C A N A D A Province de Québec Greffe de Montréal     No:   500‑10‑000026‑870          (450‑36‑000144‑866)

Cour d'appel   ____________________________     Le 29 janvier 1990       CORAM :   Juges Bernier, Chouinard et Fish     ____________________________     GAÉTAN DUBOIS, accusé appelant,     c.     LA REINE, poursuivante intimée     ____________________________

 

 

    LA COUR, statuant sur le pourvoi de l'appelant contre le juyemnt de la Cour supérieure rendu le 20 janvier 1987 à Sherbrooke,  district de St-François, par l'Honorable juge Louis-Philippe Galipeau, rejetant ses appels des décisions de l'Honorable juge Laurent Dubé, qui constituait la Cour des poursuites sommaires, le trouvant coupable d'avoir:

 

 Le ou vers le 23 novembre 1985, illégalement conduit un véhicule moteur alors qu'il avait consommé une quantité d'alcool telle que la proportion d'alcool dans son sang dépassait 80 milligrammes d'alcool par 100 millilitres de sang, soit dans le cas présent, 140 milligrammes d'alcool par 100 millilitres de sang, commettant ainsi l'infraction prévue à l'article 236 du Code criminel (l'article 253(b) du présent Code);

 

  Le ou vers le 23 novembre 1985, étant soumis à une ordonnance de probation depuis le 28 juin 1984, dans le dossier portant le numéro 450-01-000711-841 de la Cour des Sessions de la paix du district de St-François, volontairement omis ou refusé de se conformer à ladite ordonnance de probation, en troublant l'ordre public et n'observant pas une bonne conduite, commettant ainsi l'infraction prévue à l'article 666 du Code criminel (l'article 740 du présent Code).

 

 Après étude du dossier, audition des parties et délibéré;

 

  Pour les motifs exposés aux opinions écrites de messieurs les juges Roger Chouinard et Morris J. Fish, déposées avec le présent arrêt, auxquelles a concouru monsieur le juge Yves Bernier.

 

 ACCUEILLE le pourvoi;

 

  CASSE les déclarations de culpabilité contre  l'applant, prononcées par le premier juge et confirmées par le jugement entrepris;

 

  ACQUITTE l'appelant sur l'accusation d'avoir conduit  un véhicule moteur avec plus de 80 mg. d'alcool par 100 ml. de sang;

 

  RENVOIE  le  dossier  no  450-01-001189-864  (C.Q.) (450-36-000145-863 (C.S.)) au tribunal de première instance pour disposer du deuxième chef (facultés affaiblies) selon la loi;

 

  ORDONNE la tenue d'un nouveau procès sur la dénonciation au dossier no 450-01-001188-866 (C.Q.) (450-36000144-866 (C.S.). JJ.C.A.

 

 OPINION OF FISH, J.A.

 

  This case concerns secs. 10(b) and 24(2) of the Canadian Charter of Rights and Freedoms. It raises once again an issue which seemed to be settled by the Supreme Court of Canada in R. v. Therens, (1985) 1 S.C.R. 613.  And it invites a careful review of subsequent Supreme Court judgments dealing with the right to counsel and the admissibility of évidence obtained in violation of that right.

 

 THE FACTS

 

  Shortly aFter 5 p.m. on November 23, 1985, Gaetan Dubois telephoned the police to repos his involvement in an automobile accident approxiately five minutes earlier.  He said he had struck  "someone  or  something"  on  Route  161,  near Notre-Dame-de-Ham.  Dubois had stopped and looked around, but was unable to find whatever or whomever he had hit.

 

 Approximately thirty minutes later, police officers Donald Lafleur and Michel Rosa met Dubois at the scene of the accident. Rosa found tne dying victim soon afterward in a ditch alongside the dark and slippery highway. Dubois at that point was apparently in the police cruiser.

 

  Rosa asked the accused for his coat and used it to cover the victim.

 

 After summoning an ambulance, Lafleur placed Dubois under arrest and advised him of his "constitutional rights in qeneral" and of his right "to consult a lawyer". Rosa entered the cruiser and asked Lafleur whether he had given Dubois his rights. Dubois was again told he had a right to counsel, that "there were no threats or promises" and that he was under arrest for impaired drivinq.

 

  When advised of his right to counsel, Dubois had just hecome aware that he had struck a person and that the accident appeared fatal Dubois showed no reaction when advised of his rights.  He was very nervous and repetitive.

