Law of Torts, 6th ed., Sydney, Law Book Company Ltd., 1983.
Gibson D. "Determining Disrepute: Opinion Polls and the Canadian Charter of Rights and Freedoms " (1983), 61 Can. Bar Rev. 377.
APPEAL from a judgment of the Saskatchewan Court of Appeal (1983), 5 C.C.C. (3d) 409, 148 D.L.R. (3d) 672, 23 Sask. R. 81, 33 C.R. (3d) 204, 5 C.R.R. 157, 20 M.V.R. 8, [1983] 4 W.W.R. 385, dismissing an appeal by the Crown by way of stated case from the accused's acquittal by Muir Prov. Ct. J. (1982), 70 C.C.C. (2d) 468, 16 M.V.R. 285, on a charge under s. 236(1) of the Criminal Code . Appeal dismissed, McIntyre and Le Dain JJ. dissenting.
D. Murray Brown, James MacPherson and Andrew Petter, for the appellant.
Robert Skinner and Vikas Khaladkar, for the respondent.
S. R. Fainstein, for the intervener the Attorney General of Canada.
Edward Then, Q.C., for the intervener the Attorney General for Ontario.
Jean‑François Dionne, for the intervener the Attorney General of Quebec.
The following are the reasons delivered by
1. The Chief Justice‑‑I agree with Le Dain J., for the reasons he has given in his judgment, that the respondent was detained within the meaning of s. 10 of the Canadian Charter of Rights and Freedoms , and that his rights under para. (b) were violated. I also agree with Le Dain J. that s. 235(1) does not create a limit, prescribed by law, under s. 1 of the Charter , on a detained person's right to be informed of the right to retain and instruct counsel. Subsection 235(1) does not expressly or by necessary implication compel the police to deny a detained person's right to be informed of his s. 10 (b) rights.
2. I agree with Lamer J., for the reasons he has given, that the breathalyzer evidence tendered in this case was obtained in a manner which infringed and denied the respondent's rights under s. 10 (b) and that it has been established that, having regard to all the circumstances, the admission of this evidence in the proceedings would bring the administration of justice into disrepute. Accordingly, the certificate of analysis prepared pursuant to s. 237 of the Criminal Code should be excluded under s. 24(2) of the Charter .
3. Since this evidence may properly be excluded by the operation of s. 24(2) of the Charter , I do not wish to be taken as expressing any view on the availability of the exclusion of evidence as an appropriate and just remedy under s. 24(1) of the Charter .
4. I would accordingly dismiss this appeal.
The reasons of Beetz, Estey, Chouinard and Wilson JJ. were delivered by
5. Estey J.‑‑I have had the benefit of reading the judgment of my colleague Le Dain J. in this appeal and while I am in agreement, as shall be seen below, with much of what has been there written, I am in respectful disagreement as to the disposition. I would dismiss the appeal for these reasons.
6. I am in agreement that the respondent‑defendant was "detained" within the meaning of s. 10 of the Canadian Charter of Rights and Freedoms when the police officers administered the breathalyzer test under s. 235 of the Criminal Code . That section of the Criminal Code clearly anticipates a delay in some circumstances for the administration of this test. This is in contrast to s. 234.1(1) of the Code. In the former section the Code provides that the peace officer may "by demand made ... forthwith or as soon as practicable" require such person to provide samples "then or as soon thereafter as is practicable". Section 234.1(1) requires that the person driving the motor vehicle "provide forthwith such a sample of his breath".
7. Section 10 (b) of the Charter provides:
10. Everyone has the right on arrest or detention
...
(b) to retain and instruct counsel without delay and to be informed of that right; ...
Neither of the two rights assured in s. 10 (b) of the Charter were honoured by the police authority. The peace officers did not accord to the respondent the right "without delay" to retain and instruct counsel, nor did they inform the respondent of that right. There is nothing in this record to suggest that the officers would have been unable to afford the respondent a reasonable time to contact his counsel.
8. The provisions of s. 235 cannot constitute a cause for failure to assure these rights. As noted above, action under s. 235 by the respondent need only be taken "as soon as practicable". We are not here faced with a proceeding under s. 234.1 which may raise different issues. Neither are we here, on this record, required to determine the more difficult question of what the peace officer may do pursuant to s. 235 of the Code after s. 10 (b) of the Charter has been accommodated. Furthermore, because s. 24(2) of the Charter , as we shall see, operates to exclude the evidence thereby obtained, s. 24(1) of the Charter need not be invoked.
