R. v. Grant (P.R.) (1991), 93 Nfld. & P.E.I.R. 181 (SCC);
292 A.P.R. 181
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
Her Majesty The Queen (appellant) v. Peter Richard Grant (respondent)
(No. 21825)
Indexed As: R. v. Grant (P.R.)
Supreme Court of Canada
Lamer, C.J.C., Sopinka, Gonthier, Cory and Iacobucci, JJ.
October 17, 1991.
Summary:
The accused was charged with refusing an A.L.E.R.T. demand. He was acquitted in Provincial Court because he had been denied his right to counsel guaranteed by s. 10(b) of the Charter. The Crown appealed.
In a decision reported 79 Nfld. & P.E.I.R. 158; 246 A.P.R. 158; 48 C.C.C.(3d) 573; 15 M.V.R.(2d) 343, the Prince Edward Island Supreme Court, Trial Division, set aside the acquittal on the ground that an A.L.E.R.T. demand was a valid limit on the Charter right to counsel and ordered a new trial. The accused appealed.
The Prince Edward Island Supreme Court, Appeal Division, in a decision reported 80 Nfld. & P.E.I.R. 36; 249 A.P.R. 36; 53 C.C.C.(3d) 46; 73 C.R.(3d) 233; 45 C.R.R. 175; 19 M.V.R.(2d) 186, allowed the appeal and restored the acquittal. The Crown appealed.
The Supreme Court of Canada dismissed the appeal.
Civil Rights – Topic 3604
Detention and imprisonment – Detention – What constitutes – A police officer stopped and questioned the accused on suspicion of driving while disqualified – He subsequently suspected the accused of drunk driving and gave an A.L.E.R.T. demand – He had the accused wait in the police vehicle for half an hour until the necessary equipment arrived – He did not inform the accused at any time of his right to counsel – The Supreme Court of Canada opined that the initial detention and the subsequent detention were a “detention” within the meaning of s. 10(b) of the Charter – See paragraph 23.
Civil Rights – Topic 4610
Right to counsel – Impaired driving – Demand for breath sample – A.L.E.R.T. test – A police officer stopped and questioned the accused on suspicion of driving while disqualified – He subsequently suspected the accused of drunk driving and gave an A.L.E.R.T. demand – He kept the accused in the police vehicle for half an hour until the equipment arrived – At no stage was the accused informed of his right to counsel – The Supreme Court of Canada held that the accused’s s. 10(b) Charter right to counsel was infringed – See paragraphs 23 to 24.
Criminal Law – Topic 88
Estoppel – When applicable – The accused was charged with driving while disqualified and with refusing an A.L.E.R.T. demand – He was acquitted on the first charge because the Crown failed to prove beyond a reasonable doubt that the accused was driving the vehicle – He was acquitted on the second charge because of infringement of his right to counsel – The Crown appealed the acquittal on the refusal charge – The Supreme Court of Canada held that the Crown was estopped from challenging the refusal acquittal because of the conclusive finding that the accused was not driving the vehicle – See paragraphs 25 to 30.
Criminal Law – Topic 1386.1
Motor vehicle – Impaired driving – Roadside screening test – Demand – A police officer made a demand that the accused submit to an A.L.E.R.T. test – The roadside screening device was delivered about half an hour later – The accused refused to take the test and was charged with refusal contrary to s. 238(5) of the Criminal Code (now s. 254(5)) – The Supreme Court of Canada held there was not a valid demand because it was not a demand to provide a sample forthwith or immediately – Accordingly, the accused was under no obligation to comply and did not commit an offence – See paragraph 21.
Cases Noticed:
R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 40 C.C.C.(3d) 411; 63 C.R.(3d) 1; 4 M.V.R.(2d) 185, refd to. [para. 5].
R. v. Collins, [1987] 1 S.C.R. 265; [1987] 3 W.W.R. 699; 74 N.R. 276; 33 C.C.C.(3d) 1; 56 C.R.(3d) 193; 13 B.C.L.R.(2d) 1; 38 D.L.R.(4th) 508; 28 C.R.R. 122, refd to. [para. 11].
R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321; 19 C.R.R. 308, refd to. [para. 15].
R. v. Therens, [1985] 1 S.C.R. 613; 40 Sask.R. 122; 59 N.R. 122; 18 C.C.C.(3d) 481; 45 C.R.(3d) 97; 18 D.L.R.(4th) 655; [1985] 4 W.W.R. 286; 32 M.V.R. 153, refd to. [para. 23].
R. v. Grdic, [1985] 1 S.C.R. 810; 59 N.R. 61, refd to. [para. 29].
R. v. Carlson, [1970] 3 O.R. 213 (H.C.), refd to. [para. 29].
Statutes Noticed:
Canadian Charter of Rights and Freedoms, 1985, sect. 1, sect. 10(b) [para. 5]; sect. 24(1) [para. 23]; sect. 24(2) [para. 10].
Criminal Code, R.S.C. 1970, c. C-34, sect. 234.1(1) [para. 9]; sect. 238(2), sect. 238(5) [para. 8]; sect. 242(4) [para. 25].
Criminal Code, R.S.C. 1985, c. C-46, sect. 254(2) [para. 1]; sect. 259(4) [para. 25].
Counsel:
Darrell E. Coombs, for the appellant;
John L. MacDougall, Q.C., for the respondent.
Solicitors of Record:
Darrell E. Coombs, Charlottetown, for the appellant;
MacLeod, MacDougall, Crane & Parkman, Charlottetown, for the respondent.
This appeal was heard on June 10, 1991, before Lamer, C.J.C., Sopinka, Gonthier, Cory and Iacobucci, JJ., of the Supreme Court of Canada.
On October, 17, 1991, Lamer, C.J.C., delivered the following judgment for the court.