 

  Here is a telling extract from Rosa's evidence, reproduced in Appellant's factum (p. 116):

 

 R. Ben je me rappelle écoutez, je me rappelle bien là que dans l'automobile on a redit les droits à Monsieur Dubois à savoir qu'il avait droit à un avocat, qu'il n'avait pas de promesses ni menaces puis qu'on, qu'il était sous arrestation pour facultés affaiblies.

 

 Q. O.K. Il est exact de dire que Monsieur Dubois n'a pas de réaction à ça, il n'a pas de... o.k. Et c'est ... ?

 

 R. Monsieur Dubois a des réactions nerveuses.

 

 Q. Oui ?

 

  R.  Et Monsieur Dubois aussi dans certains moments on dirait qu'il est amorphe dans le sens qu'il est perdu peut-être...

 

 Q. Il passe aux deux (2)... ?

 

 R. ...un peu là par la gravité des événements parce qu'il doit certainement le réaliser ce qui se passe j'imagine.

 

 Q. Ben oui j'imagine il y a un choc là qu'il vient d'avoir ?

 

 R. C'est évident.

 

 Q. Il ne savait pas que c'était une victime et on trouve la victime il a un choc ?

 

 R. C'est ça.

 

  Q.  O.K.  Quand il rentre dans la salle d'ivressomètre, je comprends qu'il y a un téléphone dans la salle d'ivressomètre mais je comprends aussi que vous ne lui dites pas bon ben là c'est le temps si tu veux téléphoner là ?

 

 R. On ne lui a jamais mentionné ça.

 

 Q. Jamais mentionné ça o.k. ?

 

 R. On ne lui a jamais donné le téléphone puis on ne lui a jamais donné le bottin téléphonique.

 

  Q.  O.K.  Puis lui il n'a jamais dit qu'il ne voulait pas parler à un avocat ?

 

 R. Il ne l'a jamais demandé puis il ne l'a jamais dit qu'il ne voulait pas lui parler.

 

 Upon arrival at the police station, Dubois was taken directly to the breathalyzer room and given the first test within two or three minutes. It showed a blood-alcohol level of 150 mg/100 ml. The second test was administered twenty-five minutes later and produced a result of 140 mg/100 ml.

 

 Appellant's attention was not drawn to the telephone on one of the desks in the breathalyzer room and at no time prior to either test was Dubois informed that he could consult counsel without delay.

 

  After the second test, Lafleur again advised Dubois of his right to counsel, toId him there was a telephone in the room, that he could contact a Iawyer before making a statement and that any such statement could be used as evidence against him. Dubois did not at that point call a lawyer.  He proceeded instead to make a statement, which was read to him -- Dubois being illiterate -- and he then signed it.

 

  At trial, the voir-dire was waived and the statement admitted in evidence. According to the statement, Dubois consumed two large bottles of beer at around 3 p.m., approximately two hours before the accident.

 

 It appears from the evidence that the victim, prior to being hit, was walking in zig-zag fashion, intermittently on and off the pavement. At the time of impact, he was on the road, approximately 0.80 meters from the soft shoulder. He was darkly clad. The area was unlit. There is no evidence that Dubois was driving at an excessive speed.

 

 THE JUDGMENTS BELOW

 

  Dubois was charged with the breathalyzer offence (now sec. 253(b) of the Criminal Code), with driving while impaired (now sec. 253(a) ) and with breach of a probation order (now sec. 740). He did not testify.

 

 Essentially, his counsel argued that the breathalyzer evidence should be excluded under sec. 24(2) of tMe Charter on the ground that it had been obtained in violation of Dubois's right to counsel, enshrined in sec. 10(b).

 

 Appellant's right to counsel, it was argued, had been violated in several ways.  First, he was not informed, prior to the breathalyzer demand, of his right to retain and instruct counsel without delay.

 

 Second, any waiver of his rights by Dubois was invalid because the evidence disclosed that he was unable, due to his mental state, to understand the consequence of declining to consult a lawyer.  Third, by their haste in subjecting him to the first breathalyzer test immediately upon arrival at the station, the police deprived Dubois of the required reasonable opportunity to exercise his rights.

 

  With exemplary fairness, Crown counsel invited the trial judge to consider all of the circumstances in order to determine whether there had been substantial compliance with sec. 10(b)) even if the police did not use the precise language of the Charter.  He acknovledged that Appellant appeared to have suffered "un choc" following discovery of the victim, but asked whether that was sufficient to conclude Appellant lacked the capacity to exercise his right to counsel.  Was it really necessary, he asked, to specify that Dubois could consult counsel without delay ?  Ultimately, said Crown Counsel, his argument was based on the proposition that Dubois had renounced tacitly to his right to counsel and this constituted an effective and valid waiver of Mis 10(b) rights.

