2003 MBCA 43, 2003 MBCA 43

IN THE COURT OF APPEAL OF MANITOBA Coram: Philp, Kroft and Freedman JJ.A. B E T W E E N : HER MAJESTY THE QUEEN ) E. Szach ) for the Appellant Appellant ) ) S. E. Pinx, Q.C. and ) S. A. Inness - and - ) for the Respondent ) ) Appeal heard: CHRISTOPHER ORBANSKI ) September 25, 2002 ) (Accused) Respondent ) Judgment delivered: ) March 31, 2003 PHILP J.A. THE ISSUE 1 Is a driver who has been stopped by a police officer entitled to his right under s. 10(

b) of the Canadian Charter of Rights and Freedoms (the Charter ) to retain and instruct counsel without delay and to be informed of that right before being requested to undertake roadside sobriety or physical coordination tests to determine his level of sobriety? That is a question that has troubled courts in this province and across the country. It comes to this court on the Crown’s appeal pursuant to s. 830 of the Criminal Code (the Code ) from the judgment of the trial judge, Guy P.J., who determined that neither statute nor the common law prescribes a limit to the right to counsel in such circumstances. 2 The issue engages the

interpretation the courts have given to the drinking and driving provisions of the Code and provincial motor vehicle legislation and regulations and to police powers at common law and conferred by statute. At the heart of the issue is the balance to be struck between legislation directed at highway safety and the ever-increasing number of deaths and serious injuries that are the result of impaired driving, on the one hand, and the rights and liberties of the individual motorist, on the other.

THE FACTS 3 At about 3:21 a.m. on August 30, 1998, R.C.M.P. officers patrolling in the R.M. of Gimli observed a vehicle proceed through a stop sign without stopping, make “a wide left turn” onto Highway No. 8 and then proceed “onto the shoulder and then back onto the regular lane of traffic heading southbound” on the highway. The officers followed the vehicle for approximately three-quarters of a mile as it swerved back and forth. They activated their emergency lights and stopped the vehicle. Cst. Sutherland approached the driver’s side of the vehicle and identified himself to the sole occupant, the accused.

He could smell the odour of liquor through the open window, and it seemed to him that it came from the accused’s breath. The accused’s eyes were “glossy” [ sic ]. He asked the accused if he had been drinking, and he replied, “I had one beer tonight at two o’clock.” 4 The accused was not asked to provide a sample of his breath for analysis by means of an approved screening device (the A.L.E.R.T. test). Cst. Sutherland could not recall whether the equipment for an A.L.E.R.T. test was available in the police vehicle that night. 5 Instead, Cst.

Sutherland asked the accused to step out of his vehicle and perform some sobriety tests. He informed him that the tests were voluntary and that he did not have to perform them if he did not want to. He also informed the accused that he could contact a lawyer before performing the tests. His recollection was that he offered the accused the cell phone he had with him for that purpose. Cst. Sutherland, however, did not read from the standard Charter warning or inform the accused of the availability of duty

counsel and legal aid. 6 The Crown concedes on this appeal that the right to counsel information provided to the accused at the roadside “did not meet the informational component mandated by the Supreme Court of Canada.” See R. v. Brydges [1] . The Crown concedes, as well, “that the Accused was detained at the roadside.” 7 The accused declined to contact a lawyer and agreed to perform the sobriety tests. He failed to perform successfully the three tests he undertook: reciting the alphabet; walking in a straight line heel to toe while counting to ten; and looking at Cst.

Sutherland’s finger as he moved it in front of him. At that point, Cst. Sutherland “was confident that in my opinion that he was impaired by alcohol” and arrested him for impaired driving. 8 Cst. Sutherland testified that he had requested the sobriety tests “in order that I could determine [the accused’s] level of sobriety.” On cross-examination, he said that his intention was “not simply to determine sobriety”; it was “[t]o further my opinion of his level of sobriety.” However, the opinion Cst.

Sutherland had of the accused’s level of sobriety before the sobriety tests were performed was not expressed in his testimony. 9 In my view, it is arguable that, viewed objectively, reasonable and probable grounds existed for Cst. Sutherland to make a breathalyzer demand without the results of the sobriety tests. However, s. 254(3) of the Code requires, as well, that the police officer must subjectively have an honest belief that a suspect has committed the offence. See R. v. Bernshaw [2] , at para. 48 . Whether or not a police officer has that belief “must be based on the circumstances of the case.

It is, therefore, essentially a question of fact and not one of pure law”: Bernshaw , at para. 46 . 10 On this appeal taken pursuant to s. 830 of the Code , the court is bound by the trial judge’s specific finding of fact that “[w]ithout the evidence of the sobriety tests the Crown cannot establish that the officer had reasonable and probable grounds for the subsequent brealthalyzer [ sic ] demand given the accused” (at para. 83). 11 The police officers took the accused to the Gimli R.C.M.P. detachment.

The standard Charter right to counsel information, the police warning and the breathalyzer demand were read to him. Breathalyzer readings were taken at 4:14 a.m. and 4:32 a.m., after the accused had phoned his parents for the name of a lawyer, after they had arrived at the detachment and after he had spoken to a lawyer. The readings were above the legal limit. 12 The accused was charged with the offences of operating a motor vehicle with a blood/alcohol concentration exceeding 80 milligrams and while impaired.

THE DECISION BELOW 13 At trial in Provincial Court, the trial judge found that the accused’s rights under s. 10(

b) of the Charter had been infringed, and he excluded the breathalyzer readings and the evidence of the failed sobriety tests. The accused was acquitted of both offences. 14 In reaching his conclusion, the trial judge undertook a trenchant review of the common law and statutory authority of police officers, provisions of The Highway Traffic Act [3] (the Act ), motor vehicle legislation in other provinces and decisions of the Supreme Court and the sometimes disparate decisions of courts in other provinces in which police authority and motor vehicle legislation have been considered.

He searched for, but did not find, a reasonable limit prescribed by law on the right of the accused to be informed of his rights under s. 10(

b) of the Charter before undertaking the roadside sobriety tests. 15 In concluding that the common law did not prescribe a limit, the trial judge applied the reasoning found in R. v. Gallant [4] , R. v. Oldham [5] and R. v. Baroni [6] and rejected the opposite view expressed in R. v. Sullivan [7] . 16 The trial judge contrasted the wording of provisions of the Act , specifically ss. 76.1 (now s. 76.1(1) [8] ) and 265, with provisions in the motor vehicle legislation in Ontario, British Columbia and Saskatchewan. He reviewed R. v. Saunders [9] , R. v. Milne [10] , R. v. Bonin [11] and R. v.

Sundquist [12] , decisions of the courts in those provinces that had found a statutory reasonable limit. He concluded that the decisions were not applicable to the Manitoba legislation. 17 Finally, applying R. v. Collins [13] and R. v. Stillman [14] , the trial judge determined that the evidence of the sobriety tests and the breathalyzer readings should be excluded pursuant to s. 24(2) of the Charter . ANALYSIS A Limit Prescribed by Law 18 Evidence of physical coordination or sobriety tests has had a long involvement in impaired driving cases.

