SUPREME COURT OF CANADA

Citation: R. v. Orbanski; R. v. Elias, [2005] 2 S.C.R. 3, 2005 SCC 37

Date: 20050616

Docket: 29793, 29920

Between:

Christopher Orbanski

Appellant

v.

Her Majesty the Queen

Respondent

‑ and ‑

Attorney General of Canada, Attorney General of Ontario,

Attorney General of British Columbia, Attorney General

for Saskatchewan, Attorney General of Alberta and

Criminal Lawyers’ Association (Ontario)

Interveners

and between:

Her Majesty the Queen

Appellant

v.

David Jeff Elias

Respondent

‑ and ‑

Attorney General of Canada, Attorney General of Ontario,

Attorney General of Quebec, Attorney General of

British Columbia, Attorney General for Saskatchewan,

Attorney General of Alberta and Criminal Lawyers’

Association (Ontario)

Interveners

Coram: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

Reasons for Judgment:

(paras. 1 to 62):

Concurring reasons in Orbanski

and dissenting reasons in Elias:

(paras. 63 to 105):

Charron J. (McLachlin C.J. and Major, Bastarache, Binnie, Deschamps and Abella JJ. concurring)

LeBel J. (Fish J. concurring)

R. v. Orbanski; R. v. Elias, [2005] 2 S.C.R. 3, 2005 SCC 37

Christopher Orbanski Appellant

v.

Her Majesty The Queen Respondent

and

Attorney General of Canada, Attorney General of Ontario,

Attorney General of British Columbia, Attorney General

for Saskatchewan, Attorney General of Alberta and

Criminal Lawyers’ Association (Ontario) Interveners

and between

Her Majesty The Queen Appellant

v.

David Jeff Elias Respondent

and

Attorney General of Canada, Attorney General of Ontario,

Attorney General of Quebec, Attorney General of

British Columbia, Attorney General for Saskatchewan,

Attorney General of Alberta and Criminal Lawyers’

Association (Ontario) Interveners

Indexed as: R. v. Orbanski; R. v. Elias

Neutral citation: 2005 SCC 37.

File Nos.: 29793, 29920.

2004: October 12; 2005: June 16.

Present: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

on appeal from the court of appeal for manitoba

Constitutional law — Charter of Rights — Right to counsel — Roadside screening measures to assess sobriety of drivers — Two accused stopped while driving vehicles and asked if they had been drinking — One of accused also asked to perform roadside sobriety tests — Whether accused detained — If so, whether police required to inform accused of right to counsel before asking if they had been drinking or before requesting sobriety tests — Canadian Charter of Rights and Freedoms, s. 10(b) — Highway Traffic Act, S.M. 1985‑86, c. 3, C.C.S.M. c. H60, s. 76.1(1).

Constitutional law — Charter of Rights — Reasonable limits prescribed by law — Roadside screening measures to assess sobriety of drivers — Two accused stopped while driving vehicles and asked if they had been drinking — One of accused also asked to perform roadside sobriety tests — Whether screening measures constitute implied limit on right to counsel prescribed by law — If so, whether limit justifiable — Canadian Charter of Rights and Freedoms, ss. 1, 10(b) — Highway Traffic Act, S.M. 1985‑86, c. 3, C.C.S.M. c. H60, s. 76.1(1).

Police — Powers — Scope of police authority to check sobriety of drivers at roadside — Whether police requests to drivers to perform sobriety tests or answer questions about prior alcohol consumption fall within scope of authorized police action — Criminal Code, R.S.C. 1985, c. C-46, ss. 253, 254 — Highway Traffic Act, S.M. 1985‑86, c. 3, C.C.S.M. c. H60, s. 76.1(1).

Police officers stopped a vehicle driven by O after they observed it go through a stop sign without stopping and swerving on the road. E’s vehicle was stopped at a random roadside stop. In both cases, the police officer who approached the vehicle could smell alcohol. Each driver was asked if he had been drinking. O was also asked to perform roadside sobriety tests, which he failed, and E failed an approved screening device test; both were arrested. The Crown conceded that both accused had been detained for the purposes of s. 10(b) of the Canadian Charter of Rights and Freedoms before being arrested and that neither of them was fully advised of his right to counsel until after he was arrested. Each of the accused provided breath samples and was charged with impaired driving and “driving over 80” under ss. 253(a) and 253(b) of the Criminal Code. The trial judges held that O’s and E’s rights to counsel under s. 10(b) were infringed while they were detained and that the limits on s. 10(b) arising from the police conduct were not prescribed by law within the meaning of s. 1 of the Charter. As a result, the infringement of s. 10(b) was unjustified. In both cases, the evidence was excluded under s. 24(2) of the Charter, and the accused were acquitted. In O’s case, the Court of Appeal set aside the acquittals and ordered a new trial; in E’s case, it upheld the summary conviction appeal court’s decision setting aside E’s acquittal on the “driving over 80” charge and ordering a new trial. The Court of Appeal in each case held that s. 10(b) of the Charter had been breached and that the limit on the right to counsel was not prescribed by law, but that the evidence should be admitted under s. 24(2).

Held (LeBel and Fish JJ. dissenting in E’s case): O’s appeal should be dismissed. The Crown’s appeal in E’s case should be allowed. The orders for new trials should be upheld.

Per McLachlin C.J. and Major, Bastarache, Binnie, Deschamps, Abella and Charron JJ.: The right to counsel under s. 10(b) of the Charter was triggered when O and E were detained before their arrests. However, the right to counsel is not absolute. It is subject to reasonable limits that are prescribed by law and are demonstrably justified in a free and democratic society. [31-33]

At the relevant time, there was no express limit on the right to counsel in the Manitoba Highway Traffic Act. The prescribed limit arose in these cases by necessary implication from the operating requirements of the governing provincial and federal legislative provisions. In the circumstances of these cases, the police officers were acting in the lawful execution of their duty when they stopped O and E and checked their sobriety. The authority of police officers to check the sobriety of drivers arises in relation to the powers that are necessarily implicit in the general statutory vehicle stop provision found in s. 76.1 of the Manitoba Highway Traffic Act and in their duty to enforce s. 254 of the Criminal Code. Screening drivers necessarily requires interaction with motorists at the roadside. The scope of justifiable police conduct will not always be defined by express words found in a statute but will sometimes depend on the purpose of the police power in question and the particular circumstances in which it is exercised. It is therefore inevitable that common law principles will be invoked to determine the scope of permissible police action. Here, the roadside screening measures used to assess the sobriety of O and E — the request to perform sobriety tests and the question about prior alcohol consumption — were reasonable and necessary for the police officers to fulfill their duty. These measures fell within the scope of authorized police actions and were incompatible with the exercise of the right to counsel. [35-45] [49-53]

The limit on s. 10(b) is justified under s. 1 of the Charter. The objective of reducing the carnage caused by impaired driving constitutes a compelling state objective; the use of reasonable screening methods is rationally connected to the objective; the infringement of the right to counsel was no more than necessary to meet the objective; and, in light of the limited use that can be made of the compelled evidence collected during the screening process, there was proportionality between the deleterious and the salutary effects of the screening measures. [55-60]

Per LeBel and Fish JJ. (dissenting in E’s case): In both appeals, it is necessary to determine whether there was a limit prescribed by law on the right to counsel. The relevant Manitoba statute does not expressly limit the right under s. 10(b) of the Charter, and the argument that a limit impliedly flows from the operational requirements of the relevant federal and provincial legislation is a utilitarian one. There is no doubt that drunk driving is an evil and a serious danger, but it is not appropriate to adopt a strained legal interpretation to sidestep inconvenient Charter rights for the greater good. The operational requirements of a statute cannot stand apart from the statute as a distinct source of powers and obligations. Here, the power to request a sobriety test or to put questions to the driver regarding his or her consumption is found nowhere in the statutes, not even implicitly or by giving them a broad interpretation. The adoption of a rule enabling the courts to limit Charter rights through the development of common law police powers on the basis of the needs of police investigations would pre‑empt a serious review of limits on Charter rights. A more prudent approach than the creation of common law powers through judicial intervention would appear to be advisable. The highly regulated environment and interlocking federal and provincial schemes call for a legislative solution. [69-70] [78-83]

Although in both cases the conduct of the police unjustifiably infringed s. 10(b), the evidence against O should have been admitted under s. 24(2) of the Charter. Section 24(2) is not a pure exclusionary rule when conscriptive evidence is involved. Courts must closely review the circumstances and nature of the infringement, as not every Charter breach requires the exclusion of evidence. In O’s case, the breach did not go to the fairness of the trial. It was a minor infringement, and excluding the evidence would bring the administration of justice into disrepute. The finding that s. 10(b) was infringed has no effect in E’s case because he had been refused leave to cross‑appeal on the s. 24(2) issue. [98] [101-104]

Cases Cited

By Charron J.

Referred to: R. v. Brydges, [1990] 1 S.C.R. 190; Dedman v. The Queen, [1985] 2 S.C.R. 2; R. v. Simmons, [1988] 2 S.C.R. 495; Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053; R. v. Therens, [1985] 1 S.C.R. 613; R. v. Thomsen, [1988] 1 S.C.R. 640; R. v. Hufsky, [1988] 1 S.C.R. 621; R. v. Ladouceur, [1990] 1 S.C.R. 1257; R. v. Saunders (1988), 41 C.C.C. (3d) 532; R. v. Smith (1996), 105 C.C.C. (3d) 58; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Seo (1986), 25 C.C.C. (3d) 385; R. v. Oakes, [1986] 1 S.C.R. 103; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Milne (1996), 107 C.C.C. (3d) 118, leave to appeal refused, [1996] 3 S.C.R. xiii; R. v. Coutts (1999), 45 O.R. (3d) 288; R. v. Ellerman, 2000 ABCA 47, [2000] 6 W.W.R. 704; R. v. Roy (1997), 117 C.C.C. (3d) 243; R. v. Bartle, [1994] 3 S.C.R. 173.

