R. v. Dewald, [1996] 1 S.C.R. 68

Wendel Dewald Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Dewald

File No.: 24363.

1996: January 26.

Present: Sopinka, Gonthier, Cory, McLachlin and Major JJ.

on appeal from the court of appeal for ontario

Constitutional law ‑‑ Charter of Rights ‑‑ Unreasonable search and seizure ‑‑ Bringing administration of justice into disrepute ‑‑ Admissibility ‑‑ Demand for breath sample not made in accordance with Criminal Code and infringing appellant's Charter rights ‑‑ Admission of evidence obtained as result of infringement not bringing administration of justice into disrepute ‑‑ Canadian Charter of Rights and Freedoms, s. 24(2) ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 254(2).

Evidence ‑‑ Admissibility ‑‑ Evidence obtained as result of technical Charter breach ‑‑ Admitting evidence not bringing administration of justice into disrepute.

Cases Cited

Referred to: R. v. Bernshaw, [1995] 1 S.C.R. 254; Rilling v. The Queen, [1976] 2 S.C.R. 183.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, s. 24(2).

Criminal Code, R.S.C., 1985, c. C‑46, s. 254(2).

APPEAL from a decision of the Ontario Court of Appeal (1994), 19 O.R. (3d) 704, 73 O.A.C. 287, 92 C.C.C. (3d) 160, 23 C.R.R. (2d) 128, 5 M.V.R. (3d) 224, dismissing an appeal from a judgment of McLean J. (1993), 48 M.V.R. (2d) 258. Appeal dismissed.

Irwin Koziebrocki, for the appellant.

Rick Libman, for the respondent.

The judgment of the Court was delivered orally by

[1] Sopinka J. ‑‑ We agree with Arbour J.A. ((1994), 19 O.R. (3d) 704) that the delay in demanding an ALERT test in this case was not in compliance with s. 254(2) of the Criminal Code, R.S.C., 1985, c. C‑46, as interpreted in this Court's decision in R. v. Bernshaw, [1995] 1 S.C.R. 254. As a result, there occurred a breach of the appellant's rights under the Canadian Charter of Rights and Freedoms.

[2] In the circumstances, the case of Rilling v. The Queen, [1976] 2 S.C.R. 183, has no application. With respect to s. 24(2), we are of the opinion that in all the circumstances, the admission of the evidence did not render the trial unfair. The breach of the Charter was technical and the police officer acted in good faith. The admission of the evidence would not bring the administration of justice into disrepute.

[3] The appeal is dismissed.

Judgment accordingly.

Solicitor for the appellant: Irwin Koziebrocki, Toronto.

Solicitor for the respondent: The Attorney General for Ontario, Toronto.