R. v. Thompson

R. v. Thompson Collection Decisions of the Court of Appeal Date 2001-02-12 Docket numbers C32509 Judges Morden, John Wilson; Catzman, Marvin Adrian; Austin, Allan McNiece Subject Criminal Decision Content DATE: 20010212 DOCKET: C32509 COURT OF APPEAL FOR ONTARIO MORDEN, CATZMAN and AUSTIN JJ.A. BETWEEN: ) ) HER MAJESTY THE QUEEN ) ) ) Michael C. Rother and Paul Burstein, for the appellant Respondent ) David Finley, for the respondent ) - and - ) ) Morris Pistyner and Susanne Boucher, NEVILLE THOMPSON ) ) ) ) for the intervenor, Attorney General of Canada Appellant ) ) ) Heard: September 29, 2000 On appeal from the conviction imposed of Justice A. Paul Dilks dated June 23, 1999. MORDEN J.A.: [1] Neville Thompson appeals from his conviction by Dilks J., in proceedings by indictment, of failing or refusing to comply with the demand made to him by a peace officer under s.254(2) of the Criminal Code. There are two grounds of appeal: (1) The trial judge misapprehended the evidence in concluding that the appellant had willfully failed to provide a sample of his breath for the purposes of the roadside screening device; and (2) The trial judge erred in not holding that s.254(5), in so far as it relates to s. 254(2) of the Criminal Code, unconstitutionally infringes ss.7 and 10(b) of the Canadian Charter of Rights and Freedoms. [2] I set forth ss.7 and 10(b) of the Charter and subsections 254(2), (3) and (5) of the Code: Charter, ss. 7 and 10(b) 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 10. Everyone has the right on arrest or detention …. (b) to retain and instruct counsel without delay and to be informed of that right; and Criminal Code, s. – ss. 254(2), (3) and (5) (2) Where a peace officer reasonably suspects that a person who is operating a motor vehicle or vessel or operating or assisting in the operation of an aircraft or of railway equipment or who has the care or control of a motor vehicle, vessel or aircraft or of railway equipment, whether it is in motion or not, has alcohol in the person’s body, the peace officer may, by demand made to that person, require the person to provide forthwith such a sample of breath as in the opinion of the peace officer is necessary to enable a proper analysis of the breath to be made by means of an approved screening device and, where necessary, to accompany the peace officer for the purpose of enabling such a sample of breath to be taken. (3) Where a peace officer believes on reasonable and probable grounds that a person is committing, or at any time within the preceding three hours has committed, as a result of the consumption of alcohol, an offence under section 253, the peace officer may, by demand made to that person forthwith or as soon as practicable, require that person to provide then or as soon thereafter as is practicable (a) such samples of the person’s breath as in the opinion of a qualified technician, or (b) where the peace officer has reasonable and probable grounds to believe that, by reason of any physical condition of the person, (i) the person may be incapable of providing a sample of his breath, or (ii) it would be impracticable to obtain a sample of his breath, such samples of the person’s blood, under the conditions referred to in subsection (4), as in the opinion of the qualified medical practitioner or qualified technician taking the samples are necessary to enable proper analysis to be made in order to determine the concentration, if any, of alcohol in the person’s blood, and to accompany the peace officer for the purpose of enabling such samples to be taken. …. (5) Every one commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made to him by a peace officer under this section. [3] The facts, in so far they are relevant in this appeal, are briefly set out in my consideration of the first ground of appeal. (1) The submission that the trial judge misapprehended the evidence. [4] P.C. Shields on November 18, 1997 was operating a “Mobile RIDE Spotcheck” in a fully marked police cruiser on northbound Arrow Road near Finch Avenue in Metropolitan Toronto when she spotted the appellant’s vehicle proceeding northbound directly ahead of her. His vehicle was “hugging the white dotted line in between the lanes”. She activated the cruiser’s emergency lights and directed the appellant to pull over to the side of the road. [5] P. C. Shields engaged the appellant in a conversation concerning his licence and registration. She asked him if he had consumed any alcohol earlier that evening. He responded that he had consumed “one or two beers”. She noted that there was an odour of alcoholic beverage on his breath and that his eyes were red and bloodshot. In light of her observations and his response, she made a s.254(2) roadside breath sample demand. [6] The appellant made three apparent attempts to blow into the roadside screening device. On the first occasion, P.C. Shields did not hear the tone that the device was supposed to make nor could she hear any air passing through the mouthpiece. On the second and third occasion, air did enter the machine but, according to the code that came up on the screen in the device, without sufficient pressure to activate the device. She then arrested the appellant for failure to provide a proper sample. [7] The particular issue which is raised under this ground of appeal is that the trial judge erred in finding that P.C. Shields had checked for obstructions in the mouthpiece before the appellant’s apparent attempts to blow into it. Her evidence was that, although she had no specific memory of doing so, she did check for obstructions because this was her standard practice. [8] In his reasons the trial judge said: Counsel for the accused argues that one of the necessary elements of the charge is that the machine be in good working order, free from obstruction and that the Crown has failed to satisfy that beyond a reasonable doubt. He points out that the police officer could not be sure – in fact had no memory at all of having done that but was relying on her ordinary practice. My view of her evidence is that matters transpired as she related them, that she simply followed her usual practice in connection with unwrapping and certification of the mouthpieces and that there was no need to make a note to that effect. Notes are only made to assist the recollection. I find that on this occasion she did not depart from her usual practice, indeed there is nothing to suggest otherwise. [9] The trial judge did not misapprehend the evidence. If he accepted P.C. Shields’ evidence that it was her standard practice to check the mouthpiece and that she must have done so on the occasion in question, it was reasonably open to him to find, as he did, that she had checked it on the occasion in question. I would not give effect to this ground of appeal. 