By LeBel J. (dissenting in Elias)

R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Brydges, [1990] 1 S.C.R. 190; R. v. Thomsen, [1988] 1 S.C.R. 640; [R. v. Waterfield, [1963] 3 All E.R. 659]; R. v. Charron (1990), 57 C.C.C. (3d) 248; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679; R. v. Tremblay (1995), 105 C.C.C. (3d) 91; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Wray, [1971] S.C.R. 272; R. v. Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535; R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631; R. v. Harrer, [1995] 3 S.C.R. 562.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1, 7, 9, 10, 24(2).

Criminal Code, R.S.C. 1985, c. C‑46, ss. 253, 254.

Highway Safety Code, R.S.Q., c. C‑24.2, s. 636.1.

Highway Traffic Act, R.S.O. 1990, c. H.8, s. 48(1).

Highway Traffic Act, S.M. 1985‑86, c. 3, C.C.S.M. c. H60, ss. 76.1(1) [previously s. 76.1], (6), 263.1(1), 263.2, 265(1), (2).

Highway Traffic Amendment Act (Police Powers Respecting Unsafe Drivers and Miscellaneous Amendments), S.M. 2004, c. 11.

APPEAL from a judgment of the Manitoba Court of Appeal (Philp, Kroft and Freedman JJ.A.) in R. v. Orbanski, [2003] 9 W.W.R. 591, 173 Man. R. (2d) 132, 293 W.A.C. 132, 173 C.C.C. (3d) 203, 11 C.R. (6th) 268, 105 C.R.R. (2d) 61, 37 M.V.R. (4th) 69, [2003] M.J. No. 99 (QL), 2003 MBCA 43, setting aside the accused’s acquittal ordered by Guy Prov. Ct. J., [2001] 9 W.W.R. 178, 85 C.R.R. (2d) 254, 13 M.V.R. (4th) 73, [2001] M.J. No. 171 (QL), and ordering a new trial. Appeal dismissed.

APPEAL from a judgment of the Manitoba Court of Appeal (Philp, Kroft and Freedman JJ.A.) in R. v. Elias (2003), 226 D.L.R. (4th) 630, [2004] 6 W.W.R. 601, 177 Man. R. (2d) 13, 304 W.A.C. 13, 174 C.C.C. (3d) 512, 40 M.V.R. (4th) 1, 107 C.R.R. (2d) 189, [2003] M.J. No. 192 (QL), 2003 MBCA 72, affirming a decision of Schwartz J., [2002] 7 W.W.R. 316, 164 Man. R. (2d) 249, 24 M.V.R. (4th) 225, [2002] M.J. No. 184 (QL), 2002 MBQB 139, setting aside the accused’s acquittal ordered by Kopstein Prov. Ct. J., [2002] 1 W.W.R. 85, 87 C.R.R. (2d) 106, 13 M.V.R. (4th) 232, [2001] M.J. No. 106 (QL), and ordering a new trial. Appeal allowed, LeBel and Fish JJ. dissenting.

Sheldon E. Pinx, Q.C., and Sarah A. Inness, for the appellant in Orbanski.

Eugene B. Szach and Cynthia Devine, for the respondent in Orbanski/appellant in Elias.

Jason P. Miller, for the respondent in Elias.

Robert W. Hubbard and Valerie Hartney, for the intervener the Attorney General of Canada.

Philip Perlmutter and Joan Barrett, for the intervener the Attorney General of Ontario.

Jacques Blais and Gilles Laporte, for the intervener the Attorney General of Quebec.

Roger F. Cutler, for the intervener the Attorney General of British Columbia.

Thomson Irvine and Alan Jacobson, for the intervener the Attorney General for Saskatchewan.

Jim Bowron, for the intervener the Attorney General of Alberta.

Gary T. Trotter and Don Stuart, for the intervener the Criminal Lawyers’ Association (Ontario).

The judgment of McLachlin C.J. and Major, Bastarache, Binnie, Deschamps, Abella and Charron JJ. was delivered by

Charron J. —

I. Introduction

1These appeals again raise issues resulting from the tension between the individual rights of motorists and the broader societal concern in dealing with the carnage caused by those who commit offences involving drinking and driving. The question is whether police officers were authorized to ask the drivers about their prior alcohol consumption and, in one of the appeals, to request the performance of sobriety tests at the roadside without first informing the driver of his right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms. While this Court has upheld the constitutionality of random roadside stops at common law and the administration of roadside screening device tests taken pursuant to s. 254(2) of the Criminal Code, R.S.C. 1985, c. C-46, as reasonable limits on the right to counsel, the law remains uncertain on the constitutionality of other roadside screening measures used to assess the sobriety of drivers.

2In each case under appeal, the Crown conceded that the driver was detained from the moment a police officer directed him to pull over. Hence the s. 10(b) Charter right to retain and instruct counsel and to be informed of that right was triggered. The critical issue is whether police actions in asking questions to Elias and Orbanski about their earlier alcohol consumption and in requesting that Orbanski perform physical sobriety tests without first complying with s. 10(b) were justified limits on each individual’s right to counsel under s. 1 of the Charter.

3It is my view that these screening measures, used in each case for assessing the sobriety of the driver, were authorized by law and incompatible with the exercise of the right to counsel by the detained motorist at the roadside. The resulting limitations on the s. 10(b) right to counsel were reasonable and demonstrably justified under s. 1 of the Charter. Specifically, the limits arose by necessary implication from the legislative provisions found in the Manitoba Highway Traffic Act, S.M. 1985-86, c. 3, C.C.S.M. c. H60, and their operating requirements. Affirming the validity of such screening measures for the limited purpose of assessing the sobriety of the driver at the roadside properly balances the strong public interest in combatting the social evil of drinking and driving with the need to protect the Charter rights of individuals.

4Consequently, I would dismiss Orbanski’s appeal and allow the Crown appeal in Elias’s case. In both cases, I would confirm the order for new trials.

II. The Appeal in Orbanski

A. The Facts

5Early in the morning of August 30, 1998, at 3:21 a.m., RCMP officers observed a vehicle proceed through a stop sign without stopping, make a wide left turn, and swerve back and forth on the road. The officers activated their emergency lights and stopped the vehicle. One officer approached the vehicle and identified himself to the sole occupant, the appellant Orbanski. The officer could smell the odour of liquor from the driver’s breath and observed that his eyes were glassy. When asked by the officer if he had been drinking, Orbanski stated that he had consumed one beer that night. Although Orbanski did not raise any issue in respect of the police questioning, it is considered in this appeal because the matter was raised in Elias’s case. The officer then asked Orbanski to step out of the vehicle to perform some sobriety tests.

6Orbanski was told that the tests were voluntary and that he could contact a lawyer before performing them. The officer also offered him the use of a cell phone. However, the officer did not inform the appellant about the availability of free legal assistance. Hence, it is conceded on this appeal that the informational component of s. 10(b) of the Charter as mandated in R. v. Brydges, [1990] 1 S.C.R. 190, was not met at the roadside.

7Orbanski declined to contact a lawyer and agreed to perform the sobriety tests. The tests consisted of reciting the alphabet; walking in a straight line heel to toe while counting to ten; and looking at the officer’s finger while the officer moved it in front of the appellant. Orbanski was unable to perform the tests and was arrested for impaired driving.

8Orbanski was transported to the RCMP detachment where he was fully advised of his s. 10(b) right to counsel and was required to provide samples of his breath for analysis. The resulting blood alcohol readings, which exceeded the legal limit, were obtained after the appellant had spoken to counsel. He was charged with impaired driving under s. 253(a) and driving “over 80” under s. 253(b) of the Criminal Code.

B. Judicial Proceedings

9Orbanski was acquitted at trial in summary conviction court ([2001] 9 W.W.R. 178). The Crown appealed to the summary conviction appeal court and, before the appeal was heard, obtained leave to appeal to the Manitoba Court of Appeal. Philp J.A., writing for the court, allowed the Crown’s appeal and ordered a new trial (2003 MBCA 43).

10The proceedings both at trial and on appeal were focussed on what transpired at the roadside from the time Orbanski was pulled over by the police to the time he was arrested some minutes later. The officer’s subsequent conduct is not alleged to have resulted in any breach of the Charter. The trial judge found as a fact that, without the evidence of the sobriety tests, the Crown could not establish that the officer had the requisite reasonable and probable grounds to arrest Orbanski and demand that he supply breath samples for analysis under s. 254(3)(a) of the Criminal Code. The appeal being restricted to a question of law, the Crown was bound by this finding before the Manitoba Court of Appeal and before this Court.

11Based on the trial judge’s assessment of the evidence, the results of the sobriety tests became a crucial part of the Crown’s case, since they justified the arrest for impaired driving. The trial judge carefully considered the evidence relating to the administration of those tests and concluded that they were both necessary for the carrying out of the police officer’s duties and reasonable in all the circumstances. He held further that the request for sobriety tests was authorized by the common law, although no common law rule or statute in Manitoba compelled Orbanski to comply with that request. However, the trial judge did not think that a limit on the right to counsel necessarily flowed from the common law duty imposed on the police officer unless there was some urgency.