 

  In his brief oral Reasons, the trial judge did not deal with Appellant's submission regarding the mental state of Dubois at the time he was informed of his right to counsel -- i.e., after discovery of the victim.  Nor did he direct his mind to the submission that it was necessary to make plain to Appellant his right to counseI without delay. He simply found that Appellant's conduct from the moment of the accident to the moment of arrest proved he knew what was going on ("savait bien ce qui se passait autour de lui"); that Appellant was physically able to contact a lawyer immediately because there was a telephone on the desk in the room he first entered at the police station; and, finally, that nothing was done to interfere with exercise by the accused of his right to counsel.

 

 The trial judge convicted Dubois on the breathalyzer charge and on the charge of wilfully failing to comply with the probation order.  The charge of impaired driving, in view of the breathalyzer conviction, was then stayed.

 

  On appeal to the Superior Court, Galipeau J. confirmed both convictions. Like the trial judge, Galipeau J.  did  not specifically consider Appellant's submission that his rights under sec. 10(b) had been violated in that he was not informed of his right to counsel without delay.

 

  In a written judgment, he found that the police may have erred in interpreting Appellant's silence as a waiver of his right to counsel; may have proceeded with undue haste in subjecting Appellant to a breathalyzer test a few minutes after his arrival at the station; and perhaps, in this way, did not allow Appellant to consult counsel without delay, thereby breaching his fundamental rights.

 

 Galipeau J. also recognized that the speed with which the test was administered might have prevented Dubois from quicly making his choice and expressing his wish to exercise his right to retain counsel. He nonetheless dismissed Dubois's appeal on two main grounds:  First, because Dubois had been previously convicted on charges of the same kind and therefore "certainly" understood his rights; second, access to counsel would have been of no practical consequence, since a lawyer would have been obliged to advise Dubois to take the breathalyzer test.

 

 Here, in his own words, though with emphasis added, is the reasoning of Galipeau J. (reproduced in Appellant's Factum at pp. 43-45):

 

 La preuve démontre que l'appelant n'en était pas à sa première arrestation pour conduite avec plus de 80 mg d'alcool dans le sang, ni non plus à  sa  première  expérience  du  test d'ivressomètre. S'il se fut agi d'une personne sans expérience, on pourrait présumer, devant la gravité de pareille situation, qu'elle n'était pas en mesure de comprendre ce en  quoi consistait le droit de recourir aux services d'avocat quand, ces deux fois, on l'informe de ce droit.

 

  L'appelant devait avoir et il avait certainement connaissance de la portée de son droit de recours à l'avocat, ne serait-ce que grâce à son expérience devant les tribunaux pour des offenses de même nature.

 

 La boisson consommée, pas plus que le choc ressenti, ne semblent l'avoir abattu au point de lui faire perdre totalement l'usage de ses facultés d'appréciation du droit dont l'a informé l'agent Lafleur.  En ce sens, l'appelant a été informé sans délai de son droit de recourir à l'assistance d'un avocat, dès son arrestation. Il serait excessif d'exiger des agents de la paix de répéter continuellement ses droits à une personne arrêtée jusqu'à ce que cette dernière leur ait expressément fait connaître sa décision d'exercer ce droit ou d'y renoncer.

 

 Les agents Rasa et Lafleur n'ont pas manqué non plus à leur obligation d'informer l'appelant de son droit de recours à l'assistance d'un avocat pour n'avoir pas  réitéré  cette information une fois rendus au poste et avant de procéder au test d'ivressomètre.

 

 Peut-être ont-ils eu le tort d'interpréter le silence de l'appelant comme une renonciation tacite de sa part à l'exercice de ce droit !

 

  Peut-être ont-ils agi avec précipitation en procédant au test d'ivressomètre dans les quelques minutes après leur arrivée au poste !

 

  Peut-être, qu'en ce sens, ils n'ont pas permis à l'appelant d'avoir recours sans délai à l'assistance d'avocat et qu'ainsi faisant, ils ont brimé un droit fondamental de l'appelant.

 

  Il faut pourtant réaliser que les policiers doivent appliquer le test de l'ivressomètre avec diligence faute de quoi ce test n'a plus aucune valeur probante.  Il ne leur incombe pas de forcer l'accusé à rejoindre un avocat, pas plus qu'il leur appartient d'empêcher ce dernier d'exercer de droit. Pour que justice soit faite, il suffit que les parties observent le juste milieu.