As Ryan J.A. observed in Oldham (at pp. 399-400): In charges of care or control while impaired in pre- Charter days drivers were conscripted to provide evidence against themselves by being directed to participate in physical tests. In pre-breathalyser days this, frequently, was the only evidence adduced and the case was won or lost on the conscripted evidence.

Contrary to the argument that sobriety tests are merely an unintrusive investigative tool, the tests are conscripted evidence the results of which may, on their own, be sufficient demonstrative proof of the offence. 19 I accept the intrusive nature of the sobriety tests that Fruman J.A. described in R. v. Ellerman [15] (at para. 22 ):

Physical coordination tests take time to administer, require that the driver leave the vehicle to perform some special physical activity, and raise the potential of humiliating the detained driver, who stars in a roadside performance for all passers-by to see. In contrast, asking a driver a few clear questions about alcohol consumption in the privacy of a vehicle is speedy, straightforward, discreet and employs a natural form of human communication.

Although both procedures are designed to measure sobriety, they have little in common. 20 The tests were, and still are, an investigative tool that is not proscribed by law. But are they “prescribed by law” so as to meet the requirements of a reasonable limit upon a driver’s right to counsel under s. 1 of the Charter ? That is the crucial question on this appeal. It raises the issue of the duties of police officers and their express or implied powers in exercising those duties, and the express, implied or reciprocal duties that are imposed upon a driver of a motor vehicle. 21 In R. v.

Therens et al. [16] , Le Dain J. described the requirements of a s. 1 “prescribed by law” limit. He explained (at p. 645):

Section 1 requires that the limit be prescribed by law, that it be reasonable, and that it be demonstrably justified in a free and democratic society. The requirement that the limit be prescribed by law is chiefly concerned with the distinction between a limit imposed by law and one that is arbitrary. The limit will be prescribed by law within the meaning of s. 1 if it is expressly provided for by statute or regulation, or results by necessary implication from the terms of a statute or regulation or from its operating requirements.

The limit may also result from the application of a common law rule. 22 The court’s review of a limit prescribed by law under s. 1 of the Charter is a two-stage process. At the first stage, the court must decide whether the impugned law has the effect of limiting one of the rights or freedoms that are guaranteed under the Charter .

If such a limit is found, the court proceeds to the second stage and determines whether the limit is a reasonable one that can be demonstrably justified in a free and democratic society. 23 In the circumstances of this case, police authority to compel a driver to undertake sobriety tests is not expressly provided in a statute or regulation, or in a common law rule. The initial inquiry at the first stage of the analysis is whether such an authority results by necessary implication from the terms of a statutory or regulatory provision or from the common law.

It is only if such a police power is found that the court proceeds at the first stage of the analysis with the question: Does the police authority to conduct sobriety tests, expressly or implicitly, or because of its operating requirements, preclude the driver’s contact with counsel before undertaking the tests? 24 If such a limit prescribed by law is found to exist at the first stage of the inquiry, the review proceeds to the second stage, where the limit is subjected to the R. v.

Oakes [17] justification analysis. 25 In Therens , the demand pursuant to s. 235(1) (now s. 254(3)) of the Code that Therens accompany the police officer to a police station and submit to a breathalyzer test was found to be a detention within the meaning of s. 10 of the Charter . The authority given to police officers by the

section clearly engaged Charter rights. Le Dain J. then referred to the requirement of s. 237(1) (c)(ii) of the Code that the test be completed not later than two hours after the offence was committed. That operating requirement, he concluded, did not limit Therens’s right to contact with counsel prior to the breathalyzer test. The s. 1 analysis came to an end at the first stage. 26 In R. v. Thomsen [18] , the accused had been stopped by a police officer engaged in spot checks of motor vehicles.

The question that was before the court was whether a roadside screening test could be administered under s. 234.1(1) (now s. 254(2)) of the Code before the driver had been informed of his right to counsel. Le Dain J., writing for the court, found a reasonable limit in s. 234.1. Although the driver was detained within the meaning of s. 10(

b) of the Charter , Le Dain J. concluded that there is an implicit limitation of his right to counsel prescribed in s. 234.1(1). He explained (at p. 653): These observations emphasize what, as a practical matter, is implied by the words “forthwith” and “roadside” in s. 234.1(1). That there is to be no opportunity for contact with counsel prior to compliance with a s. 234.1(1) demand is, in my opinion, an implication of the terms of s. 234.1(1) when viewed in the context of the breath testing provisions of the Criminal Code as a whole.

A s. 234.1(1) roadside screening device test is to be administered at roadside, at such time and place as the motorist is stopped, and as quickly as possible, having regard to the outside operating limit of two hours for the breathalyzer test which it may be found to be necessary to administer pursuant to s. 235(1) of the Code . (The word “roadside” that was part of the description of an approved screening device in s. 234.1(1) has long since disappeared from the section. Nothing turns on this change in the section.

See Bernshaw , at paras. 27 and 62 .) 27 Le Dain J. then proceeded to the second stage of the s. 1 analysis and concluded (at p. 655): The important role played by roadside breath testing is not only to increase the detection of impaired driving, but to increase the perceived risk of its detection, which is essential to its effective deterrence.

In my opinion the importance of this role makes the necessary limitation on the right to retain and instruct counsel at the roadside testing stage a reasonable one that is demonstrably justified in a free and democratic society, having regard to the fact that the right to counsel will be available, if necessary, at the more serious breathalyzer stage. Police Powers at Common Law

28 The Crown argues on this appeal that “the police have the power at common law to conduct roadside sobriety tests, and this common law power constitutes a limit ‘prescribed by law’ to the right to counsel in s. 10(

b) of the Charter .” 29 In Dedman v. The Queen et al. [19] , a decision relating to pre- Charter events, the Supreme Court wrestled with the scope of police powers at common law. The majority (on a slim 4:3 division) concluded that a random vehicle stop for the purpose of the R.I.D.E. program, a program set up by the police to detect impaired drivers, met the test laid down in R. v. Waterfield [20] .

Dickson C.J.C., in dissent, stated that “the police, in carrying out their general duties as law enforcement officers of the state, have limited powers and are only entitled to interfere with the liberty or property of the citizen to the extent authorized by law” (at p. 10). That “fundamental tenet of the rule of law” was not disputed by the majority in Dedman . The court divided, however, on its application to the random stop of a motor vehicle for purposes of the R.I.D.E. program that was not authorized by statute.

The dissonance of the court was eloquently reflected in the opinion of Dickson C.J.C. when he wrote (at p. 17): With respect, the majority of the Court departs firm ground for a slippery slope when they authorize an otherwise unlawful interference with individual liberty by the police, solely on the basis that it is reasonably necessary to carry out general police duties. 30 It should not be overlooked that the authority of the police officer to proceed with more intrusive investigative procedures in Dedman (an A.L.E.R.T. demand with which the accused had refused to comply) was found in s. 234.1(1) (now s. 254(2)) of the Code and not in the common law. 31 Dickson J. (as he then was) had more to say on police duties and police powers at common law in Moore v.

The Queen [21] . In that case, the issue before the court was the obligation of the accused to identify himself to a police officer who had observed him ride his bicycle through a red light. The majority found that obligation in the interaction of several provincial statutes. Dickson J. did not and in a principled dissent concluded that such a duty was not imposed by the common law. He wrote (at p. 212): The fact that a police officer has a duty to identify a person suspected of, or seen committing, an offence says nothing about whether the person has the duty to identify himself on being asked.