12Finally, the trial judge turned to s. 24 of the Charter and concluded that the sobriety tests and the breathalyzer readings should be excluded because their admission into evidence would bring the administration of justice into disrepute. He therefore dismissed the charges against Orbanski.

13On appeal, Philp J.A. agreed with the trial judge’s conclusion that no common law or statutory authority existed for requesting sobriety tests without advising a detainee of his s. 10(b) rights. In his view, no limit on the right to counsel could be said to be “prescribed by law” within the meaning of s. 1 of the Charter in the absence of a corresponding obligation on the driver to comply with the police request to perform sobriety tests.

14However, Philp J.A. disagreed with the trial judge in respect of the s. 24(2) analysis. He held that the sobriety tests were not conscriptive evidence because Orbanski had been neither compelled nor coerced into participating in the tests. Rather, the uncontroverted evidence was that he had participated voluntarily. Philp J.A. held that the Charter violation was not serious and the reputation of the administration of justice would be better served in this case by the admission of the evidence. The Crown’s appeal was therefore allowed, the acquittal set aside and a new trial ordered.

III. The Appeal in Elias

A. The Facts

15On December 11, 1998, at 1:44 a.m., two police officers saw Elias leave a Winnipeg hotel, get into a pickup truck and drive off. Shortly thereafter, they stopped his vehicle in a random stop. One officer approached Elias and, detecting an odour of alcohol, asked if he had been drinking. Elias apparently said yes. The police officer then took Elias to the police cruiser where he was read the demand for an approved screening device test. The test was administered and the result was a “fail”. As a result, Elias was arrested for impaired driving and was informed of his right to retain and instruct counsel without delay. After consulting with counsel, Elias provided samples of breath for analysis. Each test resulted in readings that exceeded the legal limit. He was charged with impaired driving and driving “over 80”.

B. Judicial Proceedings

16The trial judge found that Elias’s rights under s. 10(b) of the Charter had been violated at the roadside when he was asked if he had been drinking. The results of the approved screening device test were excluded because of this violation. In consequence, there was no basis for the breathalyzer demand. Elias was acquitted on both charges ([2002] 1 W.W.R. 85).

17The summary conviction appeal judge set aside the acquittal on the driving “over 80” charge and ordered a new trial (2002 MBQB 139). He was of the view that the police officer had not violated the driver’s rights when he asked him whether he had been drinking. Alternatively, such a violation was saved by s. 1 of the Charter.

18A majority of the Manitoba Court of Appeal (Philp J.A., Freedman J.A. concurring) agreed with the trial judge that asking questions regarding recent drinking behaviour infringed the driver’s s. 10(b) rights and that this violation was not saved by s. 1 (2003 MBCA 72). According to the majority, neither s. 76.1(1) of the Highway Traffic Act, which authorized the stop, nor common law principles limit a detained driver’s right to contact counsel prior to such questioning.

19However, the majority of the Court of Appeal went on to admit the evidence of both the approved screening device test and the resulting breathalyzer test. In their view, the police officers reasonably suspected that Elias had alcohol in his body, quite apart from the question regarding recent alcohol consumption. Thus, the exclusion of the evidence, not its admission, would bring the administration of justice into disrepute.

20Although concurring in the result, Kroft J.A. dissented on the s. 1 analysis. He found that s. 76.1(1) implicitly limits the right to counsel. In his view, the questioning by the police officers prior to giving Elias his s. 10(b) rights was a reasonable and justifiable limit prescribed by law under s. 1 of the Charter.

21In the result, the Manitoba Court of Appeal dismissed Elias’s appeal and confirmed the order for a new trial. Elias did not initially seek leave to appeal. Although the Crown was successful in the result, it sought and obtained leave from this Court to appeal regarding the question of whether the infringement of s. 10(b) was saved by s. 1. Shortly before the hearing, Elias sought leave to cross-appeal in respect of the Court of Appeal’s s. 24(2) decision to admit the evidence. In light of my conclusion on the Crown’s appeal, I do not find it necessary to deal with the s. 24(2) issue and, consequently, I would deny the request for leave to cross-appeal.

IV. Issues

22Taken together, these appeals raise the following issues:

1. Do ss. 76.1(1), 263.2 and 265 of The Highway Traffic Act, S.M. 1985-86, c. 3 (H60), as amended, to the extent that they authorize a peace officer to administer physical sobriety tests to the driver of a motor vehicle, infringe s. 10(b) of the Canadian Charter of Rights and Freedoms?

2. Does s. 76.1(1) of The Highway Traffic Act, S.M. 1985-86, c. 3 (H60), as amended, to the extent that it authorizes a peace officer to question the driver of a motor vehicle about his or her prior alcohol consumption, infringe s. 10(b) of the Canadian Charter of Rights and Freedoms?

3. If the answer to question 1 or 2 is in the affirmative, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms?

4. Do the common law powers of a police officer, to the extent that those powers authorize the police officer to administer physical sobriety tests to the driver of a motor vehicle, infringe s. 10(b) of the Canadian Charter of Rights and Freedoms?

5. Do the common law powers of a police officer, to the extent that those powers authorize the police officer to question the driver of a motor vehicle about his or her prior alcohol consumption, infringe s. 10(b) of the Canadian Charter of Rights and Freedoms?

6. If the answer to question 4 or 5 is in the affirmative, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms?

For the reasons that follow, I would answer questions 1, 2 and 3 in the affirmative. The remaining questions need not be answered.

V. Analysis

A. The Factual Context

23As in most Charter cases, the factual context in these two appeals is of critical importance to the proper resolution of the questions before the Court. The following factors govern the determination of whether Elias and Orbanski should have been fully informed of their right to counsel at the roadside and given the opportunity to retain and instruct counsel before being asked questions about prior alcohol consumption or requested to perform sobriety tests.

24First, we are concerned here with the use of a vehicle on a highway. This Court has recognized that, while movement in a vehicle involves a “liberty” interest in a general sense, it cannot be equated to the ordinary freedom of movement of the individual that constitutes one of the fundamental values of our democratic society. Rather, it is a licensed activity that is subject to regulation and control for the protection of life and property: see Dedman v. The Queen, [1985] 2 S.C.R. 2, at p. 35. The need for regulation and control of the use of vehicles on the highway is heightened both because of the high prevalence of the activity and its inherent dangers.

25Second, the effective regulation and control of this activity give rise to a unique challenge when it comes to protecting users of the highway from the menace posed by drinking and driving. This challenge arises from the fact that drinking and driving is not in and of itself illegal. It is only driving with an impermissible amount of alcohol in one’s body, or driving when one’s faculties are impaired, that is criminalized. The line between the permissible and the impermissible is not always easy to discern, and the necessary screening can only be achieved through “field” enforcement by police officers. It follows that these officers must be equipped to conduct this screening, though with minimal intrusion on the individual motorist’s Charter rights.

26Third, the challenge in this area of law enforcement is increased by the fact that the activity in question is ongoing and the drinking driver who has exceeded permissible limits presents a continuing danger on the highway. The aim is to screen drivers at the road stop, not at the scene of the accident. Hence, effective screening at the roadside is necessary to ensure the safety of the drivers themselves, their passengers, and other users of the highway. Effective screening should also be achieved with minimal inconvenience to the legitimate users of the highway.

27Fourth, it is important to recognize that the need for regulation and control is achieved through an interlocking scheme of federal and provincial legislation. The provincial legislative scheme includes driver licensing, vehicle safety and highway traffic rules. At the federal level, the primary interest lies in deterring and punishing the commission of criminal offences involving motor vehicles. Control of drinking and driving is not confined exclusively to the laying of criminal charges after a criminal offence has been committed. Roadside screening techniques contemplated by provincial legislation provide a mechanism for combatting the continuing danger presented by the drinking driver, even if the driver may not ultimately be found to have reached a criminal level of impairment. Examples of such provisions in the Manitoba Highway Traffic Act applicable at the roadside include s. 263.1(1), which permits a peace officer to suspend a driver’s licence if the officer has reason to believe that the driver’s blood alcohol level exceeds 80 milligrams of alcohol in 100 millilitres of blood or if the driver refuses to comply with a demand for a breath or blood sample made under s. 254 of the Criminal Code. Hence, although the issues on these appeals arise in the context of criminal trials, their resolution must nonetheless take into account both federal and provincial legislative schemes. The Court must carefully balance the Charter rights of motorists against the policy concerns of both Parliament and the provincial legislatures.

28Another important contextual factor to consider is that both cases are concerned with the interaction between police officers and motorists at the roadside during this screening procedure from the time they are pulled over by the police to the time they are either allowed to continue on their way, or are arrested for a criminal offence related to drinking and driving. In each case, the driver was ultimately arrested and charged with impaired driving and driving “over 80”. However, no issue is raised about compliance with the Charter upon and following the arrest and demand for breath samples. Both Orbanski and Elias were promptly and fully informed of their right to counsel upon arrest and given the opportunity to exercise their right before providing samples of breath for the purpose of analysis. The question is whether they should have been afforded their right before certain screening measures were effected — in Orbanski’s case, before he was asked to perform sobriety tests, and in Elias’s case, before he was asked whether he had been drinking.