 

 Au point de vue pratique, l'exercice du recours à l'assistance d'un avocat n'aurait, dans cette cause, rien changé à la situation. En effet, l'avocat de l'appelant n'aurait pas pu lui conseiller de refuser de passer le test puisqu'il lui aurait conseillé alors de commettre un acte illégal et aurait fait courir à l'appelant le risque d'être accusé de refuser de se soumettre  à  ce  test.   En se soumettant au test de l'ivressomètre, l'appelant n'a pas fourni un élément de preuve dans des conditions qui portent nécessairement atteinte à ses droits et libertés garantis par la charte.

 

 Ces droits auraient-ils été atteints, l'utilisation de cette preuve ne serait pas nécessairement de nature à déconsidérer l'administration de la justice.

 

 En effet, l'utilisation d'une confession arrachée en vitesse avant que n'arrive l'avocat de la personne arrêtée pour le motif évident qu'en présence de cet avocat la confession ne serait pas donnée,  ce serait là déconsidérer l'administration de la justice. Mais faire passer un test d'ivressomètre en l'absence d'une avocat, sachant que la présence de ce dernier ne pourrait rien changer à la situation puisqu'il serait forcé de conseiller à son client arrêté de passer le test, et admettre en preuve le résultat  du  test ne sont pas de nature à déconsidérer l'administration de la justice.

 

 Le tribunal, après avoir examiné la situation ainsi que les témoignages rendus, en vient à la conclusion que l'appelant a bel et bien été avisé sans délai de son droit d'avoir recours à l'assistance d'un avocat; il est également d'avis que les policiers n'ont pas volontairement empêché l'appelant d'avoir recours sans délai à l'assistance d'un avocat. Cependant, il faut reconnaître que la rapidité avec laquelle  ils  ont administré le test de l'ivressomètre a pu empêcher l'appelant de faire rapidement son choix et d'exprimer sa volonté d'exercer son droit de recours à l'assistance d'un avocat.

 

 Mais ce n'est pas là une raison suffisante pour écarter cette preuve:  son utilisation n'est pas de nature à déconsidérer l'administration de la justice.

 

 On the hearing before this Court, the Crown concedes that Galipeau J.  erred in considering appellant's record, since it was in proof not on the merits but only on sentence. The Crown argues, however, that there was ample evidence, apart from the previous convictions, to support an inference that Dubois understood his situation.

 

  Crown counsel concedes that Galipeau J. erred as well in holding that admission of the breathalyzer evidence, despite a violation  of the right to counsel, would not bring the administration into disrepute, since a lawyer could  have "changed nothing" on a charge of this kind.

 

  On this point, again with commendable candour, the Court's attention was drawn to Black v. R., 70 C.R. (3d) 97.  In that case, delivering the Reasons of the Court, Wilson J. said (at p. 109):

 

  In my opinion, it is improper for a court to speculate about the type of legal advice which would have been given had the accused actually succeeded in contacting counsel after the charge was changed. If the Crown's argument on this point were sound,  each  time an accused was asked to blow into a breathalyzer there would be no need to advise the accused of his s. 10(b) rights since it might be assumed that counsel would advise the accused that he should submit to the breathalyzer on the basis that failure to do do constitutes a criminal offence. Such reasoning runs directly afoul of this court's judgments in R. v. Therens (1985), 18 C.C.C. (3d) 481, 18 D.L.R. (4th) 655, (1985) 1 S.C.R. 613 (S.C.C.), and R. v. Trask (1985), 18 C.C.C. (3d) 514, 19 D.L.R. (4th) 123, (1985) 1 S.C.R. 655 (S.C.C.). It also totally defeats the purpose of s. 10(b).

 

 More recently still, in Debot (S.C.C., December 7, 1989, not yet reported, at p. 18) Madame Justice Wilson reaffirmed the

 

  ...inherent benefit of knowing one's rights and the value of having legal counsel available to dispel uncertainty and provide assurance to the suspect that the officers do have the authority they are seeking to assert. Counsel's role, therefore, is not limited to advising a suspect of his or her options where such options exist. It is broader than that.

 

 (See also Simmons, (1988) 2 S.C.R. 495, per Dickson C.J., cited by Wilson J., in Debot at pp. 17-18.)

 

 SECTIONS 10(b) AND 24(2) OF THE CHARTER

 

 The right to counsel is a fundamental and indispensible characteristic of any free and democratic society. It is the sine qua non of due process and of a fair trial.  But is a hollow right indeed if those in acute need of its protection -- persons under arrest or detention -- are ignorant of their entitlement to the advice of a lawyer then and there. It is a hollow right as well if those in need, although informed of the right to counsel, are deprived of a reasonable opportunity to exercise it. And it is an unkept social promise if violation of the right to counsel is subject to no effective sanction and is condoned by the courts.