2. The Constitutionality of s.254(5) of the Criminal Code. (i) The Submissions of the Parties [10] This issue is raised in an unusual form in that the constitutionality of s.254(5) has been affirmed in an earlier decision of this court, R. v. Bhagwandat (1989), 22 M.V.R. (2d) 329. In Bhagwandat the court dismissed an appeal from a judgment reported at (1988 ), 10 M.V.R. (2d) 63 (Ont. Dist. Ct.) setting aside an acquittal on a charge of refusing to provide a breath sample and entering a conviction. The reasons of this court on the s.254(5) issue given by Brooke J.A. are brief and read as follows: The appeal has been carefully and fully argued. We are all of the opinion that this appeal fails. We think the argument is foreclosed by the judgment in R. v. Seo (1986), 54 O.R. (2d) 293, 38 M.V.R. 161, 51 C.R. (3d) 1, 27 D.L.R. (4th) 296, 13 O.A.C. 359, 25 C.C.C. (3d) 385, 20 C.R.R. 241 [leave to appeal to S.C.C. refused], affirmed by R. v. Hufsky, [1988] 1 S.C.R. 621, 4 M.V.R. (2d) 170, 63 C.R. (3d) 14, 84 N.R. 365, 27 O.A.C. 103, 40 C.C.C. (3d) 398, 32 C.R.R. 193, at 408 [C.C.C.], R. v. Thomsen, [1988] 1 S.C.R. 640, 4 M.V.R. (2d) 185, 63 C.R. (3d) 1, 27 O.A.C. 85, 84 N.R. 347, 40 C.C.C. (3d) 411, 32 C.R.R. 257, at 421-422 [C.C.C.], and by those judgments. We think the criminalization of refusal is a reasonable limit under s. 1 of the Canadian Charter of Rights and Freedoms, for similar reasons as those expressed by Le Dain J. in Hufsky, supra, at p. 409 [C.C.C.], and in Thomsen, supra, at p. 422[C.R.]. [11] The appellant submits that by reason of changes in the law since Bhagwandat, it is appropriate that this decision’s correctness should be reconsidered. The respondent and the intervenor made no submission on the stare decisis aspect of the appellant’s submission but they do submit that there has been no change in the law that casts doubt on the correctness of Bhagwandat. I accept that if there has been a change in the legal premises underlying the conclusion in Bhagwandat it would be proper to reconsider it. See Band, “Stare Decisis: Are Appellate Courts Bound by their Previous Decisions?” (1998), 20 Adv. Q. 344 at 351-352; and Cross and Harris, Precedent in English Law, 4th ed. (1991) at pp. 145-46. [12] The appellant submits that the reconsideration of the constitutionality of s.254(5), as it applies a s. 254(2) demand, is made necessary for the following reasons: (1) It was not until after Bhagwandat and the decisions referred to in it that the Supreme Court of Canada recognized, for the first time, that the scope of s. 7 of the Charter includes a general right against self-incrimination: R. v. Hebert (1990), 57 C.C.C. (3d) 1 (S.C.C.); (2) Subsequent to these decisions, the Supreme Court of Canada has come to recognize the importance of the “immediacy” component of s. 10(b) of the Charter and the unique relationship between the right to silence protected by s. 7 and the right to counsel guaranteed by s.10(b): R. v. Bartle (1994), 92 C.C.C. (3d) 289 (S.C.C.); and (3) This court’s reasoning in R. v. Bhagwandat has been overtaken by its own subsequent decisions in R. v. Milne (1996), 107 C.C.C. (3d) 118 (Ont. C.A.) and R. v. Coutts (1999), 136 C.C.C. (3d) 225 (Ont. C.A.). [13] The appellant submits that as a result of the subsequent developments there is a more profound infringement than existed at the time of Bhagwandat that can no longer be justified under s. 1 of the Charter. He concedes that it could be justified if s. 254(5) were replaced by a provision that would make the failing or refusing to comply with a s. 254(2) demand a basis for making a s. 254(3) breathalyzer demand. The trial judge’s succinct reasons on these issues are as follows: With respect to section 10(b), I am bound by the decision of the Ontario Court of Appeal in R. v. Bhagwandat (1989), 22 M.V.R. 329, the effect of which I do not consider to have in any way been diluted by anything said by the same court in R. v. Milne (1996), 107 C.C.C. (3d) 118, or in its recent unreported decision in R. v. Coutts [1997] O.J. 2013. There are no reported decisions which consider whether subsection 5 is in violation of an accused’s right to silence under section 7, since that right was determined by the Supreme Court of Canada in R. v. Hebert (1990) 57 C.C.C. (3d) 1, to be a free standing component principle of the rights enumerated in section 7. I am however greatly assisted by the Supreme Court of Canada decision in R. v. Higgins (1988), 45 C.C.C. (3d) 57, which dealt with fingerprinting and that of Hill J., of this court in R. v. F. (S) and A.G. For Canada et al 120 C.C.C. (3d) 260 which dealt with DNA evidence. In both cases the police action was found to be such an unobtrusive infringement of section 7 requirements as to fall squarely within the exception set out in the section, namely; except in accordance with the principles of fundamental justice. In both cases the police action was authorized by statute; so it was here. In the result, as it is here, there is no Charter violation under either section. The application should therefore be dismissed. [14] In R. v. Hebert, supra, McLachlin J. for the majority of the Supreme Court of Canada recognized a pre-trial constitutionally protected right to remain silent within the principles of fundamental justice in s. 7 of the Charter. This right has been elaborated upon in subsequent decisions which I shall consider later in these reasons. [15] McLachlin J. dealt with the relationship between ss. 7 and 10(b) of the Charter at p. 35 as follows: The scheme under the Charter to protect the accused’s pretrial right to silence may be described as follows. Section 7 confers on the detained person the right to choose whether to speak to the authorities or to remain silent. Section 10 (b) requires that he be advised of his right to consult counsel and permitted to do so without delay. The most important function of legal advice upon detention is to ensure that the accused understands his rights, chief among which is his