R. v. Thomsen (1988), 27 O.A.C. 85 (SCC)
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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John B. Thomsen v. Her Majesty the Queen and the Attorney General of Canada
(19516)
Indexed As: R. v. Thomsen
Supreme Court of Canada
Dickson, C.J.C., Beetz, Estey, McIntyre, Wilson, Le Dain and La Forest, JJ.
April 28, 1988.
Summary:
Thomsen’s vehicle was stopped by police because of a defective headlamp. The officer suspected that Thomsen had consumed alcohol and made an A.L.E.R.T. demand. (i.e. a demand that Thomsen provide a breath sample for testing in a roadside screening device). Thomsen refused. He was asked to sit in the officer’s car for 15 minutes and was released on an appearance notice. At no time was he informed of his right to counsel under s. 10(b) of the Charter. He was subsequently charged with refusing the A.L.E.R.T., contrary to s. 234.1 of the Criminal Code. The Ontario Provincial Court, Criminal Division, dismissed the charge on the ground that his right to counsel was infringed. The Crown appealed.
The Ontario County Court, in a decision reported 23 M.V.R. 162, allowed the appeal, set aside the acquittal and ordered a new trial. Thomsen appealed.
The Ontario Court of Appeal, in an unreported endorsement on the record, dismissed the appeal. Thomsen appealed again.
Estey, J., posed three constitutional questions for the court: (1) Is a person being investigated under s. 234.1 of the Criminal Code detained within the meaning of s. 10 (b) of the Charter? (2) If the answer to question one is affirmative, does s. 234.1 of the Criminal Code, as applied, violate the right to counsel contrary to s. 10(b) of the Charter? (3) If s. 234.1 violates s. 10(b) of the Charter, is s. 234.1 justified under s. 1 of the Charter? The Supreme Court of Canada dismissed the appeal, answering each question in the affirmative. The court held that a person who is given an A.L.E.R.T. demand is detained. However, s. 234.1 implies that there is no right to counsel when detained for an A.L.E.R.T. test. The court held that this limit on the right to counsel was reasonably justified under s. 1 of the Charter.
Civil Rights – Topic 3604
Detention – What constitutes – The Supreme Court of Canada held that an accused when given a demand by a police officer to provide a sample of breath for a roadside screening device pursuant to s. 234.1 of the Criminal Code was detained within the meaning of s. 10(b) of the Charter – See paragraphs 10 to 14.
Civil Rights – Topic 4604
Right to counsel – Denial of – What constitutes – The Supreme Court of Canada held that an accused when given a demand by a police officer to provide a sample of breath for a roadside screening test pursuant to s. 234.1 of the Criminal Code, was detained within the meaning of s. 10(b) of the Charter – See paragraphs 10 to 14 – The court noted, however, that the words of s. 234.1 imply that there is to be no opportunity to consult with counsel prior to compliance with the section, notwithstanding the detention (a limitation prescribed by law) – See paragraphs 15 to 19 – The court held that the limit on the right to counsel imposed by s. 234.1 was reasonable and demonstrably justified in a free and democratic society – See paragraphs 20 to 23.
Civil Rights – Topic 4608
Right to counsel – Right to be advised of – [See Civil Rights – Topic 4604 above].
Civil Rights – Topic 4610
Right to counsel – Impaired driving – Demand for breath sample – Roadside screening test – A.L.E.R.T. – [See Civil Rights – Topic 4604 above].
Civil Rights – Topic 4610
Right to counsel – Impaired driving – Demand for breath sample – Roadside screening test – A.L.E.R.T. – The accused’s vehicle was stopped by police because of a defective headlamp – The officer smelled alcohol and made an A.L.E.R.T. demand – The accused refused – At no time was he advised of any right to retain and instruct counsel – He was subsequently charged with refusing an A.L.E.R.T. contrary to s. 234.1 of the Criminal Code – The Supreme Court of Canada held that the accused was detained when given the A.L.E.R.T. demand, but that s. 234.1 limited his s. 10(b) Charter right to counsel in a way which was reasonably justified under s. 1 of the Charter.