 

  In my view, the combined purpose of secs. 10(b) and 24(2) of the Charter is to constitutionalize these values and thereby to ensure that the right to counsel in Canada is meaningful and not illusory. We must interpret them accordingly: Hunter v. Southam Inc., (1984) 2 S.C.R. 145 at p. 157; R. v. Big M Drug Mart Ltd., (1985) 1 S.C.R. 295.

 

  The enormous difference between theory and practice in pre-Charter times underscores the need to enforce every aspects of sec. 10(b) and in that way to protect the right to counsel from encroachment by increment, large or small.

 

 As a concept, the right to counsel was well-developed long before the Charter. Its fundamental importance to the equitable administration of justice -- generally and with particular reference to the confidentiality of the relationship -- was reaffirmed by the Supreme Court of Canada in Solosky

 

  v. R., 16 C.R. (3d) 294, Dickson J. (as he then was) said (at pp. 305-7):

 

 As I have indicated, the main ground upon which the appellant rests his case is solicitor-client privilege. The concept of privileged communications between a solicitor and his client has long been recognized as fundamental to the due administration of justice.  As Jackett C.J.F.C. aptly stated in Re Shell Can. Ltd., (1975) F.C. 184, 29 C.R.N.S. 361, 18 C.P.R. (2d) 70, 22 C.C.C. (2d) 70 at 78-79, 55 D.L.R. (3d) 713 (sub nom. Re Director of Investigation & Research and Shell Can. Ltd.)(C.A.):

 

  "...the protection civil and criminal, afforded to  the individual by our law is dependent upon his having the aid and guidance of those skilled in the law untrammelled by any apprehension that the full and frank disclosure by him of all his facts and thoughts to his legal advisor might somehow become available to third persons so as to be used against him."

 

 The history of the privilege can be traced to the reign of Elizabeth I: see Berd v. Lovelace (1577), Cary 62, 21 E.R.33 (Ch.), and Dennis v. Codrington (1579), Cary 100, 21 E.R. 53 (Ch.). It stemmed from respect for the "oath and honour" of the lawyer, duty bound to guard closely the secrets of his client, and was restricted in operation to an exemption from testimonial compulsion. Thereafter, in stages, privilege was extended to include communications exchanged during other litigation, those made in contemplation  of  litigation,  and  finally  any consultation for legal advice, whether litigious or not.

 

 The classic statement of the policy grounding the privilege was given by Brougham L.C. in Greenough v. Gaskell (1833), 1 My. & K. 98, 39 E.R. 618 at 620-21:

 

 "The foundation of this rule is not difficult to discover.  It is not (as has sometimes been said) on account of any particular importance which the law attributes to the business of legal professors, or any particular disposition to afford  them protection, though certainly it may not be very easy to discover why a like privilege has been refused to others, and especially to medical advisers.

 

 "But it is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on, without the aid of men skilled in jurisprudence, in the practice of the Courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings.  If the privilege did not exist at all, every one would be thrown upon his own legal resources; deprived of all professional assistance, a man would not venture to consult any skilful person, or would only dare to tell his counsellor half his case."

 

  The rationale was put this way by Jessel M.R. in Anderson v. Bank of B.C. (1876), 2 Ch.D. 644 at 649 (C.A.):

 

 "The object and meaning of the rule is this: that as, by reason of the complexity and difficulty of our law, litigation can only be properly conducted by professional men, it is absolutely necessary that a man, in order to prosecute his rights or to defend himself from an improper claim, should have resource to the  assistance of professional lawyers, and it being so absolutely necessary, it is equally necessary, to use a vulgar phrase, that he should be able to make a clean breast of it to the gentleman whom he consults with a view to the prosecution of his claim, or the substantiating of his defence against the claim of others; that he should be able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him should be kept secret, unless with his consent (for it is his privilege, and not the privilege of the confidential agent), that he should be enabled properly to conduct his litigation."

 

 The fundamental importance of the right to counsel has been recognized internationally as well. In its landmark report, in 1969, the Canadian Committee on Corrections  (the  Ouimet Committee), cited (at pp. 131-32) the following statement of principle enunciated in 1965 at the Third United Nationas Congress on the Prevention of Crime and Treatment of Offenders:

 

 ...that adequate and timely legal assistance must be available as  of  right to all arrested and acoused persons at a sufficiently early stage in the criminal process adequately to protect their human rights and to ensure non-discriminatory application of the criminal law ta all citizens.  This aim is justified not only in terms of human rights and social decency, but also because the failure to provide adequate legal aid may well leave the convicted person with a sense of injustice...