9. I am therefore in respectful agreement with my colleague that the rights of the respondent under s. 10 (b) have been violated.
10. Because Parliament has not purported to place a limitation on the right of the respondent under s. 10 (b) of the Charter in s. 235(1) , the Court is not here concerned with s. 1 of the Charter . That section subjects all Charter rights, including s. 10 , "only to such reasonable limits prescribed by law ...." Here Parliament has not purported to prescribe any such limit and hence s. 1 of the Charter does not come into play. The limit on the respondent's right to consult counsel was imposed by the conduct of the police officers and not by Parliament.
11. This brings one to the core issue in this appeal, namely the admissibility of the evidence as to the alcohol content in the respondent's blood as determined by the test taken under s. 235(1) of the Code. The admissibility of this evidence in my view, and again I am in respectful agreement with my colleague Le Dain J., falls to be determined by s. 24(2) of the Charter and not by reason of subs. (1) of that section, as was the view of the Court of Appeal below. Subsection (2) alone in the Charter empowers a court to exclude evidence where "that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter ...." Subsection (2) goes on to direct, in mandatory terms:
... the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
(Emphasis added.)
Here the police authority has flagrantly violated a Charter right without any statutory authority for so doing. Such an overt violation as occurred here must, in my view, result in the rejection of the evidence thereby obtained. We are here dealing only with direct evidence or evidence thereby obtained directly and I leave to another day any consideration of evidence thereby indirectly obtained. To do otherwise than reject this evidence on the facts and circumstances in this appeal would be to invite police officers to disregard Charter rights of the citizens and to do so with an assurance of impunity. If s. 10(b) of the Charter can be offended without any statutory authority for the police conduct here in question and without the loss of admissibility of evidence obtained by such a breach then s. 10 (b) would be stripped of any meaning and would have no place in the catalogue of "legal rights" found in the Charter .
12. The violation by the police authority of a fundamental Charter right, which transpired here, will render this evidence inadmissible. Admitting this evidence under these circumstances would clearly "bring the administration of justice into disrepute". I am strongly of the view that it would be most improvident for this Court to expatiate, in these early days of life with the Charter , upon the meaning of the expression `administration of justice' and particularly its outer limits. There will no doubt be, over the years to come, a gradual build‑up in delineation and definition of the words used in the Charter in s. 24(2) .
13. For these reasons, I would therefore dismiss this appeal.
The following are the reasons delivered by
14. McIntyre J. (dissenting)‑‑I am in full agreement with the reasons for judgment of Le Dain J. I would add that to exclude the questioned evidence in this case solely on a finding that a Charter right was breached in obtaining it would be to disregard the provisions of s. 24(2) of the Canadian Charter of Rights and Freedoms . In my view, this section must have its effect. The exclusion of such evidence is not automatic. It must be excluded only where it is established that its admission, having regard to all the circumstances, would bring the administration of justice into disrepute. In my view, that is not established here. The exclusion of the evidence in the circumstances of this case would itself go far to bring the administration of justice into disrepute.
The following are the reasons delivered by
15. Lamer J.‑‑The issues that require determination in this case are the following: was the respondent detained, within the meaning of s. 10 (b) of the Canadian Charter of Rights and Freedoms ; was there a violation of his rights under s. 10 (b); if so, is the violation in this case a reasonable limit prescribed by law; if not, what is the proper remedy and disposition of this case.
16. I have had the advantage of reading the judgments of my colleagues Estey and Le Dain JJ.
17. I agree with my brother Le Dain for the reasons set out in his judgment that the respondent was detained. I also agree with Le Dain J. that there was here a violation of the respondent's rights under s. 10 (b). Clearly he was not, as a detainee, in any way informed of his right to retain and instruct counsel without delay. As set out in the reasons of Estey J., the violation of the respondent's rights is not the result of the operation of law but of the police action and there is no need, in my view, to consider in this case whether under s. 1 of the Charter the "breathalyzer scheme" set up through s. 235(1) and s. 237 of the Criminal Code is a reasonable limit to one's rights under the Charter . That issue will certainly arise in some other case given the content which I think must be given to s. 10 (b).