Each duty is entirely independent. Only if the police have a lawful claim to demand that a person identify himself, does the person have a corresponding duty to do so. 32 Dickson J. cautioned: “The criminal law is no place within which to introduce implied duties, unknown to statute and common law, breach of which subjects a person to arrest and imprisonment” (at p. 213). 33 With one possible exception, police authority to compel a driver to submit to physical coordination tests has not been found in the common law by the Supreme Court or by any provincial appellate court.

Common law authority for such a police power has been specifically rejected in Nova Scotia (see Baroni , at p. 562) and in New Brunswick (see Oldham , at p. 418).

In Gallant , the Alberta Court of Appeal found that a “request” for sobriety tests was authorized by common law, but because no duty was imposed on a driver, there was no limit prescribed by law. 34 The one possible exception is the Sundquist decision, in which common law “authority” was found for a police officer to conduct sobriety tests for the purpose of enforcing the licence suspension provisions in s. 91 of the Saskatchewan Highway Traffic Act [22] , but a limit prescribed by law was found in s. 91(3) , not in the common law.

I say it is a possible exception because it is not clear whether the “authority” that was found was a police power or merely a police duty. 35 In Sullivan , the Court Martial Appeal Court went further and concluded that the common law power to detain (in a “psychological and situational sense”) and investigate was a reasonable limit prescribed by law.

Hugessen J.A., delivering the oral reasons of the court, concluded (at pp. 264-65): The “law” of which s. 1 speaks may be common law as well as statute [ Therens , at p. 645] and a peace officer has both the power and the duty to investigate where circumstances indicate the possible commission of a criminal offence [ Dedman ].

In the case of drinking and driving offences, such investigation, by necessary implication, includes the right to impose a brief “detention” on the accused while the officer, in the interests of the accused as well as of the public, determines if there are reasonable and probable grounds to believe that an offence has been committed.

The denial of the right to counsel during that brief period is, accordingly, prescribed by law and is justified for the reasons stated in Saunders and Bonin . 36 With respect, that reasoning does not appear to take into account the distinction between the duties police have at common law and the powers or lawful authority they have to execute those duties. I would not question that the police officer had a duty at common law to investigate the possibility that Sullivan had committed an offence. He had been found asleep in the driver’s seat of his vehicle at 4:30 a.m.

When the officer approached the vehicle and asked for identification, he observed the odour of alcohol. A brief detention may well have been within the police officer’s authority to impose at common law. However, the authority to conduct intrusive investigative procedures to elevate his opinion to reasonable and probable grounds was not a police power at common law that was identified or recognized in Dedman . The existence of such a power at common law does not find support in the Saunders and Bonin decisions to which Hugessen J.A. referred.

Those decisions were concerned with powers given to police officers expressly or by implication under provincial motor vehicle legislation. 37 Finally, if the common law empowered the police officer to conduct sobriety tests in the circumstances, it is not explained why the exercise of that power – that is, its operating requirements – would impose a limit on Sullivan’s Charter right to counsel. 38 With respect, I do not find the Sullivan decision to be a persuasive authority for the existence of a common law power to require a driver to undertake self-incriminating investigative procedures.

39 In Sundquist , Cameron J.A., writing for the Saskatchewan Court of Appeal, stated that the question before the court (at p. 155) … is not whether the law confers power on police officers to conduct such tests on demand, in the sense of empowering them to exact compliance.

Rather, it is whether the law authorizes them to do so on request, when the request is complied with, though practically speaking compliance is not truly voluntarily [ sic ]. 40 He found such an authority in the common law, but in light of the question that he had framed, it is uncertain whether it was a police duty or a police power that had been discovered.

He wrote for the court (at pp. 162-63): … [W]e are of the opinion the common law authorizes police officers who detain a person on reasonable suspicion of impaired driving to conduct sobriety tests for the purposes of determining if reasonable and probable grounds exist for suspending a driver’s licence under

section 91 of the Highway Traffic Act and for making a demand for a breath test under subsection 254(3) of the Criminal Code . 41 Notwithstanding the court’s conclusion that the police actions “in requesting and conducting physical sobriety tests” met both branches of the Waterfield test, it remains unclear whether a police power had been found. 42 No authority was cited in Sundquist whereby, at common law, a person could be compelled to undertake sobriety tests. Pre- Charter cases ( R. v. Shaw [23] is an example) confirm the common law right of a driver to refuse to perform them.

Other pre- Charter cases cited by the Crown in which evidence of sobriety tests performed by the accused or of his physical condition was considered ( R. v. Martin [24] and R. v. Ross [25] are examples) were concerned with the admissibility of evidence of the tests or observations.

They do not support the existence at common law of a police power to compel an accused to undertake the tests. 43 Although Cameron J.A. concluded in Sundquist that the common law authorizes a police officer to conduct sobriety tests, the authority to do so without informing the driver of his right to counsel was found in s. 91(3) of the Saskatchewan Highway Traffic Act . He wrote (at p. 165): Hence, we are convinced: (

a) that the common law authorizes a police officer who reasonably suspects a person of impaired driving to conduct sobriety tests for the purpose of determining if reasonable and probable grounds exist for exercising the powers conferred in turn by subsection 91(3) of the Highway Traffic Act and subsection 254(2) of the Criminal Code ; and (

b) that subsection 91(3) of the Highway Traffic Act , taken together with

section 25(

b) of the

Interpretation Act, 1995, authorizes a police officer to conduct sobriety tests without first informing the person, as required by

section 10(

b) of the Charter , of his or her right to counsel. (Cameron J.A. must have intended to refer to s. 254(3) of the Code in the above quotation. It is not necessary for a police officer to elevate his reasonable suspicion to reasonable and probable grounds in order to make a demand under s. 254(2) .) 44 Cameron J.A. reasoned (at p. 164): Immediacy is quite clearly the hallmark of the provisions of the Highway Traffic Act under consideration.

And while they do not say so expressly, their tenor suggests that police officers may make the requisite assessment forthwith, without first informing persons of their right to counsel. Indeed, there is every reason to suppose these provisions were intended by the legislature to operate in this way. One might expect police officers to exercise the powers given to them under s. 91 in a timely manner. However, that is not the concern that led the Supreme Court in Thomsen to find a limit prescribed by law pursuant to s. 1 of the Charter .

That limit was found in the practical implications of the breath-testing provisions of the Code that are reflected in the statutory requirement in s. 254(2) that a person “provide forthwith” a sample of his breath for an A.L.E.R.T. test. That is the legislative imperative that precluded a driver’s contact with counsel before providing a breath sample.

No such legislative intent or imperative is found in s. 91 or in the police powers that have been attributed to the provision by implication. 45 The distinction between the duties police have at common law and the powers or lawful authority they have to execute those duties was considered in Gallant , Oldham and Baroni . 46 In Gallant , Hetherington J.A., writing for the Alberta Court of Appeal, found that the police officer’s request that the accused perform sobriety tests was authorized by the common law.