 

  Concerning the right to counsel while in police custody, the Committee wrote (at pp. 141-42):

 

 It is the view of the Committee that in this country the right of an accused in Police custody to communicate with a lawyer, or the right of a lawyer retained by the accused to consult with him at the police station, does not admit of doubt.  The right of a person in police custody to retain and instruct counsel without delay imposes a corresponding obligation on the police to afford the prisoner in their custody a reasonable opportunity to communicate with a lawyer and to permit the lawyer to consult privately with his client.

 

 And at p. 150:

 

  The Committee is of the opinion that the right of a person in police custody to communicate with a lawyer is a fundamental right.  In our view, the abrogation or infringement of that right is incompatible with the dictates of a free society.

 

 Even its recognition in sec. 2(c)(ii) of the Canadian Bill of Rights, however, did not transform the right to counsel from a recognized concept into an effective safeguard of Canadian justice. As the Ouimet Report explained (at p. 143):

 

  No sanctions are, however, contained in the Bill of Rights for a violation of the right recognized therein of a person who has been arrested or detained, to retain and instruct counsel without delay, although it has been suggested that such a violation attracts both civil and criminal liability. As the Committee has pointed out, civil actions for damages have proved reasonably effective to deter trespassory interferences with person or property arising out of assaults, false arrests and illegal searches. Neither civil remedies nor criminal sanctions are, however, likely to be effective to restrain violations of a civil liberty, such as the right to counsel, because of the lack of supporting physical evidence and corroborative circumstances.

 

 Contrary to popular belief such a violation does not invalidate the subsequent trial.  Nor does it render inadmissible real or physical evidence discovered subsequent to, or as a consequence of, a violation of accused's rights to remain counsel.

 

  (See also Grossman, Brian A. "The Right to Counsel in Canada", 10 Can.

 

 Bar J. 189 and Tarnopolsky, Walter S. (now of the Ontario Court of Appeall "The Lacuna in North American Civil Liberties -- The Right to Counsel in Canada", 17 Buffalo Law Rev. 145 (1967), both referred to in the Ouimet Report at p. 138, fn. 17.)

 

 Indeed, as recently as 1974, the Supreme Court of Canada held in Hogan v. R., 18 C.C.C.(2d) 65, tMat evidence obtained in violation of an accused's right to counsel was admissible against him notwithstanding sec. 2(c) (ii) of the Canadian Bill of Rights.

 

  Regrettably, during that same period, this aspect of justice according to law -- the amissibility of evidence obtained in violation of the right to counsel -- was a fact of life not lost on all police forces.

 

  In 1975, a manual used by the R.C.M.P. in a course for its senior investigators was tabled in the House of Commons. Professor Ratushny, in his important book, Self-incrimination in Canada, at p. 209, reproduces the advice of the training manual on what to do when deceit and brainwashing fail to secure a confession:

 

 Certainly to begin with in any interrogation we are going to do everything that is legal and right...

 

  But there is a point...(at) which the interrogator must make a decision: does he now leave the interrogation room without the statement or does he now proceed with other techniques which he knows will not allow the statement in but may give him information which will lead to the securing of other evidence which itself may be admissible. I suggest that at this point that the Marquis of Queensbury Rules go out the window and the interrogator must open up his bag of tricks and go for the recovery of the weapon or the stolen property or the names of accomplices or any evidence which may be presented in court regardless of the method employed to secure that evidence.

 

  (Prof.  Ratushny's emphasis.)* - *By way of additional background, I add a footnote concerning widespread violation of the right to counsel in this jurisdiction. In a survey of the Montreal criminal bar conducted in 1968 for the  Prévost Commission, 73.7 per cent or defence counsel and 39 per cent of Crown Counsel reported from personal experience that detainees were not permitted to contact lawyers upon arrest. Nearly two-thirds of defence counsel and half the prosecutors said the police frequently ("3 or 4 times out of five") allowed detainees to call counsel only after they had qiven a statement or made a confession:    See  Report,  Commission  d'enquête  sur l'administration de la iustice en matière Criminelle et pénale, Annexe 5, pp. 57-61 (Québec, 1969).  As well,  in  the mid-sixties, it was not uncommon for prosecutors to question, into the early hours of the morning, suspects who to their knowledge had been denied access to counsel by the police. Coroners and fire commissioners participated in the process and, worst of all, it was tolerated by the entire legal community with virtual indifference.