18. At first blush, there would appear not to be any need to expand upon the content of s. 10 (b) given that the facts of this case indicate a clear violation of the section whatever be that content. However, in order to meet the requirements for exclusion of evidence under s. 24(2) there must not only exist a violation of a Charter right, but there must also be, as was said by Le Dain J., "some connection or relationship between the infringement or denial of the right or freedom in question and the obtaining of the evidence the exclusion of which is sought by the application".
19. With respect, however, I cannot subscribe to the proposition later advanced by Le Dain J. that this requirement is met by the simple fact that the infringement or denial of the right has preceded the obtaining of the evidence. Indeed, if there is no relationship other than a temporal one, the evidence was not "obtained in a manner that infringed" the Charter .
20. Thus, when one addresses the consequences that should flow under s. 24 as a result of the violation in this case, one has to go back and give some content to s. 10 (b) if one is to consider whether, under s. 24(2) , the "breathalyzer evidence" was obtained in a manner that infringed or denied that right. Indeed, if a literal construction is given to s. 10 (b), there is then no nexus whatsoever between the requirement of the taking of breath samples on the one hand and, on the other hand, informing the detainee of his rights and not preventing him from exercising them.
21. I do not want to be taken here as giving an exhaustive definition of the s. 10(b) rights and will limit my comments in that respect to what is strictly required for the disposition of this case. In my view, s. 10(b) requires at least that the authorities inform the detainee of his rights, not prevent him in any way from exercising them and, where a detainee is required to provide evidence which may be incriminating and refusal to comply is punishable as a criminal offence, as is the case under s. 235 of the Code, s. 10(b) also imposes a duty not to call upon the detainee to provide that evidence without first informing him of his s. 10(b) rights and providing him with a reasonable opportunity and time to retain and instruct counsel. Failure to abide by that duty will lead to the obtainment of evidence in a manner which infringes or denies the detainee's s. 10(b) rights. Short of that, s. 10(b) would be a near empty right, as remedies could seldom affect the admissibility of evidence obtained through the accused.
22. Whether s. 10(b) extends any further, so as to encompass, for example, the principle of Miranda v. Arizona, 384 U.S. 436 (1966), and apply to matters such as interrogation and police line‑ups, need not be decided in this case and I shall refrain from so doing.
23. Whether s. 235(1) of the Code in general, and its two hour limitation in particular, are in conflict with s. 10(b), especially that aspect of being given a reasonable time to speak to counsel, does not arise in this case and I would choose not to address that question for the following reason. Were we to find that s. 235(1) does impose a limit on the amount of time the peace officer can give a detainee to exercise his rights under s. 10(b) before requiring a breath sample, we would in my view be faced with a very incomplete file when called upon to determine whether the limitation is one that is reasonable under the test set out in s. 1 of the Charter . I think that question, if to be addressed, will be more properly considered in a case where there will have been adduced evidence in support of the demonstration the authorities have the burden to make under s. 1 . As an example, why is there a two hour limit? Is it for scientific reasons related to reliability? I suspect so but do not find any evidence in the record.
24. In this case, the test was required by the peace officer and then given to the detainee prior to his being informed of his right to counsel. By so doing, the police officer violated the accused's rights under s. 10(b) and obtained the "breathalyzer evidence" in a manner which infringed and denied those rights.
25. I would decide the disposition of this case as does Estey J., and for the reasons he sets out in his judgment. Indeed, I am of the view that admitting the breathalyzer evidence in this case would bring the administration of justice into disrepute. Having so concluded, I need not express any views as regards the exclusion of evidence under s. 24(1) .
26. I would therefore dismiss the appeal.
The following are the reasons delivered by
27. Le Dain J. (dissenting)‑‑This appeal raises the following questions on which there have been differing opinions in provincial courts of appeal:
1. Does a person upon whom a demand is made pursuant to s. 235(1) of the Criminal Code to accompany a police officer to a police station and to submit to a breathalyzer test have the right to counsel guaranteed by s. 10 of the Canadian Charter of Rights and Freedoms ?
2. If there has been an infringement or denial of the right to counsel, can the evidence obtained by the breathalyzer test be excluded pursuant to s. 24(1) of the Charter on the ground that its exclusion is considered by the court to be appropriate and just in the circumstances or may it be excluded pursuant only to s. 24(2) on the ground that it was obtained in a manner that infringed or denied the right to counsel and that, having regard to all the circumstances, its admission would bring the administration of justice into disrepute?