right to silence. The detained suspect, potentially at a disadvantage in relation to the informed and sophisticated powers at the disposal of the state, is entitled to rectify the disadvantage by speaking to legal counsel at the outset, so that he is aware of his right not to speak to the police and obtains appropriate advice with respect to the choice he faces. Read together, ss. 7 and 10(b) confirm the right to silence in s. 7 and shed light on its nature. [16] Turning to s. 10(b) of the Charter, the appellant relies upon R. v. Bartle, supra, for the proposition that a person who is “detained” within the meaning of s. 10 is in “immediate” need of legal advice in order to protect his or her right against self-incrimination (p. 300) and for its repetition of the important link between the right to remain silent under s. 7 and the right to counsel under s. 10(b). [17] In R. v. Milne, supra, this court held that there was nothing constitutionally impermissible in compelling detained motorists to participate in a roadside sobriety test under s. 48 of the Highway Traffic Act without first according them the opportunity to exercise their s. 10(b) Charter rights – so long as the evidence was not used to prove the Crown’s case against the accused motorist at trial. The appellant relies upon the following passage in the reasons of Moldaver J.A. for the court at pages 130 and 131: The fact that the evidence provided by the roadside A.L.E.R.T. device cannot be introduced against the motorist is, in my opinion, a critical factor in the s. 1 analysis. But for this limitation, I doubt that roadside A.L.E.R.T. testing would have passed any of the three branches of the proportionality test provided by Oakes, supra…. Accordingly, I have no trouble finding proportionality in so far as the liberty interest component of s. 10(b) is concerned. However, the same cannot be said about the “risk of incrimination” component if, in fact, the motorist can be compelled to create self-incriminating evidence that can later be used at trial. If roadside test results could be used in this manner, this would overshoot their limited objective. That objective, it will be recalled, is to provide the police with the tools needed to remove impaired drivers from the highway immediately and thereby avoid the calamitous results likely to occur if they are allowed to proceed. The objective is not to convict impaired drivers at any cost. If it were, there would be no reason for insisting that the motorist be given his or her Charter rights when the investigation moves to the arrest stage for impaired driving or to a request for a breathalyzer demand pursuant to s. 254 of the Criminal Code. And yet, the law is clear that, at this juncture, the motorist is entitled to full protection of the rights accorded by the Charter: R. v. Therens (1985), 18 C.C.C. (3d) 481, 18 D.L.R. (4th) 655, [1985] 1 S.C.R. 613. That protection, I suggest, would be hollow indeed if the state could simply turn around and use the results of the roadside A.L.E.R.T. test to convict the motorist of over 80, or, as in this case, use the inability of the appellant to adequately perform the physical co-ordination tests to convict the appellant of impaired driving. [18] This rationale was reiterated by Moldaver J.A. in R. v. Coutts, supra, in the context of a case where the prosecution sought to use evidence from roadside sobriety testing to impeach the accused. [19] The appellant submits that the decisions in Milne and Coutts make clear that the authorities relied upon by this court in Bhagwandat do not stand for the proposition that denying a detained motorist of his or her s. 10(b) right can be justified for any and all evidence-gathering purposes. He accordingly submits that, in addition to the significant changes to the scope of ss. 7 and 10(b) Charter rights reflected in Hebert and Bartle, this court’s decisions in Milne and Coutts require that Bhagwandat be reconsidered. [20] The responses of the respondent and the intervenor to the appellant’s submissions on s. 7 of the Charter are as follows. First, the penalization of a refusal to comply with a demand for roadside breath sample, by s. 254(5) of the Code, does not give rise to a prosecution based on compelled self-incriminatory evidence because the state does not compel the motorist to refuse to comply. In the context of a charge under s. 254(5), the evidence of the refusal is not evidence that the state attempted to compel from the individual. [21] Second, they submit, if the refusal is compelled evidence it is not the type of compelled evidence protected by s. 7. [22] Third, having regard to recent developments in the case law, the admissibility of the refusal into evidence would not violate the principle against self-incrimination. [23] With respect to s. 10(b) of the Charter, they submit that because the roadside breath sample demand does not infringe the right against self-incrimination there is no infringement of s. 10(b) beyond what the Supreme Court of Canada found in R. v. Thomsen (1988), 40 C.C.C. (3d) 411. [24] Finally, they submit that if there are Charter infringements beyond what was recognized in R. v. Thomsen, they are justified under s. 1 of the Charter. [25] In my respectful view, although there is internal logic in the submission that the demand for roadside breath sample does not give rise to a prosecution based on compelled self-incriminatory evidence because the state does not compel the motorist to refuse to comply, I do not think that this is responsive to the appellant’s submission. His submission is that the criminalization of a refusal by s. 254(5) is, in itself, an infringement of the right against self-incrimination and the right to counsel. The appellant does not challenge the demand part of the statutory scheme (s. 254(2)) but submits that the penalization part of it (s. 254(5)) is unconstitutional and not justifiable under s. 1 of the Charter. He submits that s. 254(5) would be justifiable if it provided that the legal consequence of failure or refusal to comply with a s. 254(2) demand were that the motorist be required to submit a s. 254(3) (breathalyzer) demand. Put differently, I do not understand the appellant to be challenging his conviction because it is based on compelled self-incriminatory evidence but, rather, because the offence-creation provision, s. 254(5), is an unjustifiable part of a scheme that