B. The Right to Counsel

29Section 10 of the Charter provides that:

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right; and

(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

30Although we are concerned here solely with the s. 10(b) right to counsel, it is helpful to look at s. 10 in its entirety. The right to counsel is triggered from the moment a driver is “detained” within the meaning of s. 10. It is not every delay occasioned by a communication between a person and a police officer or other state authority that will amount to a detention within the meaning of the Charter: see, for example, R. v. Simmons, [1988] 2 S.C.R. 495, at p. 521, and Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053, at p. 1074, where this Court found that “it would be absurd to suggest that routine questioning by a customs officer constitutes a detention for the purposes of s. 10(b)”.

31The Crown conceded that Orbanski and Elias were each detained within the meaning of s. 10(b) of the Charter when pulled over by the police. In my view, this concession was well founded. In each case, the degree of compulsion or coercion necessary for there to be detention was present as defined in R. v. Therens, [1985] 1 S.C.R. 613, at pp. 641-42, and reiterated in R. v. Thomsen, [1988] 1 S.C.R. 640. It also accords with the meaning of “detained” under s. 9 as defined in R. v. Hufsky, [1988] 1 S.C.R. 621, and R. v. Ladouceur, [1990] 1 S.C.R. 1257. It may be more readily apparent how being stopped and pulled over by the police amounts to a detention for s. 10 purposes when s. 10(a) of the Charter is considered. I suspect every motorist would fully expect “to be informed promptly of the reasons” why he or she is being stopped.

32Therefore, there is no issue that the s. 10(b) right to counsel was triggered in each of these cases. It is also conceded on these appeals that neither Orbanski nor Elias was provided with his right to counsel during the period of detention at the roadside from the time they were pulled over by the police until the time of their arrest.

33The s. 10(b) right to counsel, however, is not absolute. It is subject, under s. 1 of the Charter, “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. The analysis under s. 1 of the Charter involves two separate components: the proposed limit must be prescribed by law and, if it is, it must be reasonable and demonstrably justified in a free and democratic society. Although both components of the s. 1 justification test must be addressed, the crucial question raised in the courts below and before this Court is whether there was any limit on the right to counsel “prescribed by law”.

C. A Limit Prescribed by Law

34The Court of Appeal in Orbanski’s case and a majority in Elias’s case were of the view that the police power, if any, to question a driver about prior alcohol consumption or to request the performance of sobriety tests could not constitute a “prescription by law” because there was no corresponding legal duty on the driver to answer the inquiries or to comply with the request. With respect, it is my view that this was the crux of the error made by the courts below.

35Although the Manitoba Court of Appeal was correct in its conclusion that neither common law nor statutory law in Manitoba compels a driver to perform sobriety tests or to answer police questions about sobriety, the presence or absence of penal consequences for non-compliance with the officer’s requests does not assist in determining whether the law prescribes a limit on the right to counsel. As I will explain, a prescribed limit arose in these cases by necessary implication from the operating requirements of the governing provincial and federal legislative provisions.

36It is settled law that a prescribed limit may be implied from the operating requirements of a statute. In Therens, Le Dain J. described the meaning of the words “prescribed by law” as follows (at p. 645):

Section 1 requires that the limit be prescribed by law, that it be reasonable, and that it be demonstrably justified in a free and democratic society. The requirement that the limit be prescribed by law is chiefly concerned with the distinction between a limit imposed by law and one that is arbitrary. The limit will be prescribed by law within the meaning of s. 1 if it is expressly provided for by statute or regulation, or results by necessary implication from the terms of a statute or regulation or from its operating requirements. The limit may also result from the application of a common law rule. [Emphasis added.]

37Manitoba has recently amended its Highway Traffic Act to provide an express limit on the right to counsel. The relevant provision reads as follows:

76.1(6) A peace officer is not required to inform a driver or passenger of his or her right to counsel, or to give the driver or passenger the opportunity to consult counsel, before doing anything subsection (4) or (5) authorizes. [Subs. (4) permits a peace officer to demand that a driver provide information and driving documents to the officer. It also permits the officer to conduct field sobriety tests or question the driver about his or her drinking. Subs. (5) permits the officer to request relevant information from the passenger of the vehicle.]

However, these amendments had not been passed at the time Orbanski and Elias were stopped. As a result, there was no express limitation on the right to counsel found in the statute at issue in this appeal. The question is whether such a limitation was implicit in the operating requirements of the legislation existing at the time.

38An example of a limitation of the s. 10(b) Charter right to counsel resulting implicitly from the operating requirements of a statute can be found in Thomsen. In that case, Le Dain J. for the Court held that, when interpreted in the context of the two-hour time limit within which a breathalyzer test was to be administered, s. 234.1(1) of the Criminal Code, R.S.C. 1970, c. C-34 (now s. 254(2)), implied that the rights of a roadside detainee under s. 10(b) were to be abridged (Thomsen, at pp. 652-53). This limit was found to be constitutional.

39Is there such a limit in these cases? Unlike the situation in Thomsen, the screening measures utilized in this case were not expressly authorized by statute. It therefore becomes necessary to determine first, whether the police actions were nonetheless lawful under the statutory scheme and second, whether an implicit limitation on the right to counsel results from the operating requirements of that scheme.

(a) The Scope of Police Authority to Check the Sobriety of Drivers

40It is not disputed that the police had the right to stop Orbanski and Elias. In each case, the driver was stopped pursuant to the general stop power under s. 76.1(1) (then s. 76.1) of the Manitoba Highway Traffic Act:

76.1(1) A peace officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a motor vehicle to stop, and the driver of the motor vehicle, when signalled or requested to stop by a peace officer who is readily identifiable as such, shall immediately come to a safe stop and remain stopped until permitted by the peace officer to depart.

(As amended by S.M. 1989-90, c. 4, s. 3.)

The police were unquestionably acting in the lawful execution of their duties and responsibilities when they stopped Orbanski after observing his erratic driving. There is also no question that they were acting lawfully when they stopped Elias even though the stop was made at random. The legality and constitutionality of random vehicle stops pursuant to general statutory vehicle stop powers was confirmed in Ladouceur, in which a general provision in the Ontario Highway Traffic Act, R.S.O. 1980, c. 198, virtually identical to s. 76.1(1) of the Manitoba Act was reviewed for Charter compliance.

41It is also settled law that the police have the authority to check the sobriety of drivers. This authority was found to exist at common law in Dedman. More pertinently, it was also found in statute in Ladouceur, where this Court held that checking the sobriety of drivers was one of the purposes underlying the general statutory vehicle stop powers. It is the same kind of general statutory power that is in question on these appeals. As the Court stated in Ladouceur, police officers can stop persons under such statutory power only for legal reasons — in the circumstances of that case (as here), for reasons related to driving a car such as checking the driver’s licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle (p. 1287).

42The Manitoba Court of Appeal drew a distinction between Manitoba’s general vehicle stop power found in s. 76.1 and more specific legislation such as that found in Ontario’s s. 48(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, which expressly authorizes police officers to check if there are grounds to make a demand under s. 254 of the Criminal Code. Section 254 of the Criminal Code authorizes the police to make a demand on proper grounds for suitable samples for testing in an approved screening device or in a breathalyzer. Screening measures such as questioning drivers about prior alcohol consumption and requesting them to perform sobriety tests were found to be authorized under s. 48(1) of the Ontario Highway Traffic Act: see R. v. Saunders (1988), 41 C.C.C. (3d) 532 (Ont. C.A.), and R. v. Smith (1996), 105 C.C.C. (3d) 58 (Ont. C.A.).

43In my view, the absence of a specific provision authorizing police officers to check the sobriety of drivers cannot detract from the powers that are necessarily implicit under the general statutory vehicle stop provision. In addition, police officers in Manitoba are of course authorized to exercise the powers contained in s. 254 of the Criminal Code under the authority of the Code itself. That one of the underlying purposes of the general stop power provided in s. 76.1(1) of the Manitoba Highway Traffic Act is to control impaired driving is further evidenced from other sections of the Act that expressly refer to s. 254 of the Criminal Code:

265(1) When, on demand of a peace officer made under section 254 of the Criminal Code (Canada) in relation to the operation or care and control of a motor vehicle or off-road vehicle, a person provides a sample of his or her breath which, on analysis by an approved screening device as defined in that section, registers “Warn” or another word, letter or indication that the approved screening device is designed to register when calibrated as required under subsection (9), the peace officer shall request the person to surrender his or her driver’s licence.

265(2) When, on demand of a peace officer made under section 254 of the Criminal Code (Canada) in relation to the operation or care and control of a motor vehicle or off-road vehicle, a person provides a sample of his or her breath which, on analysis by an instrument approved as suitable for the purpose of section 258 of the Criminal Code (Canada), indicates that the concentration of alcohol in the person’s blood is 50 milligrams or more of alcohol in 100 millilitres of blood, the peace officer shall request the person to surrender his or her driver’s licence.

44Hence, it cannot be disputed that the police had the general power, indeed the duty, to check the sobriety of Orbanski and Elias and that, logically, certain measures could lawfully be taken to fulfill this duty. What is questioned in these cases is whether those measures included the right to ask the driver questions about prior alcohol consumption and request that he perform sobriety tests.

