R. v. Therens (1985), 40 Sask.R. 122 (SCC)
MLB headnote and full text
R. v. Therens
(No. 17692)
Indexed As: R. v. Therens
Supreme Court of Canada
Dickson, C.J.C., Ritchie, Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson and Le Dain, JJ.
May 23, 1985.
Summary:
Therens was charged with driving with an excessive blood-alcohol content contrary to s. 236(1) of the Criminal Code of Canada. The trial judge dismissed the charge. The trial judge ruled inadmissible certificate evidence respecting a breath sample taken from Therens because the police failed to give Therens notice of his rights as required by s. 10 of the Canadian Charter of Rights and Freedoms 1982. The Crown appealed to the Saskatchewan Court of Appeal.
The Saskatchewan Court of Appeal dismissed the appeal – see 23 Sask.R. 81. The Crown appealed.
The Supreme Court of Canada dismissed the appeal.
Civil Rights – Topic 3604
Detention – Warning or notice of rights – Detention defined for purposes of the Charter – Therens, a driver, was involved in a motor vehicle accident – A policeman demanded that Therens accompany the policeman for purposes of providing a breath sample for analysis – The Supreme Court of Canada held that in such circumstances the driver was detained for purposes of s. 10 of the Canadian Charter of Rights and Freedoms.
Civil Rights – Topic 3604
Detention – Warning or notice of rights – Detention defined for purposes of the Charter – A judge of the Supreme Court of Canada stated that a person is detained (within s. 10 of the Charter) when a police officer assumes control over the movement of a person by a demand or direction which may have significant legal consequences (see paragraph 32).
Civil Rights – Topic 8368
Canadian Charter of Rights and Freedoms – Denial of rights – Remedies, exclusion of evidence – The police obtained a breath sample from Therens but failed to advise Therens of his right to counsel – Therens was charged with driving with an excessive blood alcohol content and at trial the Crown offered certificate evidence of the results of analysis of Therens’ breath sample – The Supreme Court of Canada held that such evidence must be excluded under s. 24(2) of the Charter – The court stated that to admit such evidence would clearly “bring the administration of justice into disrepute” (see paragraphs 8, 74).
Civil Rights – Topic 8348
Canadian Charter of Rights and Freedoms – Application, exceptions – Reasonable limits prescribed by law (s. 1) – Therens provided a breath sample under s. 235(1) of the Criminal Code of Canada but Therens was not advised of his right to counsel as required by s. 10(b) of the Charter – The Supreme Court of Canada stated that s. 235(1) did not purport to limit Therens’ rights under s. 10(b) of the Charter – The court stated that in such circumstances s. 1 of the Charter had no application (see paragraphs 6, 60 and 66).
Civil Rights – Topic 3604
Detention – Warning or notice of rights – Detention defined for purposes of the Charter – A judge of the Supreme Court of Canada stated that where a peace officer makes a demand on a person, it is not realistic to say that the person is free to refuse to comply with the demand (see paragraphs 35, 36).
Civil Rights – Topic 8550
Canadian Charter of Rights and Freedoms – Interpretation, particular clauses – Bring the administration of justice into disrepute (s. 24(2)) – A judge of the Supreme Court of Canada stated that whether evidence must be excluded because its admission would bring the administration of justice into disrepute is a question of law (see paragraph 57).
Cases Noticed:
R. v. Chromiak, [1980] 1 S.C.R. 471; 29 N.R. 441, refd to. [para. 18].
Minister of Home Affairs v. Fisher, [1980] A.C. 319, refd to. [para. 21].
R. v. Currie (1983), 56 N.S.R.(2d) 583; 117 A.P.R. 583; 4 C.C.C.(3d) 217 (N.S.S.C.A.D.), refd to. [para. 24].
R. v. Trask (1983), 42 Nfld. & P.E.I.R. 30; 122 A.P.R. 30; 6 C.C.C.(3d) 132 (Nfld. C.A.), refd to. [para. 24].
R. v. Rahn (1984), 50 A.R. 43; 11 C.C.C.(3d) 152 (Alta. C.A.), refd to. [para. 24].
R. v. Simmons (1984), 3 O.A.C. 1; 11 C.C.C.(3d) 193, refd to. [para. 24].
Hunter v. Southam Inc., [1984] 2 S.C.R. 145; 55 N.R. 241, refd to. [para. 27].
Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; 53 N.R. 169, refd to. [para. 27].
R. v. Talbourdet (1984), 32 Sask.R. 5; 12 C.C.C.(3d) 173, refd to. [para. 28].
R. v. Hogan, [1975] 2 S.C.R. 574; 2 N.R. 343, refd to. [para. 35].
R. v. Rothman, [1981] 1 S.C.R. 640; 35 N.R. 485, refd to. [para. 47].
R. v. Collins (1983), 5 C.C.C.(3d) 141 (B.C.C.A.), refd to. [para. 48].
R. v. Cohen (1983), 5 C.C.C.(3d) 156 (B.C.C.A.), refd to. [para. 48].
R. v. Stevens (1983), 58 N.S.R.(2d) 413; 123 A.P.R. 413; 7 C.C.C.(3d) 260 (N.S.S.C.A.D.), refd to. [para. 48].
R. v. Chapin (1983), 7 C.C.C.(3d) 538 (Ont. C.A.), refd to. [para. 48].
R. v. Manninen (1983), 1 O.A.C. 199; 8 C.C.C.(3d) 193 (Ont. C.A.), refd to. [para. 48].
Miranda v. Arizona (1966), 384 U.S. 436 (U.S.S.C.), refd to. [para. 71].
Statutes Noticed:
Criminal Code of Canada, sect. 234.1, sect. 235 [para. 11].
Canadian Charter of Rights and Freedoms, 1982, sect. 10, sect. 24 [para. 11].
Constitution Act, 1982, sect. 52 [para. 27].
Canadian Bill of Rights [para. 27], sect. 2(c) [para. 28].
Authors and Works Noticed:
Dworkin, Taking Rights Seriously (1977), page 132 [para. 27].
Fleming, The Law of Torts, 6th Ed., 1983, page 171 [para. 44].
Gibson, D., Determining Disrepute: Opinion Polls and the Canadian Charter of Rights and Freedoms, 1983, 61 Can. Bar Rev. 377 [para. 57].
Counsel:
D. Murray Brown, James MacPherson and Andrew Petter, for the appellant;
Robert Skinner and Vikas Khaladkar, for the respondent;
S.R. Fainstein, for the Attorney General of Canada;
Edward Then, Q.C., for the Attorney General for Ontario;
Jean-Francois Dionne, for the Attorney General of Quebec.
This appeal was heard by Dickson, C.J.C., Ritchie, Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson and Le Dain, JJ., of the Supreme Court of Canada on June 21, 1984.
Ritchie, J., did not take part in the judgment.
The judgment of the Supreme Court of Canada was delivered on May 23, 1985, and the following opinions were filed:
Estey, J., concurring in part with Le Dain, J. – see paragraphs 1 to 9;
Le Dain, J., dissenting – see paragraphs 10 to 58;
McIntyre, J., dissenting – see paragraph 59;
Dickson, C.J.C., concurring in part with Le Dain, J., and in part with Lamer, J. – see paragraphs 60 to 63;
Lamer, J., concurring in part with Estey, J., and in part with Le Dain, J. – see paragraphs 64 to 75.
Beetz, Chouinard and Wilson, JJ., concurred with Estey, J.