does infringe on the appellant’s s. 7 and 10 (b) Charter rights. (ii) Analysis [26] At the outset, I think that it would be helpful to review, briefly, what was decided by the Supreme Court of Canada in R. v. Thomsen, supra, which was the major underpinning of Bhagwandat. The charge in that case was the same as that in Bhagwandat and in this one – refusing to comply with a roadside breath demand. The two questions raised on the appeal in Thomsen were (1) whether the roadside breath demand resulted in a detention within the meaning of s. 10(b) of the Charter and (2) if so, whether the right to retain and instruct counsel without delay and to be informed of that right was subject, in the case of a roadside breath test demand, to a reasonable limitation under s. 1 of the Charter. [27] On the subject of detention under s. 10 of the Charter Le Dain J. said for the court at p. 418: In my opinion, the s. 234.1(1) demand [now s. 254(2), in altered form] by the police officer to the appellant to accompany him to his car and to provide a sample of breath into a roadside screening device fell within the above criteria [set out in R. v. Therens (1985), 18 C.C.C. (3d) 481 (S.C.C.)]. The demand by which the officer assumed control over the movement of the appellant was one which might have significant legal consequence because, although the evidence provided by the roadside screening device could not be introduced against the appellant, it might provide the basis for a s. 235(1) breathalyzer demand. For this reason, and given the criminal liability under s. 234.1(2) [now s. 254(5) in altered form] for refusal, without reasonable excuse, to comply with the demand, the situation was one in which a person might reasonably require the assistance of counsel. The criminal liability for refusal also constituted the necessary compulsion or coercion to make the restraint of liberty a detention. [28] Le Dain J.’s recognition of the potential “legal consequence” flowing from the demand and the resulting significance of the role of counsel were an important functional consideration in his determination that there was a “detention” in the situation before the court. In reviewing the history of the case Le Dain J. noted at p. 415 that the trial judge, in acquitting the appellant, had held that counsel might have advised the appellant to comply with the demand. [29] I would also note that in Thomsen the constitutionality of s. 234.1 of the Code was an issue. This included both subsection (1), the demand provision (now, in altered form, s. 254(2)) and subsection (2), the offence-creation provision (now, s. 254(5)). Since these provisions are essential parts of one legislative scheme, it is difficult to see how the constitutionality of subsection (1) could be considered apart from that of subsection (2). [30] Le Dain J. held that the breach of s. 10(b) of the Charter was justified under s. 1 of the Charter. He said at pp. 421-22: The importance of the legislative purpose to be served by s. 234.1(1) of the Code and the necessary relationship to it of roadside breath testing under circumstances which do not permit an opportunity for contact with counsel are disclosed by the s.1 material that was placed before the court by the respondent in the appeal in R. v. Hufsky, ante, p. 398 [of 40 C.C.C. (3d)], and relied on in this appeal, which was argued at the same time. It was the same material that was before the Ontario Court of Appeal in Seo [R. v. Seo (1986), 25 C.C.C. (3d) 385], although apparently grouped together somewhat differently in the first seven volumes. The material, consisting of statistics, reports, studies, articles, Canadian legislative history and foreign legislation with respect to the problem of impaired driving, is referred to in considerable detail by Finlayson J.A. in Seo, and I would respectfully adopt the following statement by him at pp. 398-9 of the conclusions that may be drawn from the material: (1) The problem of the drinking driver has been recognized by the Ministers of Justice of Canada and by experts in traffic accident research for many years. (2) The problem of the drinking driver has not been controlled. It is very serious and must be addressed by urgent measures. (3) There is a direct relationship between drinking drivers and automobile accidents. (4) The severity of accidents increases almost in direct ratio to the quantity of alcohol consumed. (5) The highest frequency of impairment is found late in the evening and in the early morning and the degree of impairment and the severity of accidents is again almost in direct relationship to the time of day. (6) The number of accidents increases dramatically at a blood level reading of 80 mg. per 100 ml. of blood. (7) The number and severity of accidents is very pronounced at the so-called moderately impaired level of between 80 and 120 mg. (8) The detection of drivers who are impaired at the moderate level of impairment through observation by trained police officers is ineffective. (9) Increased penalties have not been an effective deterrent. (10) The most effective deterrent is the strong possibility of detection. 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. [31] I shall at this point address the appellant’s case based on s. 7. If a motorist were to fail the roadside screen test he or she would be obliged to submit to a breathalyzer test, the result of which could be the basis of a conviction for impaired driving or driving “over 80” and a sentence of imprisonment. The threat of imprisonment engages s. 7: Reference re: s. 94(2) of the Motor Vehicle Act (1985), 23 C.C.C. (3d) 289 (S.C.C.). There would, however, be no ultimate infringement of s. 7 if the deprivation of liberty were in accordance with the principles of fundamental justice. As mentioned earlier, R. v. Hebert held that the right to remain silent is a principle of fundamental justice. A deprivation of liberty resulting from an infringement of this right would not be in accordance with the principles of fundamental justice. [32] The right to remain silent has evolved in subsequent cases into a general principle against self-incrimination. With respect to this development, I think it is sufficient to refer to what Iacobucci J. said for the majority of the Supreme Court of Canada in R. v. White (1999), 135 C.C.C. (3d) 257 at 274-75: It is now well-established that there exists, in Canadian law, a principle