45The screening of drivers necessarily requires a certain degree of interaction between police officers and motorists at the roadside. It is both impossible to predict all the aspects of such encounters and impractical to legislate exhaustive details as to how they must be conducted. On this point, I respectfully disagree with the analysis of my colleague Justice LeBel. As I read his reasons, unless a statute prescribes specific investigatory measures, a police officer has a duty to provide motorists with their right to counsel before taking any steps to assess their sobriety. For example, in Mr. Elias’s case, my colleague takes the view that police officers can only ask motorists about alcohol consumption before they contact counsel if legislation permits it. Presumably, the same reasoning would apply in respect of any general question designed to assess the sobriety of the driver. On that approach, a police officer would be well advised to provide motorists with their right to counsel as soon as they rolled down their window. In my view, this would result in longer and often unnecessary detentions. While statutory provisions such as the recent Manitoba amendments can provide more guidance and certainty on the scope of permissible investigatory measures, it is my view that many of the powers set out in the amendments are implicit in the existing Manitoba legislation. The recognition of these powers is not carved out of whole cloth from common law principles to suit the occasion — these powers are part of a longstanding statutory scheme that permits police officers to stop drivers and check their sobriety. The scope of justifiable police conduct will not always be defined by express wording found in a statute but, rather, according to the purpose of the police power in question and by the particular circumstances in which it is exercised. Hence, it is inevitable that common law principles will need to be invoked to determine the scope of permissible police action under any statute. In this context, it becomes particularly important to keep in mind that any enforcement scheme must allow sufficient flexibility to be effective. The police power to check for sobriety, as any other power, is not without its limits; it is circumscribed, in the words of the majority of this Court in Dedman by that which is “necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference” (p. 35).

46Doherty J.A. provided a useful delineation of the scope of the police power to check the sobriety of drivers at the roadside in Smith where he stated that “a procedure cannot be reasonable . . . unless it can be performed at the site of the detention, with dispatch, with no danger to the safety of the detainee and with minimal inconvenience to the detainee” (p. 73).

47Whether a particular screening measure will fall within the scope of authorized police action is a question that necessarily calls for a case-specific inquiry. In more obvious cases of drinking and driving, observation of the driver alone may suffice for effective screening. But one can think of many examples in which observation of the driver through the open car window will not be sufficient to enable the officer to draw the line between those drivers with a permissible amount of alcohol in their body and those who have reached the impermissible level.

48Before turning to the facts of the case before us, let me address one additional argument made during this appeal. It was argued that asking questions about alcohol consumption falls outside the scope of reasonable police screening measures because it introduces an added element of self-incrimination. For this reason, Elias raised the additional question of whether his rights under s. 7 of the Charter had been violated. The same argument was made and rejected in Smith by Doherty J.A. I agree with his analysis of this issue. As he aptly pointed out, the different methods used to assess impairment at the roadside do not involve different degrees of self-incrimination because almost all the information relevant to assessing impairment during a regulatory police stop will come from the accused. Physical sobriety tests, roadside questioning regarding alcohol consumption, and roadside questioning in order to assess whether the driver’s speech is slurred are all intended to use evidence emanating from the driver in order to assess the driver’s level of impairment (Smith, at p. 74). Compliance with the right against self-incrimination protected in s. 7 is essentially achieved by the police informing a detainee of his or her rights under s. 10(b) (Smith, at p. 80; R. v. Hebert, [1990] 2 S.C.R. 151, at p. 177). In effect, Elias’s assertion that the roadside conduct of the police in this case violated his rights under s. 7 is a reassertion of his rights under s. 10(b). Nothing further would be gained by considering the driver’s s. 7 rights.

49To return to the case-specific inquiry relevant to this appeal, in Orbanski, the officer asked the driver if he had been drinking, to which Orbanski answered that he had had one beer at two o’clock. Similarly, in Elias, the driver was asked whether he had been drinking, and he replied that he had. In both cases, the driver’s answer was part of the information used by the officer to form the reasonable suspicion necessary to request a roadside breath sample in the case of Elias, and the reasonable and probable grounds necessary to request a breathalyzer test in the case of Orbanski. The questions were relevant, involved minimal intrusion and did not go beyond what was necessary for the officer to carry out his duty to control traffic on the public roads in order to protect life and property. In my view, the police officers were authorized in each case to make such inquiries.

50The police officer was also authorized to ask Orbanski to perform a physical sobriety test at the roadside. As I have indicated, the inquiry is always case specific. In this case, the request made to Orbanski fell within the scope of reasonable and necessary measures. Having observed Orbanski’s erratic driving and having detected the smell of liquor emanating from the vehicle, the officer requested that the accused step out of the vehicle to perform some sobriety tests. The tests involved reciting the alphabet, walking heel to toe, and following the officer’s finger with his eyes. The trial judge specifically held that these tests were reasonable and necessary:

In my view the interference with liberty in this case was necessary for the carrying out of the police duties described above. The police constable suspected that the appellant had been driving while his ability to drive was impaired by alcohol. However, he did not think that he had reasonable and probable grounds to demand that the appellant take a breathalyzer test. He requested the sobriety tests in order to see whether his suspicions were well founded, — whether he could obtain reasonable and probable grounds for a demand for a breathalyzer test. There is nothing in the evidence to indicate that a roadside breath testing device was available. The sobriety tests were therefore necessary. [p. 189]

The officer was quickly able to determine whether there were grounds to make a breathalyzer request under s. 254(3) of the Criminal Code.

51I therefore conclude in each case that the measures fell within the scope of reasonable police authority conferred by necessary implication from the operational requirements of the combined provincial and federal statutes. However, as discussed earlier, the operational requirements of a statute will only constitute a limit prescribed by law to the extent that their fulfilment is incompatible with the motorist’s right to counsel. This brings me to the next inquiry.

(b) The Implied Limit on the Right to Counsel

52It is important to keep in mind that compliance with s. 10(b) requires not only that detainees be informed of their right and of the means available to exercise it, but that they be provided with a reasonable opportunity to exercise the right to retain and instruct counsel. The question is whether there was an implied limit on such right in these cases. In Thomsen, this Court held that the exercise of the right to counsel was incompatible with the operational requirements underlying the demand for a sample for analysis in a roadside screening device made pursuant to s. 234.1(1) of the Criminal Code (now s. 254(2)). In determining that there was an implicit limitation on the right to counsel prescribed by s. 234.1(1), the Court adopted the reasoning of Finlayson J.A. in R. v. Seo (1986), 25 C.C.C. (3d) 385, and concluded as follows, at p. 653:

That there is to be no opportunity for contact with counsel prior to compliance with a s. 234.1(1) demand is, in my opinion, an implication of the terms of s. 234.1(1) when viewed in the context of the breath testing provisions of the Criminal Code as a whole. A s. 234.1(1) roadside screening device test is to be administered at roadside, at such time and place as the motorist is stopped, and as quickly as possible, having regard to the outside operating limit of two hours for the breathalyzer test which it may be found to be necessary to administer pursuant to s. 235(1) of the Code.

In my view, it logically follows from Thomsen that a limit on the right to counsel is also prescribed during the roadside screening techniques utilized in these cases. If a limit on the right to counsel is prescribed during compliance with a s. 254(2) demand for a sample for analysis in the roadside screening device, then the limit must necessarily be prescribed during the screening measures preceding the demand, conducted with the very objective of determining whether there is a reasonable suspicion justifying the demand. Similarly, the limit must necessarily be prescribed during the screening measure that is the functional equivalent to the roadside screening device, namely, a technique conducted with the very objective of determining whether there are reasonable and probable grounds justifying a s. 254(3) demand for a breath or blood sample.

53I therefore conclude that the limit on the s. 10(b) rights of the drivers in both cases were “prescribed by law”. The remaining question is whether such limit is reasonable and demonstrably justifiable in a free and democratic society.

D. Justification for the Limit on the Right to Counsel

54There are four criteria for assessing whether a limit on a Charter right is reasonable and justified: (1) the objective of the law must be sufficiently important; (2) there must be a rational connection between the limit and the objective; (3) the infringement of the right must be no more than is necessary to meet the objective; and (4) there must be proportionality between the deleterious and the salutary effects of the measure that limits the right or freedom protected by the Charter (R. v. Oakes, [1986] 1 S.C.R. 103; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835).

55There is no question that reducing the carnage caused by impaired driving continues to be a compelling and worthwhile government objective.

56As discussed earlier, because of the nature of the activity, it is necessary that the police be empowered to use effective roadside screening methods to assess the level of impairment of drivers so as to ensure the safety of all users of the highways. Hence the use of reasonable screening methods within the scope that we have discussed, and the implicit abridgment of the right to counsel, are rationally connected to the state objective.

57The infringement on the right to counsel is also no more than necessary to meet the objective. As described earlier, the scope of authorized police measures is carefully limited to what is reasonably necessary to achieve the purpose of screening drivers for impaired driving. Further, the limitation on the right to counsel has strict temporal limits — there is no question that the motorist who is not allowed to continue on his way but, rather, is requested to provide a breath or blood sample, is entitled to the full protection of the Charter right to counsel.

58Finally, the limitation meets the proportionality test. As the Crown concedes, the evidence obtained as a result of the motorist’s participation without the right to counsel can only be used as an investigative tool to confirm or reject the officer’s suspicion that the driver might be impaired. It cannot be used as direct evidence to incriminate the driver: see R. v. Milne (1996), 107 C.C.C. (3d) 118, at pp. 128-31, leave to appeal refused, [1996] 3 S.C.R. xiii; R. v. Coutts (1999), 45 O.R. (3d) 288; R. v. Ellerman, 2000 ABCA 47; and R. v. Roy (1997), 117 C.C.C. (3d) 243. The rationale for this limitation was first set out in Milne and is founded on the purpose of the s. 10(b) right to counsel. This Court described the purpose of the right to counsel in R. v. Bartle, [1994] 3 S.C.R. 173, in these words, at p. 191:

The purpose of the right to counsel guaranteed by s. 10(b) of the Charter is to provide detainees with an opportunity to be informed of their rights and obligations under the law and, most importantly, to obtain advice on how to exercise those rights and fulfil those obligations: R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1242-43. This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him- or herself. Accordingly, a person who is “detained” within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self‑incrimination and to assist him or her in regaining his or her liberty: Brydges, [1990] 1 S.C.R. 190 at p. 206; R. v. Hebert, [1990] 2 S.C.R. 151, at pp. 176-77; and Prosper, [1994] 3 S.C.R. 236. [Emphasis in original.]