3. If the evidence was obtained in a manner that infringed or denied the right to counsel, and its exclusion is to be governed exclusively by the test in s. 24(2) of the Charter , what is the meaning and application to be given to that test in the circumstances of the present case?
28. Section 235(1) of the Criminal Code and ss. 10 and 24 of the Charter are as follows:
235. (1) Where a peace officer on reasonable and probable grounds believes that a person is committing, or at any time within the preceding two hours has committed, an offence under section 234 or 236, he may, by demand made to that person forthwith or as soon as practicable, require him to provide then or as soon thereafter as is practicable such samples of his breath as in the opinion of a qualified technician referred to in subsection 237(6) are necessary to enable a proper analysis to be made in order to determine the proportion, if any, of alcohol in his blood, and to accompany the peace officer for the purpose of enabling such samples to be taken.
10. Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
I
29. The appeal is by leave of this Court from the judgment of the Saskatchewan Court of Appeal on April 15, 1983, 5 C.C.C. (3d) 409, dismissing an appeal by way of stated case from a judgment of Judge Alastair J. Muir of the Provincial Court of Saskatchewan on July 30, 1982, 70 C.C.C. (2d) 468, which dismissed a charge that the respondent "on or about the 25th of April A.D. 1982 at the City of Moose Jaw, in the Province of Saskatchewan, did unlawfully drive a motor vehicle while having consumed alcohol in such quantity that the proportion thereof in his blood exceeds 80 milligrams of alcohol in 100 millilitres of blood, contrary to Section 236(1) of the Criminal Code ".
30. The facts found by Muir J. at the trial of the respondent are set out in the stated case as follows:
(a) On April 24th, 1982, at approximately 10:30 P.M., the accused was operating a motor vehicle in a street in the City of Moose Jaw at which time he lost control of the vehicle and it collided with a tree at the side of the street.
(b) Very shortly thereafter, Constable Measner of the Moose Jaw City Police Department arrived at the scene and conducted an investigation. Constable Measner, having reasonable and probable grounds for doing so, made a demand on the accused under the provisions of Section 235(1) of the Criminal Code requiring the accused to accompany him for the purpose of obtaining samples of the accused's breath for analysis. The accused accompanied the officer and supplied samples of his breath in compliance with the demand.
(c) The accused was at no time informed of any rights to retain and instruct counsel.
(d) The accused was co‑operative throughout the investigation and was at no time placed under arrest.
31. In the reasons which he delivered on behalf of the majority for the Saskatchewan Court of Appeal, Tallis J.A said at p. 420: "It is common ground between counsel that after a demand was made under s. 235(1) of the Criminal Code , the respondent accompanied the officer in a patrol car to the City Police Station in Moose Jaw, where the breathalyzer tests were subsequently conducted." There was no evidence that the accused, of his own knowledge, was aware of his right to retain and instruct counsel.
32. At the trial of the respondent the Crown sought to tender in evidence the certificate of analysis prepared, pursuant to s. 237 of the Criminal Code , by the technician who conducted the breathalyzer test. Counsel for the respondent objected to the admission of the certificate and applied, pursuant to s. 24 of the Charter , for its exclusion on the ground that the respondent has been denied the right, guaranteed by s. 10 of the Charter , to be informed, upon arrest or detention, of his right to retain and instruct counsel without delay. The trial judge allowed the application, ordered the exclusion of the certificate, and for lack of other evidence of the respondent's blood alcohol level dismissed the charge. He held that the respondent had been detained within the meaning of s. 10 of the Charter and that the court was empowered by s. 24(1) thereof to exclude the certificate if it considered such exclusion to be appropriate and just in the circumstances, and that it was not confined to the test laid down in s. 24(2) ‑‑that the admission of the evidence would bring the administration of justice into disrepute.
33. The questions put to the Court of Appeal in the stated case were as follows:
(1) Did the Court err in law in holding that the accused person, Paul Mathew Therens, had been detained within the meaning of Section 10 of the Canadian Charter of Rights and Freedoms ?
(2) Did the court err in law in holding that it had a power to exclude evidence under subsection (1) of Section 24 of the Canadian Charter of Rights and Freedoms whether or not admitting the evidence in question would bring the administration of justice into disrepute?