However, in reasoning that is reminiscent of the distinction that Dickson J. had drawn between police duties and police powers in Moore , she concluded that there was no limit on the accused’s right to counsel prescribed by law. She wrote (at p. 338): In this regard it is important to distinguish between a duty imposed on the police and a duty imposed on a citizen. Here no duty was imposed on the appellant. He was not obliged to perform the sobriety tests. The only person subject to a duty in this case was the police constable. 47 The distinction between police duties and police powers was recognized in Oldham .

In that case, a police officer, while taking a report of an accident in which Oldham had been involved, detected a strong odour of alcohol. The officer asked him to perform

sobriety tests without informing him of his right to counsel under s. 10(

b) of the Charter . He failed those tests. He was given his Charter rights and the breathalyzer demand, and he failed the breathalyzer test. He was convicted at trial, and the

summary conviction appeal judge confirmed his conviction. On further appeal to the New Brunswick Court of Appeal, the majority set aside the conviction and entered an acquittal. 48 Ryan J.A., in a concurring majority judgment, reviewed the “right” of a police officer in investigating drinking and driving offences and the corresponding duty upon the driver (at pp. 401-2). He concluded (at pp. 402-3): In my opinion, Oldham had a right upon detention to be informed of his right to consult counsel and there was a duty on the officer to advise him of that right. The officer’s obligation to investigate stands alone.

There is no corresponding duty on the part of a defendant to assist in his or her own conviction. Suspicions of impairment give rise to certain steps that have been legislated as permissible, without cautioning a person, such as requiring a driver to submit to an A.L.E.R.T. test. There is no equivalent under the common law for physical tests. The appellant’s right to counsel was violated when he was detained and not advised of his rights before being conscripted to provide evidence against himself.

Section 1 of the Charter does not apply. 49 Turnbull J.A., in his concurring reasons, reached a similar conclusion. He wrote (at p. 417): When the Waterfield tests are applied to this case, the following would result: Constable Boudreau was acting within the general scope of his duties to preserve the peace, prevent crime and protect life and property when he detained Mr. Oldham while furthering his investigation of a suspected criminal act, driving while impaired, thus satisfying the first branch of the Waterfield test. However, in seeking to elicit evidence from Mr. Oldham before advising him of his s. 10(

b) Charter rights, his conduct was unlawful because it was an unjustifiable use of the powers associated with his duties. As I have already noted in relation to finding that Mr. Oldham’s s. 10(

b) Charter rights were violated, the Supreme Court of Canada has imposed a duty of restraint on police officers to refrain from and to hold off eliciting evidence from detainees, in the circumstances of Mr. Oldham, until the detainee has been advised of the right to counsel and given a reasonable opportunity to retain and instruct counsel (again, except in cases of urgency, dangerous circumstances or waiver of the right). 50 He concluded (at p. 418): The limit on Mr. Oldham’s right to counsel was thus imposed by Constable Boudreau, and not by a statute, regulation or a common law rule.

Such a limit is not prescribed by law and, therefore, within s. 1 of the Charter . Accordingly, there is no limit prescribed by law on Mr. Oldham’s s. 10(

b) Charter rights, …. …. 51 The reasoning and conclusion of the majority in Oldham mirror those of Sopinka J. in his concurring reasons in R. v. Hebert [26] . In that case, the accused was tricked into making a statement to an undercover police officer who had been placed in his cell after he had spoken to counsel and after he had advised the police that he did not wish to make a statement. The court concluded that the accused’s Charter rights had been violated and that the trial judge was right in refusing to admit the statement in evidence.

On the analysis of the application of s. 1 of the Charter , Sopinka J. wrote (at p. 205): The police conduct that constituted the Charter violation in the present case was a police initiative, and was not the execution or necessary implication of a statutory or regulatory duty, and was not the result of the application of a common law rule. The use of undercover officers in these circumstances is certainly legal, in the sense that it is not proscribed by law; but it does not follow that this tactic is prescribed by law.

The word “prescribe” connotes a mandate for specific action, not merely permission for that which is not prohibited. For these reasons, it cannot be said that the limiting effect on the appellant’s s. 7 rights was “prescribed by law”, and it is therefore unnecessary to consider the application of s. 1 to the facts of this case. 52 In Baroni , the Nova Scotia Court of Appeal reached a conclusion similar to that reached in Oldham . The facts in that case are similar to those on this appeal. The accused was observed by police officers driving erratically.

He was stopped and “exhibited some signs of impairment.” He was asked to perform sobriety tests without being advised of his s. 10(

b) Charter rights, and he failed them. A breathalyzer demand was then made, and the accused was given his right to counsel caution. He refused the breathalyzer test. Baroni was acquitted at trial, and on appeal, that decision was affirmed by the

summary conviction appeal judge. Leave to appeal was granted to the Crown, but the appeal was dismissed. 53 Clarke C.J.N.S., for the court, wrote (at p. 562): This court has held that the duty derived from common law to control traffic and protect life and property permits police officers to stop motorists for spot checks and if, as a result, they have reasonable and probable grounds to administer the A.L.E.R.T., they may do so without violating s. 10(

b) of the Charter . R. v. Whynacht (1987), 1987 CanLII 6846 (NS CA) , 36 C.C.C. (3d) 553 , 79 N.S.R. (2d) 225 , 2 M.V.R. (2d) 299 (N.S.C.A.) . This court has not gone as far as the Alberta Court of Appeal in Gallant . 54 Clarke C.J.N.S. went on to endorse the conclusion of the

summary conviction appeal judge [27] , who had written (at p. 562):

In the absence of statutory authority, apparent or implied, or a foundation in the common law, it cannot be said that sobriety tests are a reasonable limit on the rights of Canadians “prescribed by law”. Unlike the A.L.E.R.T. test, they are not saved by s. 1 of the Charter when s. 10 has been infringed. 55 In this case, Guy P.J. did “not find any common law authority for requesting sobriety tests without advising the accused of his s. 10 (

b) rights” (at para. 41). For the reasons above, I am in complete agreement with that conclusion. In my view, the Sullivan and Sundquist decisions were wrongly decided and should not be followed in Manitoba. 56 I adopt (and paraphrase) the words of Sopinka J. in Hebert : The use of sobriety tests in these circumstances is certainly legal, in the sense that they are not proscribed by law; but it does not follow that this investigative tool is prescribed by the common law.

Statutory Authority 57 The duty or obligation of a driver to undertake roadside sobriety tests is not found in express language in provisions contained in the Act . Apart from s. 636.1 of the Quebec Highway Safety Code [28] , such a duty or obligation is not found in express language in the motor vehicle legislation of any other province. The Crown argues, however, that the power to conduct such tests is implicit in the statutory duties and obligations that are placed on a driver under the Act .

The Crown relies on Saunders and Bonin , decisions in which such police authority was found in the Ontario and British Columbia motor vehicle legislation. 1.