against self-incrimination that is a principle of fundamental justice under s. 7 of the Charter. The meaning of the principle, its underlying rationale, and its current status within Canadian law have been discussed in a series of decisions of this Court, notably Thomson Newspapers, supra; R. v. Hebert, [1990] 2 S.C.R. 151, 57 C.C.C. (3d) 1; R. v. P. (M.B.), [1994] 1 S.C.R. 555, 89 C.C.C. (3d) 289, 113 D.L.R. (4th) 461, per Lamer C.J.; R. v. Jones, [1994] 2 S.C.R. 229, 89 C.C.C. (3d) 353, 114 D.L.R. (4th) 645, per Lamer C.J.; S. (R.J.), supra; British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3, 97 C.C.C. (3d) 505, 123 D.L.R. (4th) 462; and Fitzpatrick, supra. …. In Jones, supra, the principle against self-incrimination was defined as an assertion of the fundamental importance of individual freedom. As the Chief Justice stated, at pp. 248-49: The principle against self-incrimination, in its broadest form, can be expressed in the following manner: “… the individual is sovereign and… proper rules of battle between government and individual require that the individual… not be conscripted by his opponent to defeat himself…” (Wigmore on Evidence, vol.8 (McNaughton rev. 1961), § 2251, at p. 318.) …. Any state action that coerces an individual to furnish evidence against him or herself in a proceeding in which the individual and the state are adversaries violates the principle against self-incrimination. Coercion, it should be noted, means the denial of free and informed consent. …. The definition of the principle against self-incrimination as an assertion of human freedom is intimately connected to the principle’s underlying rationale. As explained by the Chief Justice in Jones, supra, at pp. 250-51, the principle has at least two key purposes, namely to protect against unreliable confessions, and to protect against abuses of power by the state. There is both an individual and a societal interest in achieving both of these protections. Both protections are linked to the value placed by Canadian society upon individual privacy, personal autonomy and dignity: see, e.g., Thomson Newspapers, supra, at p. 480, per Wilson J.; Jones, supra, at pp. 250-51, per Lamer C.J., and Fitzpatrick, supra, at paras. 51-52, per La Forest J. A state which arbitrarily intrudes upon its citizens’ personal sphere will inevitably cause more injustice than it cures. [33] Following this, at pages 275-77, Iacobucci J. stressed the importance of context in determining the applicability of the principle in a given case: That the principle against self-incrimination does have the status as an overarching principle does not imply that the principle provides absolute protection for an accused against all uses of information that has been compelled by statute or otherwise. The residual protections provided by the principle against self-incrimination as contained in s. 7 are specific, and contextually sensitive….The principle against self-incrimination demands different things at different times, with the task in every case being to determine exactly what the principle demands, if anything, within the particular context at issue. …. It is the balancing of principles that occurs under s. 7 of the Charter that lends significance to a given factual context in determining whether the principle against self-incrimination has been violated. In some contexts, the factors that favour the importance of the search for truth will outweigh the factors that favour protecting the individual against undue compulsion by the state….In every case, the facts must be closely examined to determine whether the principle against self-incrimination has truly been brought into play by the production or use of the declarant’s statement. [34] In the subsequent Supreme Court of Canada decision of R. v. Darrach (2000), 148 C.C.C. (3d) 97 Gonthier J. for the court, in his discussion of the principle against self-incrimination as a principle of fundamental justice, said at p. 113-114: These cases [R. v. Mills, [1999] 3 S.C.R. 668 and R. v. White, supra,] are part of the Court’s jurisprudence that has consistently held that the principles of fundamental justice enshrined in s. 7 protect more than the rights of the accused. As McLachlin J. wrote in Seaboyer, supra, at p. 603: The principles of fundamental justice reflect a spectrum of interests, from the rights of the accused to broader societal concerns … The ultimate question is whether the legislation, viewed in a purposive way, conforms to the fundamental precepts which underlie our system of justice. One of the implications of this analysis is that while the right to make full answer and defence and the principle against self-incrimination are certainly core principles of fundamental justice, they can be respected without the accused being entitled to “the most favourable procedures that could possibly be imagined” (R. v. Lyons, [1987] 2 S.C.R. 309 at p. 362, 37 C.C.C. (3d) 1, 44 D.L.R. (4th) 193; cited in Mills, supra, at para. 72). Nor is the accused entitled to have procedures crafted that take only his interests into account. Still less is he entitled to procedures that would distort the truth-seeking function of a trial by permitting irrelevant and prejudicial material at trial. [35] It may be asked whether self-incrimination is involved in this case. Does the use of the s. 254(2) test result involve self-incrimination? It is clear that the results of a failed test cannot be admitted at a trial of the motorist. The motorist cannot be convicted based on these results. The results, however, can lead to evidence (that provided on a breathalyzer test) upon which the motorist could be convicted. This potential effect is sufficient, in my view, to require that ss. 254(2) and (5) be subjected to an analysis to determine “whether the principle against self-incrimination has truly been brought into play” (R. v. White at p. 277) by the use of the roadside screening test result. The inadmissibility of the results at a trial is a factor to be taken into account in this analysis. [36] It is important to recognize that the basic purpose of s. 254(2) is more preventive than it is prosecutorial. The “importance of the search for truth” (R. v. White at p. 277), which is to be weighed in the balance, does not relate primarily to the conviction of the motorist but, rather, in the case of a “failed” result, to getting the motorist then and there off