(3) Did the court err in law in holding that it was just and appropriate in the circumstances of this case to exclude from evidence the Certificate of Analyses tendered by the prosecution?
34. At the hearing of the appeal the third question was abandoned by counsel for the Crown on the ground that it did not involve a question of law alone. A majority of the Saskatchewan Court of Appeal answered the first two questions in the negative and dismissed the appeal. Tallis J.A., with whom Bayda C.J.S. and Hall and Cameron JJ.A. concurred, held that the restraint of the respondent's liberty effected by the demand pursuant to s. 235(1) of the Criminal Code amounted to a detention within the meaning of s. 10 of the Charter and that accordingly there had been an infringement or a denial of the respondent's right to be informed of his right to retain and instruct counsel without delay; and further, that the certificate of analysis could be excluded from the evidence pursuant to s. 24(1) of the Charter , notwithstanding the terms of s. 24(2) , which refer expressly to the exclusion of evidence obtained in a manner that infringes or denies any right or freedom guaranteed by the Charter . Bayda C.J.S. wrote a separate concurring opinion with reference to the power to exclude evidence under s. 24(2) . Brownridge J.A., dissenting, held that there had not been a detention within the meaning of s. 10 of the Charter , but that in any event the exclusion of evidence as a remedy under s. 24 was governed exclusively by the terms of subs. (2) thereof.
II
35. In both the trial court and the Court of Appeal the issue as to whether there had been a detention turned essentially, as it has in the judgments of other courts of appeal, on the effect to be given to the decision of this Court in Chromiak v. The Queen, [1980] 1 S.C.R. 471, which dealt with a demand under s. 234.1(1) of the Criminal Code to provide a sample of breath into a roadside screening device and with the right to counsel guaranteed by s. 2(c) of the Canadian Bill of Rights, R.S.C. 1970, App. III. These provisions are as follows:
234.1 (1) Where a peace officer reasonably suspects that a person who is driving a motor vehicle or who has the care or control of a motor vehicle, whether it is in motion or not, has alcohol in his body, he may, by demand made to that person, require him to provide forthwith such a sample of his breath as in the opinion of the peace officer is necessary to enable a proper analysis of his breath to be made by means of an approved road‑side screening device and, where necessary, to accompany the peace officer for the purpose of enabling such a sample of his breath to be taken.
2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to
...
(c) deprive a person who has been arrested or detained
(i) of the right to be informed promptly of the reason for his arrest or detention,
(ii) of the right to retain and instruct counsel without delay, or
(iii) of the remedy by way of habeas corpus for the determination of the validity of his detention and for his release if the detention is now lawful;
36. In Chromiak this Court unanimously held that a person who complied with a demand pursuant to s. 234.1(1) to accompany a police officer and submit to a roadside breath test was not detained within the meaning of s. 2(c) of the Canadian Bill of Rights. The meaning of "detained" and "detention" adopted by Ritchie J., who delivered the judgment of the Court, is to be found in the following passages of his judgment at pp. 478‑79:
It appears to me to be obvious that the word "detention" does not necessarily include arrest, but the words "detain" and "detention" as they are used in s. 2(c) of the Bill of Rights, in my opinion, connote some form of compulsory restraint and I think that the language of s. 2(c)(iii) which guarantees to a person "the remedy of habeas corpus for the determination of the validity of his detention and for his release if the detention is not lawful", clearly contemplates that any person "detained" within the meaning of the section is one who has been detained by due process of law. This construction is supported by reference to ss. 28(2) (b), 30 , 136 (a), 248 and 250 of the Criminal Code where the words "to detain" are consistently used in association with actual physical restraint.
I agree with the Court of Appeal that the following observations made by Pigeon J. in the Brownridge case are pertinent to s. 234.1(1) and to the facts disclosed in this case. Notwithstanding the fact that Mr. Justice Pigeon spoke in the course of a dissenting opinion, I do not think that this statement is in any way in variance to the principle to which I have just referred. Mr. Justice Pigeon said, at pp. 943 and 944:
The legal situation of a person who, on request, accompanies a peace officer for the purpose of having a breath test taken is not different from that of a driver who is required to allow his brakes to be inspected or to proceed to a weighing machine under s. 39(6) or s. 78(3) of the Highway Traffic Act, R.S.O. 1970, c. 202. Such a person is under a duty to submit to the test. If he goes away, or attempts to go away, to avoid the test, he may be arrested an