Section 76.1(1) of the Act 58 In Manitoba, the statutory authority for a police officer to make a random stop of a vehicle and the obligation of a driver to stop are found in s. 76.1(1) of the Act . That

section provides: Peace officer may stop vehicles 76.1(1) A peace officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a motor vehicle to stop, and the driver of the motor vehicle, when signalled or requested to stop by a peace officer who is readily identifiable as such, shall immediately come to a safe stop and remain stopped until permitted by the peace officer to depart. 59 The Crown argues that “the statutory obligation [under s. 76.1(1) ] of the driver to remain at the roadside necessarily contemplates the conduct of appropriate investigative measures by the police.” These measures, the argument continues, “might include sobriety tests.” As we will see, the authority to require a driver to undertake sobriety tests has not been ascribed to police officers by implication under similar provisions in the motor vehicle legislation of other provinces. 60

Section 189a(1) of the Ontario Highway Traffic Act [29] , almost identical to s. 76.1(1) , was considered in R. v. Hufsky [30] and R. v. Ladouceur [31] . (The only difference, one that in my view is of no moment, is that s. 189a(1) does not include the words “and remain stopped until permitted by the peace officer to depart” that are found at the end of s. 76.1(1) . The duty to remain stopped, it seems to me, is one that arises under s. 189a(1) by necessary implication.) Both decisions arose out of random stops, and in both cases, the stops were found to be authorized by s. 189a(1).

In Ladouceur , the court confirmed that “routine check random stops” violate s. 9 of the Charter (see pp. 1263 and 1276-78), but the majority concluded that the power of a police officer to stop motor vehicles at random derived from s. 189a(1) was a valid and constitutional legislative enactment that was saved by s. 1 (see pp. 1288-89). 61 What is significant to the circumstances of this appeal are the purposes for which a police officer may stop the driver of a motor vehicle pursuant to the

section and the limitations on his authority in so doing. Cory J. identified the legal reasons and limits for such a stop in Ladouceur (at p. 1287): Officers can stop persons only for legal reasons, in this case reasons related to driving a car such as checking the driver’s licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle. Once stopped the only questions that may justifiably be asked are those related to driving offences. Any further, more intrusive procedures could only be undertaken based upon reasonable and probable grounds.

Where a stop is found to be unlawful, the evidence from the stop could well be excluded under s. 24(2) of the Charter . 62 Clearly, neither Hufsky and Ladouceur , nor any of the decisions of other provincial appellate courts that have considered similar legislative provisions, support the Crown’s argument in this case that police officers are authorized by s. 76.1(1) of the Act to require a driver who has been stopped to undertake self-incriminating and intrusive investigative procedures such as sobriety tests.

The questions they may justifiably ask the driver, and the observations they may make while doing so, however, may provide them with the belief that is required in order to make a demand pursuant to s. 254(2) or (3) of the Code . 63 Provisions similar to s. 76.1(1) of the Act are found in the motor vehicle legislation of other provinces. Examples include: s. 67(1) of the British Columbia Motor Vehicle Act [32] , considered in Bonin ; s. 40(8) of the Saskatchewan Highway Traffic Act ,

considered in Sundquist ; s. 119 of the Alberta Highway Traffic Act [33] , considered in Gallant ; s. 83(1) of the Nova Scotia Motor Vehicle Act [34] , considered in R. v. MacLennan [35] ; and s. 636 of the Quebec Highway Safety Code , considered in R. v. Tremblay [36] .

In none of those decisions has the court interpreted the statutory provision as imposing upon a driver a duty to perform roadside coordination tests. 64 I conclude that the argument of the Crown “that the operating requirements of s. 76.1 alone are sufficient to meet the ‘prescribed by law’ standard for a Charter s. 1 limitation” finds no support in the case law. That was the conclusion of the trial judge, with which I agree. The authority to compel a driver to perform sobriety tests is not given to police officers under s. 76.1(1) , either expressly or by necessary implication. The

section is not a limit prescribed by law on the accused’s Charter right to counsel before undertaking the tests. 65 I will have more to say about the notion of the “operating requirements” in the paragraphs that follow. 2. Sections 263.1(1.1) and 265 of the Act 66 The operational requirements of other sections of the Act , the Crown argues, implicitly authorize the administration of sobriety tests. That is what Lerner P.J. had concluded in R. v. Bohnke [37] , a case not mentioned by the trial judge and apparently not referred to him.

In that case, Lerner P.J. wrote: In my opinion, as in Bonin and the other cases that are similarly decided, the operational requirements of s. 76.1, s. 265(1) and (2) therefore implicitly provide a basis for the administration of the physical coordination tests, and further implicitly prescribe the reasonable limit of a brief delay in informing the driver of his right to counsel until the tests are completed. 67 With respect, that reasoning confuses two separate and distinct issues.

The first issue is the identification of a police power that is given expressly by a provision of the Act or that results by necessary implication from its terms. In this case, the question becomes: Does a provision of the Act expressly or by necessary implication empower a police officer to conduct physical coordination tests and obligate a driver to undertake them? That question will be answered by the application of the well-established rules of statutory

interpretation, including the overarching principle that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act , the object of the Act , and the intention of Parliament.” [38] 68 The second issue, if that police power is found in the statute, is whether a police officer can conduct the tests before informing the driver of his/her right to counsel. It was with respect to this second issue that Le Dain J., in Therens , introduced the notion of “operating requirements” into the Supreme Court jurisprudence.

As we have seen above (in para. 25), he looked to the “operating requirements” of s. 235(1) (now s. 254(3) ) and the related breathalyzer provisions of the Code in concluding that contact with counsel was not precluded before the breathalyzer test was administered. 69 The distinction between those separate issues is blurred in the argument counsel for the Crown advances on this appeal – that the operational requirements of provisions in the Act “implicitly authorize the administration of sobriety tests.” And, as we will see, the same confusion is found in the reasoning in Bonin , where police powers are imputed to statutory provisions because of their operating requirements. 70

Section 265 of the Act imposes a duty on a peace officer to request a person to surrender his or her driver’s licence when a sample of the breath of that person registers “Warn” on an A.L.E.R.T. test made pursuant to s. 254 of the Code or the test indicates that the concentration of alcohol in the person’s blood is 50 milligrams or more or when he or she is charged with an offence under s. 254 of the Code . 71 In this case, the Crown refers as well to s. 263.1(1.1) of the Act . That

section provides that a peace officer shall seize and suspend the licence or permit of a driver when, “by reason of an analysis of the breath or blood of a person, [he] has reason to believe that the person has consumed alcohol in such a quantity that the concentration thereof in his or her blood exceeds 80 milligrams of alcohol in 100 millilitres of blood, or [when he] has reason to believe that a person while having alcohol in his or her body failed or refused to comply with a demand made on that person to supply a sample of his or her breath or blood under

section 254 of the Criminal Code .” 72 Sections 263.1(1.1) and 265 are rather lengthy, and it will serve no purpose to reproduce them in these reasons. 73 It will be observed that the exercise of the powers given to peace officers under those provisions is dependent upon the existence of objective criteria – a breath or blood analysis or a failed or refused breath or blood sample demand, a “Warn” indication on an A.L.E.R.T. test or a charge under s. 254 of the Code (or, in the case of s. 263.1(1.1), the peace officer’s belief in the existence of those objective criteria).