the road. The point is clearly made in R. v. Smith (1996), 105 C.C.C. (3d) 58 (Ont. C.A.), a case concerned with the validity of police questions to motorists detained by police officers under s. 48 of the Highway Traffic Act to justify making a demand under s. 254 of the Criminal Code. At p. 81 Doherty J.A. said: In addressing the appellant’s s. 7 argument, I must also take into consideration the activity in which the appellant was engaged and the nature of the police function in issue. Driving is a heavily regulated activity. The police are engaged, not so much in after-the-fact investigations of completed crimes, but in pre-emptive investigations intended to avoid the serious harm caused by those who are involved in dangerous ongoing criminal conduct. The police’s goal is to catch the drinking driver at the roadside and not at the scene of the accident. Drivers expect to be stopped and questioned by the police concerning matters relating to the operation of their vehicles. That expectation is part and parcel of the privilege of operating a motor vehicle. [Emphasis added.] [37] Further, the degree of intrusion in complying with the demand on the convenience of the motorist is minimal. In R. v. Frohman; R. v. M.C.O. (1987), 35 C.C.C. (3d) 163 (Ont. C.A.) Cory J.A. said for this court at p. 175: The right to drive, important as it may be, is one that must be licensed and controlled for the protection of society. Section 234.1 of the Code strikes a very reasonable balance between the rights of an individual and those of society. Where the circumstances are such that a roadside test is required it must be taken speedily or the very purpose of the section is frustrated. If the individual passes the test then the inconvenience is minimal, the delay no more than that caused a driver by heavy traffic or a red traffic signal. [38] Along the same lines, Cameron J.A. in R. v. Talbourdet (1984), 12 C.C.C. (3d) 173 (Sask. C.A.) at p. 181 said: This is a minor inconvenience and the person upon whom such a demand for clarification has been made runs no risk of being found guilty of any offence by submitting to the [roadside] test. If he passes the test he is free to go on his way; if the fails it then, of course, there are reasonable and probable grounds to believe that he may be guilty of an offence, and, in that event, a peace officer may make a further demand of him, namely, that he submit to a more definitive test by means of a breathalyzer machine. And at that stage he has a right to consult a lawyer: R. v. Therens. [39] Accepting that the compelled production of a breath sample may implicate the principle against self-incrimination (R. v. Stillman (1997), 113 C.C.C. (3d) 321 (S.C.C.) at pp. 350, 353, 355, and 357-58), it is not as serious an intrusion as a coerced interrogation. In R. v. F.(S.) (1997), 120 C.C.C. (3d) 260 (Ont. Ct. Gen. Div.) (holding of constitutionality upheld (1999), 141 C.C.C. (3d) 225 (Ont. C.A.)) Hill J. said at p. 309: While, after Stillman, the self-incrimination principle is implicated in testimonial compulsion and in the conscriptive coercion to provide a biological sample for testing, there surely persists a continuum in respect of our threshold for compulsion by the state in criminal investigations. Testimonial compulsion attacks free speech and the right to remain silent. Our traditions have a long history of abhorrence for coerced interrogation and the systemic extraction of self-incriminatory information prior to trial. Biological specimens, pre-existing seizure by the state, do not raise the same degree of concern as conscriptive probing of the mind and the use of the individual as a testimonial resource. The mind is the individual’s most private sanctum: S. (R. J.) v. The Queen, supra at 114-115 per L’Heureux-Dubé J. (in dissent). [40] In Stillman, supra, Cory J. said at p. 356 : It is repugnant to fair minded men and women to think that police can without consent or statutory authority take or require an accused to provide parts of their body or bodily substances in order to incriminate themselves. The recognition of the right to bodily integrity and sanctity is embodied in s.7 of the Charter which confirms the right to life, liberty and the security of the person and guarantees the equally important reciprocal right not to be deprived of security of the person except in accordance with the principles of fundamental justice. This right requires that any interference with or intrusion upon the human body can only be undertaken in accordance with principles of fundamental justice. Generally that will require valid statutory authority or the consent of the individual to the particular bodily intrusion or interference required for the purpose of the particular procedure the police wish to undertake. It follows that the compelled use of the body or the compelled provision of bodily substances in breach of a Charter right for purposes of self-incrimination will generally result in an unfair trial just as surely as the compelled or conscripted self-incriminating statement. So soon as that is said, it is apparent that a particular procedure may be so unintrusive and so routinely performed that it is accepted without question by society. Such procedures may come under the rare exception for merely technical or minimal violations referred to earlier. For example, assuming that finger-printing is conscriptive, it is minimally intrusive and has been recognized by statute and practice for such an extended period of time that this Court readily found that it was acceptable in Canadian society. See the carefully crafted reasons of La Forest J. in Beare, supra. Similarly, the Criminal Code provisions pertaining to breath samples are both minimally intrusive and essential to control the tragic chaos caused by drinking and driving. [Emphasis added.] [41] Although these remarks were made in the context of reasons relating to the fairness of the trial factor under s. 24(2) of the Charter they are, nonetheless, directly relevant to the reach of the principle against self-incrimination under s. 7. [42] I shall now briefly refer to two decisions relied upon by the trial judge for his conclusion that there was no infringement of s. 7. In R. v. Beare (1988), 45 C.C.C. (3d) 57 (S.C.C.) (referred to in the trial judge’s reasons as R. v. Higgins) the Supreme Court upheld the validity of the finger-printing provisions in the Identification of Criminals Act, R.S.C. 1970, c. I – 1 and the Criminal Code. This decision is of limited assistance because it was decided before Hebert and the recognition of the right to silence as a principle of fundamental justice. Further, while it held that the legislation was in accordance with the principles of fundamental justice, the basic s. 7 right with which it was concerned was that of security of the person in the immediate loss of liberty associated with finger-printing. Although the court observed at p. 67 that one of the several purposes of taking finger-prints was “linking the accused to the crime where latent prints are found at the scene or on physical evidence” it did not discuss matters relating to the self-incrimination aspect. [43] The other decision upon which the trial judge relied was that of Hill J. in R. v. F.