As noted by Moldaver J.A. in Milne, at p. 131, it is not difficult to find proportionality in so far as the liberty interest of the detained motorist is concerned because roadside screening techniques “take but a little time and cause only minor inconvenience to the motorist”. He stated, however, that “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” (p. 131). I agree with this conclusion. As stated in Milne, this limitation applies only to evidence obtained from the compelled direct participation by the motorist in roadside tests and, in our case, police questioning about alcohol consumption. Moldaver J.A. explained further, at p. 132:

I am not referring to observations the officer might make of the driver while carrying out other authorized duties. Thus, by way of example, an officer may observe signs of impairment in a driver, such as a strong odour of alcohol, blood‑shot and glassy eyes, dilated pupils, slurred speech, unsteadiness of gait upon the driver exiting the vehicle, or other similar signs. These observations would be admissible at trial to prove impairment.

59In each case before the Court, the impugned evidence was adduced at trial solely to confirm the police officers’ grounds for making the breathalyzer demand. Each driver was informed and given the opportunity to exercise his s. 10(b) right upon arrest and before he was requested to provide incriminating evidence through breath samples. The abridgment of the s. 10(b) right was strictly confined for the purpose of roadside screening and was constitutional.

60For these reasons, I conclude that while both Elias and Orbanski were detained for the purpose of s. 10(b), hence triggering the right to counsel, the operational requirements of the statutory regimes in place in Manitoba prescribed a limitation of the right to counsel. This limitation is justifiable in a free and democratic society given the importance of detecting and deterring drunk driving, the highly regulated nature of driving on public roads, the limits placed by the common law on the types of screening that can be conducted at the roadside, and the limited use that can be made of the compelled evidence collected during the screening process.

E. Section 24(2) Exclusion of Evidence

61Since the limitation on the rights of the accused were prescribed by law and were justifiable under s. 1 of the Charter, there is no need to determine if the evidence obtained during the roadside questioning and sobriety tests should nonetheless be admitted under s. 24(2).

VI. Disposition

62The appeal in Orbanski is dismissed and the order for a new trial is confirmed. The Crown’s appeal in Elias on the question of the s. 10(b) infringement of the Charter is allowed and the order for a new trial is confirmed. In accordance with the judgment of this Court dated February 12, 2004, Mr. Elias is awarded his costs of the appeal on a solicitor-client basis. His request for leave to cross-appeal is denied.

The reasons of LeBel and Fish JJ. were delivered by

LeBel J. (dissenting in Elias) —

I. Introduction

63In the Orbanski case, I agree that the appeal should be dismissed and that the order for a new trial should stand. With respect, though, I adopt the path chosen by the Manitoba Court of Appeal. In short, the action of the police at the roadside infringed s. 10(b) of the Canadian Charter of Rights and Freedoms. Neither statute nor common law limited the appellant’s Charter rights. As a result, the infringement was unjustified. Nevertheless, despite the conscriptive nature of the evidence, a proper interpretation and application of s. 24(2) of the Charter require that it be admitted. In the Elias case, I would dismiss the Crown’s appeal. I would hold that there was an unjustified breach of s. 10(b) of the Charter. Given the particular and limited nature of the appeal, this outcome would have no effect on the decision of the Manitoba Court of Appeal to order a new trial.

64The facts and the judicial history of these cases are set out in my colleague’s reasons. I will return to them only as required by specific aspects of my reasons. I will begin by dealing with the problem of the infringement of s. 10(b) of the Charter. I will then turn to the exclusion of evidence and the application of s. 24(2), but only in respect of the Orbanski appeal, because our Court denied Mr. Elias leave to cross-appeal.

II. The Infringement of Section 10(b) Rights

65The relevant facts are not in dispute. I will briefly review them first in Orbanski and then in Elias.

66At the roadside, a police officer asked Orbanski to perform sobriety tests. The officer told Orbanski that the tests were voluntary and that he could contact a lawyer, although he did not give him the standard Charter warning and did not inform him that duty counsel or legal aid was available. Orbanski declined to call a lawyer and performed the sobriety tests. He failed them and was arrested for impaired driving. At the RCMP detachment, after he had been read his rights and had spoken to a lawyer, he failed the breathalyzer test. He was then charged with impaired driving and driving over the legal limit.

67At trial, the issue became partly one of exclusion of evidence. Orbanski asked the trial judge to exclude, under s. 24(2), the evidence of the failed sobriety tests and the breathalyzer readings, because of the infringement of his s. 10(b) rights at the roadside. The Crown responded first that, if there had been an infringement, it had resulted from a limit prescribed by law, either by statute or by common law rules, and that the limit was justified under s. 1. In addition, it is the Crown’s position that even if it had been unable to justify the infringement, the evidence should not have been excluded.

68As for Elias, two police officers observed him leaving a Winnipeg hotel late one winter night and driving away. He was stopped. An officer smelled alcohol. Questions were put to Elias about his drinking. He failed a screening test, was arrested and informed of his rights and, after speaking to a lawyer, underwent the breathalyzer test, after which he was charged with impaired driving and driving while over the legal limit. After a trial, at which he was acquitted, and subsequent appeals, a majority of the Manitoba Court of Appeal found, as in Orbanski, that there had been an unjustified infringement of his s. 10(b) rights. The same majority then considered the issue of exclusion of evidence. It decided that the results of the screening device test and the breathalyzer test should have been admitted in evidence. One judge, in dissent, would have found no infringement of Charter rights. As a result, the Court of Appeal affirmed the judgment of the summary conviction appeal judge quashing the acquittal and ordering a new trial.

69It is thus necessary in both appeals to determine whether there is a “limi[t] prescribed by law”, in the words of s. 1 of the Charter. If not, there is no justification for the infringement of the right to counsel. In my view, there is no such limit here. While the Crown concedes that the relevant Manitoba statute does not expressly limit the right to counsel, it asserts that such a limit flows impliedly from the statute and from the operational requirements of the interlocking provincial and federal schemes to control and deter drunk driving. It also invokes common law rules governing the duties and powers of police officers. Most respectfully, this argument is essentially a utilitarian one based on expediency rather than legal principles. Drunk driving is evil. Drunk driving is dangerous. Drunk drivers must be swiftly taken off the road. If there is something missing in the statute, let us read in the necessary powers. Failing that, let us go to the common law and find or create something there.

70It is not appropriate to adopt a strained legal interpretation to sidestep inconvenient Charter rights for the greater good. Curtailing Charter protections through the inventive use of the law-making powers of the courts is even less acceptable. Doing so turns the country’s legal system upside down. Ironically enough, while Charter rights relating to the criminal justice system were developed by the common law, the common law would now be used to trump and restrict them.

71There is no doubt that drunk driving is an evil and a serious danger. Nevertheless, it is not the only such problem that the criminal law and the criminal justice system must address. A criminal code does not address the most savoury aspects of human life, nor does it usually deal with paragons of virtue. The criminal law is concerned with child molesters, killers, small- and big-time thieves, drug traffickers, arsonists, terrorists or gangs, drunk drivers and more. Its purpose is to deter and, where deterrence fails, to punish the guilty. Unfortunately, on occasion, its net catches an innocent suspect or accused, as courts have had to acknowledge from time to time. Thus, the criminal law and now the Charter have given rise to principles, rules and processes, which normally govern the operation of the criminal justice system regardless of who the accused is or what charges he is facing. State action is constrained. Law enforcement moves less smoothly and efficiently in the views of some. At least, after a few centuries, the path of the criminal law no longer leads from the gloom and filth of Newgate to a dance in the sky at Tyburn after a brief encounter with a hanging judge. As things stand, the criminal process, even in respect of drunk drivers, is governed by principles of fundamental justice that are set out clearly in the Charter.

72It is tempting to view the question of the right to counsel as nitpicking and equivalent to quibbling about the number of angels on a pinhead. The right to counsel cannot be reduced to such concerns, as our Court has constantly held in cases where the right to counsel or the right to silence have been at stake under s. 7 and s. 10 of the Charter.

73Lamer C.J. stressed the importance of this right ten years ago in R. v. Bartle, [1994] 3 S.C.R. 173. In his view, s. 10(b) of the Charter has a dual purpose of ensuring that detainees are informed about their rights and obligations and that they receive adequate information as to how to exercise those rights or fulfill those obligations:

The purpose of the right to counsel guaranteed by s. 10(b) of the Charter is to provide detainees with an opportunity to be informed of their rights and obligations under the law and, most importantly, to obtain advice on how to exercise those rights and fulfil those obligations: R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1242-43. This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him- or herself. Accordingly, a person who is “detained” within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty: Brydges, at p. 206; R. v. Hebert, [1990] 2 S.C.R. 151, at pp. 176-77; and Prosper. Under s. 10(b), a detainee is entitled as of right to seek such legal advice “without delay” and upon request. As this Court suggested in Clarkson v. The Queen, [1986] 1 S.C.R. 383, at p. 394, the right to counsel protected by s. 10(b) is designed to ensure that persons who are arrested or detained are treated fairly in the criminal process. [Emphasis in original; p. 191.]