Police authority to conduct intrusive and potentially self-incriminating sobriety tests do not arise by necessary implication or unavoidable inference from the language of the sections. The clothing of police officers with the power to deprive a driver of his/her Charter and common law rights is, in my view, beyond the scope of the implied powers rule that is codified in s. 32(1) of The

Interpretation Act [39] . On this point the authorities are clear – legislation that encroaches on the common law rights of the person must be clearly expressed and will be strictly construed. See: Tower Company

(1961) Ltd. v. Frobisher Bay, Village of [40] , at para. 22 ; Tottrup v. Alberta , Province of [41] , at para. 15; Colet v. The Queen [42] ; Hongkong Bank of Canada v. Wheeler Holdings Ltd. [43] , at p. 197; Laidlaw v. Municipality of Metropolitan Toronto [44] ; Re Purdy [45] ; Griffin v. Poirier and Poirier [46] ; Canadian Pacific Limited v. Paul et al. [47] ; and MacKeigan v. Hickman [48] . Statutory Provisions in Other Provinces

1. Ontario 74 In the Saunders decision, the Ontario Court of Appeal considered s. 30a of the Ontario Highway Traffic Act .

Section 30a(1) (now s. 48(1) ) provided (at that time): Spot Checks 30a .

(1) A police officer, readily identifiable as such, may require the driver of a motor vehicle to stop for the purpose of determining whether or not there is evidence to justify making a demand under

section 238 [now s. 254] of the Criminal Code (Canada) . 75 Cory J.A. (as he then was), writing for a unanimous court, observed (at p. 544): … [Section] 30a empowers the police officer to require a driver to undertake reasonable co-ordination tests as surely as it permits an officer to require a driver to submit to an A.L.E.R.T. device test. It is a reasonable limitation prescribed by law that can be demonstably [ sic ] justified in a free and democratic society. 76 Cory J.A. reasoned (at pp. 539-40):

Section 30a, by clear inference, indicates that the officer can take reasonable steps to determine whether there is evidence to justify making a demand under s. 238 of the Criminal Code . The co-ordination test, like the A.L.E.R.T. test, is an investigative tool which causes no greater inconvenience than does the administration of the A.L.E.R.T. test. I appreciate that it is compulsory for a driver to undergo an A.L.E.R.T. test whereas there is no statutory requirement that a co-ordination test be taken.

Nevertheless, the evil of impaired drivers is so great and imminent to all who use the highway, and the inference to be drawn from s. 30a is so reasonable and clear, that I can only conclude that a police officer stopping a car pursuant to the provisions of s. 30a is empowered to require a driver to undertake a co-ordination test. 77 Cory J.A. went on to conclude (at p. 545): … I am of the opinion that s. 30a of the Highway Traffic Act , by clear implication, authorizes a police officer to require a driver who [ sic ] he suspects is imparied [ sic ] to undertake co-ordination tests prior to being advised of the constitutional right to retain counsel without delay.

This statutory provision constitutes a reasonable limit on that constitutional right which is prescribed by law and which can be demonstrably justified in a free and democratic society. 78 There is no provision similar to s. 30a of the Ontario Act in force in Manitoba. It would be a simple matter to say that, for that reason, the Saunders decision has no application to the circumstances of this appeal.

However, counsel for the Crown relies on the decision, and as well, it has been followed in decisions in other provinces, particularly Bonin and Sundquist , that are relied upon by the Crown. 79 At the outset, let me say that I find the reasoning of the court in Saunders troubling. The court was obviously and rightly concerned about the real and imminent menace that the drinking driver is to those who use the public highways. However, I think the conclusions in the decision are challenged by uncertain findings and by the application of the implied powers rule in a way that is not supported by the authorities.

In the result, extraordinary police powers and limitations on Charter rights and freedoms are found to exist in legislation that are beyond the scope of the rule of implied powers as a matter of statutory construction.

Let me explain. 80 After referring to the explanation of Le Dain J. in Therens of the limit “prescribed by law” (I have quoted the explanation above in para. 21), Cory J.A. concluded (at p. 540): The inference to be drawn from s. 30a is that the police officer may not only stop the car in appropriate circumstances, but may also require the driver to undergo either an A.L.E.R.T. device test or co-ordination tests. [emphasis added] 81 There is, of course, statutory authority requiring a driver to undergo an A.L.E.R.T. test and penal consequences for his/her refusal to do so.

Section 30a empowers a police officer to take reasonable steps to determine if there are grounds for making an A.L.E.R.T. demand under s. 254(2) (or a breathalyzer demand under s. 254(3) , if the grounds for that demand are present: R. v. Smith [49] , at p. 70). Cory J.A. has added to the

section a police power, not otherwise authorized by statute or the common law, to compel a driver to undertake intrusive and potentially self-incriminating investigative procedures. The words he has used in describing the police power – “to require a driver to undertake reasonable co-ordination tests” – suggest that he has found a corresponding duty on a driver to do so. 82 In my view, such a power does not arise by necessary implication from the language of s. 30a. The authorities are clear that such an invasion of the security of the person must be strictly construed. The legislature did not sanction such an invasion, and there is nothing in the language of the

section that would entitle a court to do so. 83 On the next page, however, Cory J.A. casts some doubt on his finding of a police power to require a driver to undertake a coordination test. In reasoning that is somewhat contradictory, he continued:

It must be remembered that the impaired driver may be, to all who use the highways, an ongoing danger as great as any charged and ticking time bomb. The appellant argued that the officer acting under s. 30a of the Highway Traffic Act can do not [ sic ] more than stop the vehicle. It follows that if he does not have an A.L.E.R.T. testing device he must, despite his suspicions, permit the driver to continue driving. If he advises the driver of the right to counsel, the driver will no doubt call counsel and be advised that he need not comply with the request to perform the co-ordination test.

Once again, the officer must permit the driver to continue on down the highway, perhaps to follow helplessly to the scene of the almost inevitable accident so very likely to be caused by the impaired driver. 84 An argument that counsel for the accused had apparently advanced during the appeal hearing is referred to in those comments.

It appears, however, that Cory J.A. adopted the argument that a driver did not have to comply with a request to perform a coordination test; that the police power implied under s. 30a to “require” a driver to undertake a coordination test did not impose a corresponding duty upon a driver to do so. As we have seen, “[t]he requirement that the limit be prescribed by law is chiefly concerned with the distinction between a limit imposed by law and one that is arbitrary” ( Therens , at p. 645, per Le Dain J.). Without such a duty on a driver to undertake the test, there is no limit prescribed by law.

The request of a police officer that a driver undertake a sobriety test in such circumstances is no more than an arbitrary limit. 85 If a power to compel a driver to undertake a sobriety test under s. 30a could be included by necessary implication or unavoidable inference (and in my opinion it cannot), it is not explained how that power would impose a limit on the driver’s right to counsel under s. 10(

b) of the Charter . As we have seen, such a limit was found with respect to the A.L.E.R.T. demand made under s. 254(2) of the Code in Parliament’s legislative imperative that the driver provide a breath sample “forthwith”: Thomsen , at p. 653. Such a limit was not found with respect to the breathalyzer demand in Therens (at p. 645).

In that decision, the operating words in s. 254(3) of the Code , “forthwith or as soon as practicable,” were found not to preclude contact with counsel before the test. 86 In finding such a limit in s. 30a, Cory J.A. seems to have relied on “the evil of impaired drivers [that] is so great and imminent to all who use the highway” (at p. 539).