(S.), supra. At pp. 303-310 Hill J. gave reasons for upholding the DNA warrant provisions of the Criminal Code against the challenge that they were not in accord with the principle against self-incrimination. This decision supports the view that the principle is not infringed in this case but it should be noted that the DNA warrant section included a provision for judicial approval – a feature, of course, not present in this case. On appeal, this court, per Finlayson J.A., rejected the s. 7 challenge on the basis that the s. 8 challenge (unreasonable search and seizure) had been rejected: (2000), 141 C.C.C. (3d) 225 at 237. [44] I do not think that R. v. Milne, supra, relied upon by the appellant, supports his position. I note that it was decided after R. v. Hebert but it did not, at least expressly, consider the principle against self-incrimination. It held that s. 48 of the Highway Traffic Act, which authorizes roadside sobriety tests, did not infringe s. 10(b) of the Charter because the evidence of the tests could not be used at the trial to prove impairment. Their only legal use was as “an investigative tool to allow police to remove impaired drivers from the highway immediately” (p. 127). The administration of these tests did not render any subsequent trial unfair because the evidence of the test was not admissible at the trial (p. 128). By analogy it can be said that similarly the roadside screen tests do not result in an unfair trial. See also R. v. Coutts, supra, para. 17. [45] In R. v. Fitzpatrick (1995), 102 C.C.C. (3d) 144 (S.C.C.) LaForest J. for the court at p. 162 confirmed that “the two fundamental purposes behind the principle against self-incrimination” are (1) to protect against unreliable confessions and (2) to protect against abuse of power by the state and that “any limits on the principle against self-incrimination should be determined by reference to these two underlying rationales”. In my view, neither of these rationales are implicated in the administration of a roadside screening test. I refer to the reasoning in R. v. White, supra, at pp. 281-283, which was concerned with the compelled accident report which was submitted to be admissible at trial, to indicate how different the present case is from that in White. In White the court found both the risk of unreliable confessions and the abuse of state power to be relevant to the circumstances of the case. [46] In the present case neither is the roadside test result a confession nor does the element of compulsion create a risk that the result could be false. With respect to abuse of state power, I do not think that the possibility is real and serious that permitting the use of compelled roadside breath test results, not as evidence at trial but as the basis for making a breathalyzer demand, “might increase the likelihood of abusive conduct by the state” (R. v. White at p. 282). Further, the test results are evidence of objective facts and not “a personal narrative of events, emotions and decisions that are extremely revealing of the declarant’s personality, opinions, thoughts, and state of mind” (R. v. White at p. 283). [47] R. v. Fitzpatrick and R. v. White also referred to the factors of coercion and of adversarial relationship as being relevant in the determination of the application of the principle against self-incrimination in a case. In White, the court, with respect to accident reports, held the coercion factor to be a neutral one. For substantially the same reasons as were given in White, I would think that it is a neutral one also in the present case, although the presence of detention in this case indicates that there may be some element of coercion. [48] With the respect to the factor of adversarial relationship, I would think that it, or at least an inquisitorial relationship, is present in this case. [49] In connection with the preventive purpose of the legislation, it will be recalled that the principles of fundamental justice take into account more than just the interests of the accused person: R. v. Darrach, supra. In the present case the relevant interests, in addition to those of the detained motorist and the broad interest of the state in the protection of the public, are the very immediate interests of those motorists and pedestrians in the vicinity of the detained motorist who are involuntarily subject to the perils created by impaired drivers. They have a real interest in the police having pre-emptive investigative power. In short, in the context relevant to this case, the factors that favour the search for truth (to ascertain whether the driver is a danger) clearly outweigh the minimal intrusion on the right of the driver against undue compulsion by the state. R. v. White, supra, at p. 277. [50] When all of the foregoing is taken into account, particularly (a) the preventive purpose of the legislation, (b) the inadmissibility of the roadside test result at trial, and (c) the absence of the two underlying rationales of the principle against self-incrimination (risk of false confessions and abuse of state power), I do not think that the right against self-incrimination is infringed in this case. [51] I turn now to s. 10(b) of the Charter. Because I have concluded that ss. 254(2) and (5) do not infringe s.7, there is no infringement of s. 10(b) beyond what the Supreme Court found in R. v. Thomsen. The comments in R. v. Bartle, supra, R. v. Milne, supra and R. v. Coutts, supra, relating the right against self-incrimination to the right to counsel, presume the existence of the right against self-incrimination