 

  This is a real chapter of the recent history in Canada of the right to counsel. It seems far removed from our present légal environment. But it is part of the background to secs. 10(b) and 24(2) of the Charter and of the reason to resist their erosion and to protect their integrity. This background, in turn, helps to explain the implicit concerns and the underlying philosophy of Therens(1), Clarkson(2), Manninen(3), Ross(4) and Black(5), to which I now turn.

 

 (1) (1985) I S.C.R. 613.

 

 (2) (1987) I S.C.R. 265.

 

 (3) (1987) I S.C.R. 1233.

 

 (4) (1989) 46 C.C.C. (3d) 129 (S.C.C.).

 

 (5) 70 C.R. (3d) 97.

 

 In Therens, the facts found by the trial judge are set out (at p. 628) as follows:

 

  (a) On April 14th. 1982, at approximately 10:30 P.M., the accused was operating a motor vehicle in a street in the City of Moose Jaw at which time he lost control of the vehicle and it collided with a tree at the side of the street.

 

  (b) Very shorly thereafter, Constable Measner of the Moose Jaw City Police Department arrived at the scene and conducted an investigation.

 

  Constable Measner, having reasonable and probable grounds for doing so, made a demand on the accused under the provisions of Section 235(I) of the Criminal Code requiring the accused to accompany him for the purpose of obtaining samples of the accused's breath for analysis.

 

 The accused accompanied the officer and supplied samples of his breath in compliance with the demand.

 

 (c) The accused was at no time informed of any rights to retain and instruct counsel.

 

  (d) The accused was co-operative throughout the investigation and was at no time placed under arrest.

 

 The supreme Court of Canada held that:

 

 (1) by virtue of the demand, the accused was "detained" within the meaning of sec. 10(b) of the Charter;

 

  (2) the accused therefore had a right to ccunsel without delay and a right to be informed of that right;

 

 (3) the breathalyzer evidence had been obtained in a manner that violated these rights; and

 

  (4) admission of the breathalyzer evidence would bring the administration of justice into disrepute and the evidence therefore had to be excluded.

 

  Estey J. (Beetz, Chouinard and Wilson JJ., concurring) held at pp. 621-22:

 

 Here the police authority has flagrantly violated a Charter right without any statutory authority for so doing. Such an overt violation as occurred here must, in my view, result in the rejection of the evidence thereby obtained. We are here dealing only with direct evidence or evidence thereby obtained directly and I leave to another day any consideration of evidence thereby indirectly obtained. To do otherwise than reject this evidence on the facts and circumstances in this appeal would be to invite police officers to disregard Charter rights of the citizens and to do so with an assurance of impunity.  It s. 10(b) of the Charter can be offended without any statutory authority for the police conduct here in question and without the loss of admissibility of evidence obtained by such a breach then s. 10(b) would be stripped of any meaning and would have no place in the catalogue of "legal rights" found in the Charter.

 

 The violation by the police authority of a fundamental Charter right,  which  transpired here, will render this evidence inadmissible.

 

 Admitting this evidence under these circumstances would clearly "bring the administration of justice into disrepute".

 

 Lamer J. (Dickson C.J. concurring on these points) wrote at pp. 624-25:

 

 I do not want to be taken here as giving an exhaustive definition of the s. 10(b) rights and will limit my comments in that respect to what is stricly required for the disposition of this case.  In my view s.  10(b) requires at least that the authorities inform the detainee of his rights, not prevent him in any way from exercising them and where a detainee is required to provide evidence which may be incriminating and refusal to comply is punishable as a criminal offence, as is the case under s. 235 of the Code s. 10(b) also imposes a duty not to call upon the detainee to provide that evidence without first informing him of his s. 10(b) rights and providing him with a reasonable opportunity and time to retain and instruct counsel. Failure to abide by that duty will lead to the obtainment of evidence in a manner which infringes or denies the detainee's s. 10(b) rights. Short of that s. 10(b) would be a near empty right, as remedies could seldom affect the admissibility of evidence obtained through the accused.

 

 and at 625-26:

 

  In this case, the test was required by the peace officer and then given to the detainee prior to his being informed of his right to counsel. By so doing, the police officer violated the accused's rights under s. 10(b) and obtained the "breathalyzer evidence" in a manner which infringed and denied those rights.

 

  I would decide the disposition of this case as does Estey J., and for the reasons he sets out in his judgment.  Indeed, I am of the view that admitting the breathalyzer evidence in this case would bring the administration of justice into disrepute.