That concern, in my opinion, is one that is relevant at the justification stage of the s. 1 analysis, not at the first stage, when the court must determine whether there is a limit prescribed by law to a Charter right. 87 In this case, the trial judge distinguished Saunders and Milne (another decision in which s. 30a(1) (now s. 48(1)) of the Ontario Highway Traffic Act was considered) on the basis that s. 48(1) “is considerably more explicit and focuses on the issue of investigative tools in order to make a demand” (at para. 51).

I would go further and say that in finding a police power by implication in s. 48(1) to compel a driver to submit to sobriety tests, the cases were wrongly decided. They should not be followed in Manitoba. 2. British Columbia 88 A limit prescribed by law has also been found in British Columbia’s motor vehicle legislation. Section 67(1) of the Motor Vehicle Act contains a provision similar in its wording to s. 189a(1) of the Ontario Highway Traffic Act . It provided (in 1989): 67.

(1) A peace officer may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signalled or requested to stop by a peace officer who is readily identifiable as a peace officer, shall immediately come to a safe stop. 89 Section 214(2) of the British Columbia Motor Vehicle Act provided (in 1989):

(2) A peace officer may, at any time or place on a highway or industrial road when he has reasonable and probable grounds to believe that a driver’s ability to drive a motor vehicle is affected by alcohol, request the driver to drive the motor vehicle, under the direction of the peace officer, to the nearest place off the travelled portion of the highway or industrial road and there to surrender his driver’s licence. 90 There is no

section in the British Columbia Motor Vehicle Act that is equivalent to s. 30a(1) (now s. 48(1)) of the Ontario Highway Traffic Act that was considered in Saunders . Nevertheless, in Bonin , Taggart J.A., in construing s. 214 of the Motor Vehicle Act , applied the reasoning of Cory J.A. in the Saunders decision.

He wrote, for a unanimous court (at p. 244): In my opinion, the operational requirements of s. 214 implicitly prescribe the reasonable limit of a brief delay in informing the driver of his right to counsel until the tests are completed. 91 On the next page, he concluded: In my opinion, the operational requirements of s. 214 of the Motor Vehicle Act implicitly provide a basis for the administration of the physical co-ordination test.

That being so, the limit, which in this case is reasonable, is one prescribed by law. 92 As I have observed above, that reasoning appears to confuse two different issues: the police powers that are implied by s. 214; and the operating requirements of those implied powers and whether they limit the driver’s right to counsel. In concluding that the operational requirements of s. 214 implicitly provide a basis for the administration of physical coordination tests, Taggart J.A. did refer to the implied powers provision found in s. 27(2) of the

Interpretation Act [50] . In doing so, however, he did not advert to the principles that

have governed the application of the rule over the centuries. Section 27(2) provided (in 1989): Ancillary powers

(2) Where in an enactment power is given to a person to do or enforce the doing of

an act or thing, all the powers shall be deemed to be also given that are necessary to enable the person to do or enforce the doing of the act or thing.

Taggart J.A. wrote (at p. 243): That language is particularly apt to support the request by an investigating officer for the performance by a driver of physical co-ordination tests in order that the officer may decide whether to require the driver to surrender his driver’s licence pursuant to s. 214(2) of the Motor Vehicle Act . [emphasis added] 93 What is missing in that reasoning, and indeed throughout the decision in Bonin , is a finding that a police power to conduct physical coordination tests and a corresponding duty on a driver to undertake them arise by necessary implication or unavoidable inference from the language of s. 214.

As has been seen above, only when a police officer has a lawful authority to demand that a driver undertake sobriety tests does the driver have a corresponding duty to do so. Without that corresponding duty, the request of the police officer, although not proscribed by law, is not prescribed by law. It is an arbitrary action that cannot impose a limit on a driver’s right to counsel. 94 In my view, for the reasons I have given above in my discussion of the Saunders decision, it was not open to the court in Bonin to add such a police power to s. 214 by necessary implication.

To do so would be to ignore the fundamental rule of statutory

interpretation that such an invasion of the rights and freedoms of the individual must be expressly authorized. That is the role of Parliament or the legislatures, not of the courts. 95 Taggart J.A. concluded that “the operational requirements of s. 214 implicitly prescribe the reasonable limit of a brief delay in informing the driver of his right to counsel until the tests are completed” (at p. 244). In support of that conclusion, he referred at length to the reasons of Cory J.A. in Saunders , in which the evil and ongoing danger of the impaired driver had been detailed.

What is missing in that analysis, as it was in the Saunders decision, is a foundation for an implied legislative intent to limit Charter rights and freedoms in the performance of police powers. 96 I find no support in the Bonin decision for the Crown’s argument that ss. 263.1(1.1) and 265 of the Act implicitly authorize the administration of sobriety tests. 3. Other Provinces 97 It will serve no purpose to review the motor vehicle legislation in the other provinces.

Express language empowering a police officer to conduct sobriety tests is not found in the provincial statutes, and the courts have not found such a power by necessary implication. The one exception is in the Province of Quebec. In Tremblay , that police authority, and a limit prescribed by law pursuant to s. 1 of the Charter , were found in s. 636.1 of the Highway Safety Code .

Section 636.1, unlike legislation in any other province, incorporates the same standard that is found in s. 254(2) of the Code – reasonable suspicion of the presence of alcohol in the body – and specifically authorizes a peace officer to conduct physical coordination tests. The

section provided (at that time): Presence of alcohol 636.1 Where a peace officer reasonably suspects the presence of alcohol in the body of a driver having stopped his vehicle in accordance with

section 636 he may require the driver to undergo forthwith any reasonable physical coordination tests he indicates to him, to ascertain whether there is cause for requiring him to undergo the tests provided for in

section 254 of the Criminal Code . The driver must comply with this requirement without delay. 98 The trial judge in this case reviewed the Bonin and Sundquist decisions and the motor vehicle legislation in Ontario, Saskatchewan and British Columbia. He found that the legislative provisions of the Act are not comparable to provisions found in those provinces and concluded that they are “therefore inadequate in providing the necessary limit prescribed by law” (at para. 62).

I agree with the trial judge that a limit prescribed by law requiring a driver to undertake sobriety tests without being informed of his right to counsel is not found by implication in the provisions of the Act . However, I have reached that conclusion for the reasons set out above and not because of the differences in the motor vehicle legislation in other provinces.

Conclusion 99 The Crown concedes on this appeal that the right to counsel information provided to the accused at the roadside “did not meet the informational component mandated by the Supreme Court of Canada.” The accused was detained at the roadside, and the evidence of his performance of the sobriety tests was obtained in a manner that infringed his rights guaranteed by s. 10(

b) of the

Charter . I have concluded that the right of the accused to retain and instruct counsel and to be informed of that right before performing the sobriety tests was not precluded by a limit “prescribed by law.” The use of physical coordination tests as an investigative tool is not proscribed in Manitoba. However, the authority of a police officer to compel a driver to perform tests, and the duty upon a driver to undertake them, are not found in a statute or regulation in Manitoba, either expressly or by necessary implication, or in a common law rule.

Any limit upon the Charter rights of a driver who has been requested to undertake such tests is an arbitrary one, not one that is prescribed by law. 100 The evidence of the sobriety tests that the accused undertook at the roadside will be excluded pursuant to s. 24(2) of the Charter “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.” 101 The trial judged concluded that the evidence should be excluded. I turn, then, to his analysis of the application of s. 24(2) of the Charter .