in these circumstances. Milne and Coutts, in particular, were concerned with the possibility of the use of the “conscriptive evidence” at trial. That is not the situation in the present case. [52] Further, I do not think that what is said on “the scope of available legal advice in the impaired driving context” in Bartle at p. 319 in the context of the court’s s. 24(2) analysis, is of significance in the present case. The court confirmed that it was “necessarily limited”. I have quoted what Le Dain J. said in Thomsen on the relevance of legal advice in that case. It does not indicate a diminished view of the potential of s. 10(b) compared to that in Bartle. It will be recalled that the defendant in Thomsen had been acquitted at the trial because the trial judge thought that his counsel might have advised him to comply with the demand. Section 1 of the Charter [53] If I am wrong in my conclusion that the extent of the Charter infringement in this case is not different from that in Bhagwandat, and cases cited in it, it will be necessary to consider the question of the continued justification of the infringement under s. 1 of the Charter. I shall do so briefly. [54] I note that there is no issue raised by the appellant that resort to s. 1 is not possible in a case where the principles of fundamental justice have been infringed. In fact, the narrow issue raised by the appellant, as indicated earlier in these reasons, is that the infringement would be justified if what he submits is a less intrusive legal consequence were substituted for that of a conviction for failing or refusing to comply with the demand. [55] I would also note that Hill J. in R. v. F.(S.), supra, at page 310 was of the view that s. 1 could have some application where there was an infringement of the principles of fundamental justice. The subject is dealt with briefly in Hogg, Constitutional Law of Canada, Loose-leaf ed. vol. 2 in para. 35.14. In R. v. Mills (1999), 139 C.C.C. (3d) 321 (S.C.C.) at 359-361 there is a comparison of the balancing of the principles of fundamental justice under s. 7 and the balancing of interests under s. 1 of the Charter. [56] It is not denied that the objective of ss. 254(2) and (5) of the Code is of sufficient importance to warrant overriding a constitutionally protected right (R. v. Oakes (1986), 24 C.C.C. (3d) 321 (S.C.C.) at 348). It relates to concerns that are “pressing and substantial”. This is reflected in many cases since R. v. Seo, supra, which contains an organized presentation of the data on the subject. Fresh data of a similar nature was filed on this appeal. [57] In R. v. Bernshaw (1995), 95 C.C.C. (3d) 193 (S.C.C.) at 204-205 Cory J. said in a concurring judgment: Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country. …. These dry figures are mute but shocking testimony demonstrating the tragic effects and devastating consequences of drinking and driving. The social cost of the crime, great as it is, fades in comparison to the personal loss suffered by the victims of this crime through the death and injury of their loved ones. The gravity of the problem and its impact on Canadian society has been so great that Criminal Code amendments were enacted aimed at eliminating or, at least, reducing the problem. [58] What the appeal on the application of s. 1 comes down to is the question of minimal impairment of the right in question. The appellant submits that the criminalization of a refusal does not meet the minimal impairment requirement of justification. In this regard, he submits that the s. 254(5) offence enforcement requirement should be replaced by the creation of a presumption that the act of failing or refusing to provide a roadside breath sample would be the equivalent of “failing” the test, which would justify a s. 254(3) breathalyzer demand. [59] We received submissions on each side on whether, in fact, the appellant’s proposal would result in lesser impairment and also on whether it would be as effective in carrying out the legislative policy as the current provision. This very issue has been dealt earlier by Kurisko D.C.J. in R. v. Currie (1988), 8 M.V.R. (2d) 176 (Ont. Dist. Ct.) in which he addressed the trial judgment in R. v. Bhagwandat, supra, which had declared s. 254(5) to be unconstitutional. At p. 182 Kurisko D.C.J. said: If as stated in Bhagwandat, “the least intrusive means” (p. 17) were substituted for the foregoing by making “the refusal of a roadside test the equivalent of taking and failing the roadside test” (p.17, emphasis original) there would undoubtedly be an increase in the frequency of roadside refusals by drivers willing to “take their chances” in hopes of “getting off” as happened in this case. During busy periods (such as Christmas) the overload on trained personnel and limited equipment resulting from such refusals would undoubtedly tax the detailed, time consuming breathalyzer procedure beyond its capacity to analyse the increased number of breath samples within the mandatory 2-hour time limit imposed by Parliament. On these occasions the objective of the R.I.D.E. program would surely be severely crippled. [60] I agree with these observations. This is a case where a degree of deference should be afforded to the legislature. In R. v. Butler (1992), 70 C.C.C. (3d) 129 (S.C.C.) at pp. 164-65, Sopinka J. said for the court that a “perfect” solution is not necessary under s. 1 but simply that the scheme be appropriately tailored in the context of the right that is infringed. He quoted the following from Irwin Toy Ltd. v. Quebec (Attorney General) (1989), 58 D.L.R. (4th) 577 (S.C.C.) at 629-30: While evidence exists that other less intrusive options reflecting more modest objectives were available to the government, there is evidence establishing the necessity of a ban to meet the objectives the government had reasonably set. This court will not, in the name of minimal impairment, take a restrictive approach to social science evidence and require legislatures to choose the least ambitious means to protect vulnerable groups. [61] When this is taken into account and the infringement of the principle against self-incrimination, if there be one, is so indirect, I think that s. 254(5) should be held to be justified under s. 1. [62] For these reasons, I would dismiss this appeal. “J.W. Morden J.A.” “I agree: M.A. Catzman J.A.” “I agree A.M. Austin J.A.” Released: February 12, 2001