74Our Court has never deviated from this doctrine. Its jurisprudence recognizes that “the right to counsel under s. 10(b) is about providing detainees with meaningful choices . . .” (Bartle, at p. 193). Detention triggers this basic constitutional right. A violation of the right is a breach of the Charter, unless it is justified by a rule of law.

75As I mentioned above, the Crown does not dispute that, on the facts of these cases, Orbanski and Elias were denied their rights while being detained at the roadside. For example, in the Orbanski case, the information provided by the police officer did not satisfy the information requirement set out in R. v. Brydges, [1990] 1 S.C.R. 190, although the detainee was told that he could call a lawyer, which he declined to do. The Crown argues at this point that there is a rule of law which limits the right to counsel. In my colleague’s view, the relevant statutes do not include such a rule; its existence derives, rather, from the “operational requirements” of the control of driving and traffic, as well as of roadside screening.

76In the end, the rule would be found in the common law powers of police officers and would be justified under s. 1 of the Charter.

77The rule is thus said to flow from the statutory authority of a police officer to stop vehicles in order to check the sobriety of drivers. For this purpose, the officer is not limited to visual observation of the drivers, but may ask them to undergo sobriety tests or to answer questions about their alcohol intake, as in the cases of Mr. Orbanski and Mr. Elias. The authority for such requests is said to derive first from the operational requirements of the relevant statutes. In addition, it is said to be authorized by the common law rules regarding the discharge of the duties of police officers.

78The argument based on so-called operational requirements of the statutes is an ambiguous one. Further reflection about its nature, basis and potential effects might be useful. This concept was discussed in R. v. Thomsen, [1988] 1 S.C.R. 640, in which our Court interpreted s. 234.1(1) of the Criminal Code, R.S.C. 1970, c. C-34 (now s. 254(2)). The operational requirements concept was used as an interpretive aid to read a limit on the rights of motorists detained at the roadside into the Criminal Code (p. 653). The limit was nevertheless based on the words of the statute, interpreted broadly in their context and in accordance with their purpose. The operational requirements of a statute do not somehow stand apart from the statute as a distinct source of legal powers and obligations somewhere between statute law and common law.

79In the present appeal, contrary to the situation in Thomsen, the power to request sobriety tests or to put questions to the driver regarding his or her consumption is found nowhere in the statutes, not even implicitly or by giving them a broad interpretation. The operational requirements are not used to interpret the statute but seem to merge into the content of and justification for the common law rule, which, according to the Crown’s argument, already exists and would in any event authorize the action of the police officers on the street or at the roadside.

80In the absence of a statutory basis, the operational requirement argument seems to relate more to the justification for a limit than to the existence of the limit. This argument appears to flow from the premise that a particular limitation on constitutional rights is necessary. Because it is necessary, the courts will then create it. At the last stage of this process, these same courts will determine whether the limit they have placed on constitutional rights can be justified under s. 1 of the Charter on the basis of the same necessity which was used to justify the creation of the limit. Circularity is the hallmark of this chain of reasoning, which appears to conflate the process of creating the common law rule with the process of justifying it. The difficulties attendant on such a process appear to confirm the need for prudence in exercising judicial powers to develop the common law in areas which are highly regulated and where Parliament and the legislatures have been active.

81The adoption of a rule limiting Charter rights on the basis of what amounts to a utilitarian argument in favour of meeting the needs of police investigations through the development of common law police powers would tend to give a potentially uncontrollable scope to the doctrine developed in the Waterfield-Dedman line of cases, which — and we sometimes forget such details — the court that created it took care not to apply on the facts before it (R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.)). The doctrine would now be encapsulated in the principle that what the police need, the police get, by judicial fiat if all else fails or if the legislature finds the adoption of legislation to be unnecessary or unwarranted. The courts would limit Charter rights to the full extent necessary to achieve the purpose of meeting the needs of the police. The creation of and justification for the limit would arise out of an initiative of the courts. In the context of cases such as those we are considering here, this kind of judicial intervention would pre-empt any serious Charter review of the limits, as the limits would arise out of initiatives of the courts themselves.

82We must bear in mind the differing constitutional functions and responsibilities of the courts on the one hand, and of legislatures on the other. Also, legislatures are better equipped to investigate and assess the need for enhanced police powers and to integrate required changes into the relevant statutory scheme as a whole. In this constitutional context, where the use of the operational requirement concept is relevant, a more prudent approach to the interplay between the concept and Charter values and rules would appear to be advisable. Otherwise, the lodestar of our constitutional law would become the needs of the police, which would be a new coda to the old Latin dictum “Salus reipublicae suprema lex”. In the present appeals, this is in fact the gist of the prosecution’s argument. It comes down to a few propositions: By statute, the police already have the undisputed power to stop drivers at the roadside. They have the duty and power to check the drivers’ sobriety. For this purpose, they must be authorized to conduct case-specific investigations in the course of which they must be allowed to use the most appropriate methods in the circumstances. Although it is conceded that drivers are under no obligation to perform the tests or to answer the questions, for the sake of investigative efficiency they must not be reminded of their constitutional rights. There appears to be some concern that they might otherwise choose to exercise them. Counsel for one of the interveners said as much at the hearing:

. . . to sum it up, simply put, if they [randomly stopped drivers] were warned, just like if they were advised of their right to counsel, they might very well choose not to answer or not to participate. . . . [Transcript, at p. 82]

In this manner, effective law enforcement would come to depend on individuals’ ignorance of their legal rights. It might be useful to reflect on the very apposite comments of Fish J.A., writing for a unanimous Quebec Court of Appeal in R. v. Charron (1990), 57 C.C.C. (3d) 248:

Clearly, the police are no more required to insist on consultation with counsel than to impose the right to silence. Holding the police to unacceptably onerous requirements would be unfair, unwise and, very likely, counter-productive.

None the less, the right to counsel is now constitutionally entrenched and I see no evil, practical or philosophical, in an officer ensuring that it has been respected. If it has, confirmation by the officer will protect the integrity of his evidence; if not, his inquiry might at least prevent an inadvertent constitutional breach.

In R. v. Jacoy . . . [1988] 2 S.C.R. 548 [at p. 563] . . ., and again in R. v. Debot, . . . [1989] 2 S.C.R. 1140 [at p. 1173], Madam Justice Wilson said, “The right to counsel is surely the main safeguard to the citizen that his or her other rights will be respected”. If the exercise of this right is a threat to our system of justice, then our system of justice, not the right to counsel, should be openly and honestly questioned. [Emphasis in original; p. 254.]

83Granting a power to police which does not impose a corresponding duty on the citizen to cooperate with the investigation can hardly be said to create a rule of law for the purposes of s. 1 of the Charter. The refusal of my colleague Charron J. to give such a scope to a police power under the common law suggests that the existence of a highly regulated environment on public roads and of interlocking and cooperative federal and provincial schemes in this area calls for a solution other than the creation of common law powers through judicial intervention. The existence of complex legislative and regulatory systems and a tradition of frequent and proactive intervention by Parliament and the provincial legislatures point in the opposite direction. The situation is completely different from those where our Court felt the need to develop common law rules in respect of police actions when there were gaps of long standing in the law, as was the case with the investigative detention of passers-by in R. v. Mann, 2004 SCC 52, or with strip searches in R. v. Golden, 2001 SCC 83. A number of legislatures have already dealt with the gap at issue in the present appeals (see, for example, Highway Safety Code, R.S.Q., c. C-24.2, s. 636.1; R. v. Tremblay (1995), 105 C.C.C. (3d) 91 (Que. C.A.)). In Manitoba itself, the legislature had at the time of the hearing adopted amendments to The Highway Traffic Act, S.M. 1985-86, c. 3, C.C.S.M. c. H60, in the Highway Traffic Amendment Act (Police Powers Respecting Unsafe Drivers and Miscellaneous Amendments), S.M. 2004, c. 11. The amendments came into force on December 18, 2004. Among other things, the amendments grant police officers the power to require that detained drivers perform sobriety tests or answer questions about their alcohol consumption. Failure to cooperate has become a provincial offence. Moreover, s. 76.1(6) of the Highway Traffic Act expressly suspends the right to counsel during those investigations. It relieves the police officer of the obligation to read the driver his rights under s. 10(b) of the Charter.

84These provisions are clear. They state legal rules which grant powers or impose obligations. They place limits on Charter rights. Those limits may be challenged, and I do not intend to express premature views about the outcome of such a challenge. Nevertheless, these provisions would place a court in a better position to inquire into proper limits on the relevant constitutional rights and to decide whether the limits meet the proper standards. As things now stand in the two cases now before us, in order to secure the conviction of Mr. Orbanski, which could not be successfully challenged on other grounds anyway, and to answer a hypothetical question in the case of Mr. Elias, our Court makes a needless foray into territory that would have been better left to the legislature.

III. The Exclusion of Evidence and Section 24(2) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

85As I mentioned above, the issue of the exclusion of the evidence under s. 24(2) of the Charter arises only in the Orbanski appeal. It is not before our Court in Elias and I do not intend to comment on its application in that case. In my opinion, despite the violation of Mr. Orbanski’s constitutional rights, the evidence obtained by the police should not have been excluded. A proper application of s. 24(2) does not warrant the exclusion of the evidence. In this respect, Philp J.A. writing for the majority in the Court of Appeal, reached the appropriate conclusion when he decided that the evidence should be admitted.

