Trask v. The Queen, [1985] 1 S.C.R. 655
Wilmour S. Trask Appellant;
and
Her Majesty The Queen Respondent.
File No: 17747.
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 newfoundland
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 ‑‑ Canadian Charter of Rights and Freedoms, s. 10 ‑‑ Criminal Code, s. 235(1).
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.
Cases Cited
R. v. Therens, [1985] l S.C.R. 613, followed; Chromiak v. The Queen, [1980] 1 S.C.R. 471, referred to.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 10, 24.
Criminal Code, R.S.C. 1970, c. C‑34, s. 235(1) [rep. & subs. by 1974‑75‑76, c. 93 s. 16].
APPEAL from a judgment of the Newfoundland Court of Appeal (1983), 6 C.C.C. (3d) 132, 150 D.L.R. (3d) 161, 21 M.V.R. 49, 42 Nfld. & P.E.I.R. 30, 122 A.P.R. 30, allowing the Crown's appeal by way of stated case from the accused's acquittal on a charge under s. 236 of the Criminal Code. Appeal allowed.
Wayne G. Dymond, for the appellant.
Thomas Eagan, for the respondent.
The following is the judgment delivered by
1. The Court‑‑This appeal raises the same issue as that considered by this Court in R. v. Therens, [1985] 1 S.C.R. 613, which was heard at the same time: whether 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 is detained within the meaning of s. 10 of the Canadian Charter of Rights and Freedoms and is therefore entitled to be informed of the right to retain and instruct counsel without delay. It also raises questions as to the available relief under s. 24 of the Charter if there has been an infringement or a denial of the right to counsel.
2. The appeal is by leave of this Court from the judgment of the Newfoundland Court of Appeal on May 12, 1983, 6 C.C.C. (3d) 132, 150 D.L.R. (3d) 161, 21 M.V.R. 49, 42 Nfld. & P.E.I.R. 30, 122 A.P.R. 30, allowing an appeal by way of stated case from the acquittal of the appellant by Provincial Court Judge O.M. Kennedy of the charge that the appellant
...on the 6th day of May, A.D. 1982 at or near the Town of Gander, in the Province of Newfoundland, did unlawfully drive a motor vehicle, having consumed alcohol in such a quantity that the proportion thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood contrary to section 236(1) of the Criminal Code of Canada.
3. On May 6, 1982 the appellant complied with a demand to accompany a constable to the RCMP detachment in Gander, Newfoundland, and to submit to a breathalyzer test, pursuant to s. 235(1) of the Criminal Code. The appellant was not informed of his right to retain and instruct counsel without delay.
4. At his trial the appellant applied, pursuant to s. 24 of the Charter, for the dismissal of the charge, and alternatively for the exclusion of the certificate of analysis of the breathalyzer test, on the ground that his right to counsel under s. 10 of the Charter had been infringed or denied. The trial judge held that the appellant had been detained within the meaning of s. 10 of the Charter and that there had therefore been an infringement or denial of his right to counsel. He dismissed the charge as the appropriate relief under s. 24 of the Charter. The trial judge expressed the opinion that the certificate of analysis could be excluded pursuant to either s. 24(1) or s. 24(2), but he did not dispose of the application on this basis.
5. In allowing the appeal and setting aside the acquittal, the Court of Appeal, relying on the judgment of this Court in Chromiak v. The Queen, [1980] 1 S.C.R. 471, held that the appellant had not been detained within the meaning of s. 10 of the Charter and that there had therefore not been an infringement or a denial of the right to counsel. The Court did not express an opinion as to whether, if there had been an infringement or a denial of the right to counsel, the charge could be dismissed pursuant to s. 24(1) of the Charter. It did, however, express the view that in any event the admission of the evidence provided by the breathalyzer test would not bring the administration of justice into disrepute so as to call for its exclusion pursuant to s. 24(2).
6. For the reasons given in the judgment of this Court in R. v. Therens, supra, we hold that as a result of the s. 235(1) demand the appellant was detained within the meaning of s. 10 of the Charter and that he was therefore denied the right to be informed of his right to retain and instruct counsel without delay. We do not find it necessary in this case to decide whether, in such circumstances, the dismissal of the charge is an available and appropriate remedy under s. 24 of the Charter. We are of the opinion, for the reasons given in R. v. Therens, that the evidence of the breathalyzer test must be excluded pursuant to s. 24(2) of the Charter because its admission in all circumstances of the case would bring the administration of justice into disrepute. We are further of the view that the remaining evidence in the record is clearly insufficient to establish the guilt of the appellant beyond a reasonable doubt and that for this reason the charge should be dismissed.
7. The appeal will be allowed, the judgment of the Court of Appeal will be set aside and the appellant's acquittal will be restored.
Appeal allowed.
Solicitors for the appellant: Mills, Dymond & Hussey, Clarenville.
Solicitor for the respondent: Thomas Eagan, Gander.