APPLICATION OF S. 24(2) OF THE CHARTER 102 Section 24(1) and (2) of the Charter provides: Enforcement of guaranteed rights and freedoms 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. Exclusion of evidence bringing administration of justice into disrepute

(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. 103 The s. 10(

b) Charter information the accused was given at the roadside did not meet the requirements that have been spelled out by the Supreme Court in such cases as R. v. Bartle [51] and Brydges . The failure to provide to the accused information about legal aid and duty counsel programs, elements added to the s. 10(

b) caution in Brydges and explained in Bartle , amounts to a breach of that Charter right: Bartle , at p. 198. However, it is clear that “exclusion of evidence, even self-incriminatory evidence, will not necessarily follow each and every breach of the right to counsel under s. 10 ( b )”: Bartle , at p. 213, per Lamer C.J.C. The factual circumstances surrounding the failure to meet the informational requirements of a s. 10 (

b) caution may be relevant to the question whether the evidence obtained as a result of the Charter violation is to be excluded under s. 24(2). Lamer C.J.C. explained in Bartle (at p. 198): It follows, therefore, that where the informational obligations under s. 10 (

b) have not been properly complied with by police, questions about whether a particular detainee exercised his or her right to counsel with reasonable diligence and/or whether he or she waived his or her facilitation rights do not properly arise for consideration.

Such questions are simply not relevant under s. 10( b ) (although they may be when it comes to considering whether the evidence obtained in the course of the Charter violation should be excluded under s. 24(2) of the Charter ). 104 Citing Stillman , the Crown acknowledges that evidence created through the use of an accused’s body is normally classified as conscriptive and, if obtained in violation of the Charter , will generally be excluded in consideration of trial fairness. In Stillman , Cory J., writing for the majority, explained the distinction between conscriptive and non-conscriptive evidence.

He wrote (at para. 77): The crucial element which distinguishes non-conscriptive evidence from conscriptive evidence is not whether the evidence may be characterized as “real” or not. Rather, it is whether the accused was compelled to make a statement or provide a bodily substance in violation of the Charter . 105 At para. 80, he explained that “[e]vidence will be conscriptive when an accused, in violation of his Charter rights, is compelled to incriminate himself at the behest of the state by means of a statement, the use of the body or the production of bodily samples.” 106 In R. v.

Fliss [52] , Binnie J., writing for the majority, identified the key issue as “the manner in which the evidence was obtained” (at para. 77). He continued in the next paragraph: The proper focus at this stage is therefore on the actions involved in obtaining the evidence rather than on the form in which the evidence exists. 107 The Crown argues that in this case, the circumstances of the accused’s taking of the sobriety tests lacked the element of compulsion that is crucial to the classification of the evidence as conscriptive. Although the accused was detained at the roadside when

he was asked to perform the sobriety tests, he was told “that they were voluntary tests. He didn’t have to, to do them if he didn’t want to.” 108 The trial judge was alive to the Stillman decision. He wrote (at para. 72): One can see that the issue is becoming narrower and more focused as to what evidence may be considered conscriptive or not conscriptive. Although that may be so, in my view it does not assist the Crown on the facts of this case. The plain meaning of the performance of sobriety tests by the accused surely is conscriptive by any of the above

definitions. 109 He reasoned that “the law would appear to be clear that conscriptive evidence will bring the administration of justice into disrepute” (at para. 79). He concluded (at para. 83): As a result of the Collins and Stillman definition of conscriptive evidence, the sobriety tests performed by the accused clearly fall within this category and thus affect the fairness of the trial.

Without the evidence of the sobriety tests the Crown cannot establish that the officer had reasonable and probable grounds for the subsequent brealthalyzer [ sic ] demand given the accused. (The trial judge later clarified his order – the evidence that was excluded was “both the evidence of the sobriety test and ultimately the Breathalyzer certificate.”) 110 The trial judge found that “this violation was not a serious one in that the officer acted in good faith” (at para. 74) when he addressed the second branch of the s. 24(2) analysis – the seriousness of the Charter breach.

However, the trial judge did not focus on the actions of the police officers in obtaining the evidence when he considered whether the evidence obtained as a result of the sobriety tests was conscriptive. He appears to have concluded that the evidence was conscriptive because it emanated from the accused, not because the accused had been compelled to perform the sobriety tests. 111 The trial judge erred in law when he concluded that the sobriety tests evidence was conscriptive without adverting to the crucial element that distinguishes conscriptive evidence from non-conscriptive evidence.

That conclusion is one that can be challenged on a

summary conviction appeal taken pursuant to s. 830 of the Code . 112 The circumstances at the roadside, in my view, do not raise a concern that the accused’s participation in the sobriety tests was compelled or coerced by Cst. Sutherland or his partner or by the authoritative character of police actions. The uncontroverted evidence is that the accused performed the tests voluntarily. Cst.

Sutherland’s clear indication to the accused that “[h]e didn’t have to, to do them if he didn’t want to” dispels any perception of intimidating or coercive police action at the roadside. 113 Had the trial judge considered the element of compulsion, he would have had to conclude that the accused had not been compelled to incriminate himself and that the evidence of the sobriety tests was non-conscriptive. 114 Having concluded that the sobriety tests evidence was non-conscriptive, its admission would not render the trial unfair: Stillman , at para. 119 .

I turn then to consider the seriousness of the breach and the effect of the admission of the evidence upon the repute of the administration of justice. 115 The trial judge found that “this violation was not a serious one in that the officer acted in good faith” (at para. 74). It will not be necessary to review again the events at the roadside. It is enough to say that the evidence overwhelmingly supports the conclusion that the breach of the accused’s s. 10 (

b) rights was not a serious one. 116 On the final question, in my view, the reputation of the administration of justice would be better served in this case by the admission of the evidence of the sobriety tests and the breathalyzer certificate. As I have commented upon above, the accused was driving erratically and dangerously. He had committed driving infractions. His driving was sufficient to raise the suspicion that his ability to drive was impaired.

He freely participated in the sobriety tests, after being informed that they were voluntary and that he didn’t have to perform them and after an abbreviated right to counsel caution. I think the fair-minded and reasonable-thinking person would be justifiably concerned and disturbed if the evidence was excluded at the accused’s trial. 117 I conclude that the trial judge erred in excluding the evidence of the roadside sobriety tests and the certificate of the breathalyzer analysis at the trial of the accused.

DISPOSITION 118 The appeal of the Crown is allowed, the verdict at trial is set aside and a new trial is ordered before a

summary conviction court other than the court that tried the accused in the first instance. _______________________________ J.A.

I agree: ________________________________J.A. I agree: _______________________________ J.A. [2] 1995 CanLII 150 (SCC) , [1995] 1 S.C.R. 254 [13] 1987 CanLII 84 (SCC) , [1987] 1 S.C.R. 265 [14] 1997 CanLII 384 (SCC) , [1997] 1 S.C.R. 607 [42] 1981 CanLII 11 (SCC) , [1981] 1 S.C.R. 2 [44] 1978 CanLII 32 (SCC) , [1978] 2 S.C.R. 736