Civil Rights – Topic 4613
Right to counsel – Requirement of arrest or detention – [See Civil Rights – Topic 4604 above].
Civil Rights – Topic 8348
Canadian Charter of Rights and Freedoms – Application – Exceptions – Reasonable limits prescribed by law (s. 1) – [See Civil Rights – Topic 4604 above].
Civil Rights – Topic 8348
Canadian Charter of Rights and Freedoms – Application – Exceptions – Reasonable limits prescribed by law (s. 1) – The Supreme Court of Canada stated that “a limit prescribed by law within the meaning of s. 1 may result by implication from the terms of a legislative provision or its operating requirements. It need not be an explicit limitation of a particular right or freedom” – See paragraph 15.
Criminal Law – Topic 1385
Motor vehicles – Impaired driving – Roadside screening test – General – [See second Civil Rights – Topic 4610 above].
Cases Noticed:
R. v. Chromiak, [1980] 1 S.C.R. 471; 29 N.R. 441; 49 C.C.C.(2d) 252, refd to. [paras. 5, 6].
R. v. Simmons (1984), 3 O.A.C. 1; 45 O.R.(2d) 609; 26 M.V.R. 168; 39 C.R.(3d) 223; 7 D.L.R.(4th) 719; 11 C.C.C.(3d) 193, refd to. [para. 6].
R. v. Altseimer (1982), 1 C.C.C.(3d) 7, refd to. [para. 6].
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, appld. [para. 11].
R. v. Trask, [1985] 1 S.C.R. 655; 59 N.R. 145; 54 Nfld. & P.E.I.R. 221; 160 A.P.R. 221; 45 C.R.(3d) 137; 18 C.C.C.(3d) 514, refd to. [para. 12].
R. v. Rahn, [1985] 1 S.C.R. 659; 59 N.R. 144; 61 A.R. 56; 45 C.R.(3d) 134, refd to. [para. 12].
R. v. Talbourdet (1984), 32 Sask.R. 5; 12 C.C.C.(3d) 173 (Sask. C.A.), consd. [para. 16].
R. v. Seo (1986), 13 O.A.C. 359; 25 C.C.C.(3d) 385 (Ont. C.A.), consd. [paras. 17, 18, 21].
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, appld. [para. 20].
R. v. Videoflicks, [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239; 55 C.R.(3d) 193; 35 D.L.R.(4th) 1, appld. [para. 20].
R. v. Edwards Books and Art Ltd. – see R. v. Videoflicks.
R. v. Hufsky (1988), 84 N.R. 365, refd to. [para. 21].
Statutes Noticed:
Canadian Charter of Rights and Freedoms, 1982, sect. 1, sect. 10(b).
Criminal Code, R.S.C. 1970, c. C-34, sect. 234.1 [para. 1 et seq.]; sect. 235(1) [para. 11 et seq.]; sect. 237(1) [para. 16]; sect. 238 [para. 7].
Criminal Law Amendment Act 1985, S.C. 1985, c. 19, sect. 36 [para. 7].
Authors and Works Noticed:
Falconer, The A.L.E.R.T. Demand and the Right to Counsel: The Problem with Talbourdet (1986), 28 Crim.L.Q. 390 [para. 17].
Counsel:
William D. Mackie, Q.C., and Peter Di Martino, for the appellant;
M.A. MacDonald, for the respondent;
E.A. Bowie, Q.C., for the intervenor.
Solicitors of Record:
William D. Mackie and Peter DiMartino, Brampton, Ontario, for the appellant;
Attorney General for Ontario, Toronto, Ontario, for the respondent;
Frank Iacobucci, Ottawa, Ontario, for the intervenor.
This appeal was heard on February 26, 1987, before Dickson, C.J.C., Beetz, Estey, McIntyre, Wilson, Le Dain and La Forest, JJ., of the Supreme Court of Canada. The following unanimous decision of the Supreme Court of Canada was delivered in both official languages on April 28, 1988, by Le Dain, J.