86Undoubtedly, the present case is not a proper one for a full-fledged review of the problems surrounding the interpretation and the method of application of s. 24(2), especially in the context of what is a partial dissent. Nevertheless, some general comments appear to be in order, because concerns about a quasi-automatic exclusion of evidence may have an impact on the definition of constitutional rights in the criminal process by Canadian courts.

87It is likely that few Charter provisions have generated so much academic comment, conflicting jurisprudential developments, media rhetoric or just plain uneasiness as s. 24(2). Since the Charter came into force, our Court has returned on many occasions to the interpretation and application of this provision. It has developed and refined methods of analysis and application. Despite all these efforts, doubts and misunderstandings remain. They arise mostly from views which attempt to read into the jurisprudence of our Court the creation of an exclusionary rule in the case of conscriptive evidence.

88I do not intend to review all the details of the development of our jurisprudence. Two defining moments in this development occurred in R. v. Collins, [1987] 1 S.C.R. 265, and R. v. Stillman, [1997] 1 S.C.R. 607.

89In Collins, Lamer J., as he then was, created the basic analytical method which has governed the application of s. 24(2) since that time. This method relies first on a classification of relevant factors. Despite the wide range of potentially relevant factors, Lamer J. stated that they can be organized in three broad categories. The first one includes those relating to trial fairness, the second, the seriousness of the breach, and the third, the effect of excluding the evidence on the reputation of the administration of justice. He also pointed out that the adoption of s. 24(2) abolished the traditional Wray principle, which focussed on the reliability and relevance of the evidence rather than on the circumstances under which it had been obtained (R. v. Wray, [1971] S.C.R. 272). At the same time, s. 24(2) should not be confused with a pure exclusionary rule.

90In Collins, Lamer J. indicated that a very important factor in the analysis would be the nature of the evidence. He found that the use of real evidence obtained in a manner that violated the Charter would rarely render a trial unfair, but that this would change whenever the accused was conscripted against himself. The use of such evidence would most likely turn the trial into an unfair one. Nevertheless, nothing in Collins, or in the judgments rendered by our Court in the following years, even suggested that the Charter had imposed an exclusionary rule. Rather, the Charter had granted judges a structured discretion to assess the impact of the breach of constitutional rights on the obtaining of the evidence in order to determine whether it should be excluded.

91Stillman returned to the problems of the structure and the process of the exercise of the judicial discretion to exclude evidence obtained in breach of Charter rights. The reasons of Cory J. certainly put considerable emphasis on the classification of the nature of the evidence and on its impact on the fairness of the trial. On this occasion, Cory J. summarized the recommended analytical steps in the application of s. 24(2) as follows:

1. Classify the evidence as conscriptive or non-conscriptive based upon the manner in which the evidence was obtained. If the evidence is non-conscriptive, its admission will not render the trial unfair and the court will proceed to consider the seriousness of the breach and the effect of exclusion on the repute of the administration of justice.

2. If the evidence is conscriptive and the Crown fails to demonstrate on a balance of probabilities that the evidence would have been discovered by alternative non-conscriptive means, then its admission will render the trial unfair. The Court, as a general rule, will exclude the evidence without considering the seriousness of the breach or the effect of exclusion on the repute of the administration of justice. This must be the result since an unfair trial would necessarily bring the administration of justice into disrepute.

3. If the evidence is found to be conscriptive and the Crown demonstrates on a balance of probabilities that it would have been discovered by alternative non-conscriptive means, then its admission will generally not render the trial unfair. However, the seriousness of the Charter breach and the effect of exclusion on the repute of the administration of justice will have to be considered. [Emphasis in original; para. 119.]

92Stillman generated concerns that our Court was creating an exclusionary rule based primarily on the nature of the evidence. These views were based, at least in part, on the opinion that the strong presumptive link between the use of conscriptive evidence and its impact on the fairness of the trial reduced the application of s. 24(2) to a narrow bright-line rule, based mainly on the legal characterization of the evidence, that did not permit effective consideration to be given to other relevant factors.

93Neither the reasons of Cory J. in Stillman nor a number of recent pronouncements of our Court in cases such as R. v. Fliss, 2002 SCC 16; R. v. Law, 2002 SCC 10; or R. v. Buhay, 2003 SCC 30, have gone that far. Our Court has remained mindful of the principle that the Charter did not establish a pure exclusionary rule. It attaches considerable importance to the nature of the evidence. It is constantly concerned about the potential impact of the admission of conscriptive evidence obtained in breach of a Charter right on the fairness of a criminal trial. Nevertheless, while this part of the analysis is often determinative of the outcome, our Court has not suggested that the presence of conscriptive evidence that has been obtained illegally is always the end of the matter and that the other stages and factors of the process become irrelevant.

94For example, in Buhay, Arbour J. reasserted that, generally speaking, when the admission of conscriptive evidence is liable to jeopardize the fairness of the trial, it may also bring the administration of justice into disrepute. For this reason, it will have to be excluded (para. 49). At the same time, she stressed the comprehensive nature of the intellectual process leading to a decision on the exclusion of evidence. In the end, this process amounts to finding a proper balance between competing interests and values at stake in the criminal trial, between the search for truth and the integrity of the trial (Arbour J., at para. 73; see also: Binnie J. in Fliss, at para. 89). All the Collins factors remain relevant throughout this delicate and nuanced inquiry.

95The same approach was recommended by Bastarache J. in his reasons in Law. He acknowledged that there is agreement that the admission of conscriptive evidence, unlike “real evidence”, will usually affect the fairness of the trial. But Bastarache J. did not accept that Stillman and the jurisprudence of our Court had turned s. 24(2) into an automatic exclusionary rule which applies whenever courts must rule on the admissibility of illegally obtained conscriptive evidence. The views of the Court in Stillman reflect concerns about the continuing effect of self-incrimination throughout the trial (see Law, at paras. 33-34). Although exclusion will often occur at the end of the process, it is not automatic. The inquiry into the admissibility of the evidence must reach the last stage so that it can be determined whether the admission of the evidence would bring the administration of justice into disrepute.

96The application of s. 24(2) remains a delicate matter. The purpose of the provision is to safeguard the integrity of the justice system, which requires a strong emphasis on assuring the fairness of the criminal trial. At the same time, the concept of fairness should not be reduced to a ritual incantation that spares judges from any further thought once the word is said.

97The concept of fairness is a rich and complex one. It concerns the rights not only of the accused, but also of society, to the proper administration of the law, as McLachlin J. (as she then was) pointed out in R. v. Harrer, [1995] 3 S.C.R. 562:

At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trial must not be confused with the most advantageous trial possible from the accused’s point of view: R. v. Lyons, [1987] 2 S.C.R. 309, at p. 362, per La Forest J. Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused. [para. 45]

98The creation and application of a rule, based on a presumption that conscriptive evidence necessarily affects the fairness of a trial, of almost automatic exclusion whenever such evidence is involved might be viewed as a clear and effective method to manage aspects of the criminal trial. Nevertheless, our Court has never adopted such a rule, which could not be reconciled with the structure and the wording of s. 24(2).

99In some cases, the second stage of the procedure, at which the seriousness of the breach is evaluated, is difficult to divorce from the first stage of the analysis, which addresses the nature of the infringement of rights and of the evidence. It may well be impossible to properly balance the competing interests at stake in the evaluation of the fairness of the criminal trial and in the final judgment call as to whether to allow the inclusion of the evidence without considering the seriousness of the infringement and its impact. It may be impossible to divorce the different stages of the analysis, given the logical and factual interplay between them in many cases. The Manitoba Court of Appeal held so, and I agree with its analysis and its conclusion.

100In this appeal, it would not be accurate to describe the evidence as non-conscriptive. Although there was no physical compulsion or violence, the evidence was created by the improper use of state power. The argument that there is no compulsion in such circumstances ignores the reality of many such situations. Given the power commonly granted to police officers and the authority with which they are invested, such encounters at the roadside are perceived as intimidating by the accused. He or she feels the presence of an agent of the state and that agent’s power in law enforcement matters. In accordance with Stillman, the evidence at issue remains conscriptive evidence, but exclusion does not necessarily follow.

101In the present case, as the Court of Appeal found, although the evidence is conscriptive, the breach does not warrant exclusion of the evidence. The Charter rights at stake are important, but not every Charter breach rises to the same level of seriousness and requires the same kind of remedy, especially the exclusion of evidence. Courts must carefully review the circumstances and nature of the infringement.

102Giving incomplete information, apparently in good faith, at the roadside does not rise to the same level of seriousness as sending someone back to another country to face torture and death, holding a suspect incommunicado at a police station for interrogation or denying a suspect a genuine opportunity to communicate with a lawyer. To refuse to concede that the Charter may apply to a wide range of very different situations and that its implementation requires careful attention to context and a sensitive analysis would in the end be to trivialize it.

103Although I have found a Charter breach, it is clear from the evidence that Mr. Orbanski did receive some information. In a very broad sense, some of the duties imposed on the police officer were met. Mr. Orbanski appears to have been given incomplete information about his own rights, but he understood what they were and declined to exercise them.

104As a result, I do not think that the breach went to the fairness of the trial. It was a minor infringement of an admittedly important Charter right. It did not warrant the exclusion of the evidence. I would find that in these circumstances, to exclude the evidence would bring the administration of justice into disrepute.

IV. Disposition

105For these reasons, I would concur with my colleague in the case of Mr. Orbanski and dismiss the appeal. As I indicated above, I would dismiss the Crown’s appeal in the Elias case.