 

 In effect, therefore, Estey J., in the passage quoted, spoke for six of the nine Justices who heard the appeal.

 

  Le Dain J. underlined the importance of sec. 10(b) of the Charter in the following terms (at pp. 638-39):

 

 Although it is clear that in several instance, as in the case of s. 10, the framers of the Charter adopted the wording of the Canadian Bill of Rights, it is also clear that the Charter must be regarded, because of its constitutional character, as a new affirmation of rights and freedoms and of judicial power and responsibility in relation to their protection.  This results from s. 52 of the Constitution Act. 1982, which removes any possible doubt or uncertainty as to the general effect which the Charter is to have by providing that it is part of the supreme law of Canada and that any law that is inconsistent with its provisions is to the extent of such inconsistency of no force and effect, and from s. 24 of the Charter, which provides that anyone whose guaranteed rights or freedoms have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.  In considering the relationship of a decision under the Canadian Bill of Rights to an issue arising under the Charter, a court cannot, in my respectful opinion, avoid bearing in mind an evident fact of Canadian judicial history, which must be squarely and frankly faced: that on the whole, with some notable exceptions, the courts have felt some uncertainty or ambivalence in the application of the Canadian Bill of Rights because it did not reflect a clear constitutional mandate to make judicial decisions having the effect of limiting or qualifying the traditional sovereignty of Parliament.  The significance of the new constitutional mandate for judicial review provided by the Charter was emphasized by this Court in its  recent decisions in Law Society of Upper Canada v. Skapinker, (1984) 1 S.C.R. 357, and Hunter v. Southam Inc., supra.

 

  Moreover, despite the similarity in the wording of s. 2(c) of the Canadian Bill of Rights and s. 10 of the Charter, there is a difference under the Charter in the scope or content of the right to counsel and in the approach to the qualification or limitation of the right that must, I think, have an influence on the interpretation and application given to it.  Section 10(b) of the Charter guarantees not only the right to retain and instruct counsel without delay, as under s. 2(c)(ii) of the Canadian Bill of Rights, but also the right to be informed of that right.  This, in my opinion, shows the  additional importance which the Charter attaches to the right to counsel.

 

 At p. 641:

 

  The purpose of s. 10 of the Charter is to ensure that in certain situations a person is made aware of the right to counsel and is permitted to retain and instruct counsel without delay. The situations specified by s. 10 - arrest and detention - are obviously not the only ones in which a person may reasonably require the assistance of counsel, but they are situations in which the restraint of liberty might otherwise effectively prevent access to counsel or induce a person to assume that he or she is unable to retain and instruct counsel.

 

 And at pp. 652-3:

 

 The factors or circumstances to be taken into consideration in determining whether the admission of evidence would bring the administration of justice into disrepute have also been the subject of considerable commentary by courts and scholars. It would not be wise to attempt an exhaustive identification of the relevant factors in this case. However, certain of them have, in my opinion, been properly affirmed in the cases as being of particular relevance and weight, especially in the context of the right under s. 8 of the Charter to be secure against unreasonable search and seizure.  In this context the two principal  considerations  in the balancing which must be undertaken are the relative seriousness of the constitutional violation and the relative seriousness of the criminal charge. The relative seriousness of the constitutional violation has been assessed in the light of whether it was committed in good faith, or was inadvertent or of a merely technical nature, or whether it was deliberate, wilful or flagrant. Another relevant consideration is whether the action which constituted the constitutional violation was motivated by urgency or necessity to prevent the loss or destruction of the evidence.

 

  The application of these factors to a denial of the right to counsel involves, in my view, a different balance because of the importance of that right in the administration of criminal justice.  In my opinion, the right to counsel is of such fundamental importance that its denial in a criminal law context must prima facie discredit the administration of justice.  That effect is not diminished but, if anything, increased by the relative seriousness of the possible criminal law liability. In view, however, of the judgment of this Court in Chromiak, the police officer in this case was in my opinion entitled to assume in good faith that the respondent did not have a right to counsel on a demand under s. 235(1) of the Criminal Code.

 

  Because of this good faith reliance. I am unable to conclude, having regard

 

 to all the circumstances, as required by s. 24(2) of the Charter, that the admission of the evidence of the breathalyzer test in this particular case would bring the administration of justice into disrepute. See Tarnopolsky J.A. in Simmons, supra, at pp. 228-29. The evidence cannot, therefore, be excluded.

 

 As this conclusion indicates, I am also of the opinion that the question whether evidence must be excluded because, having regard to all the circumstances, its admission would bring the administration of justice into disrepute is a question of law which may be determined by a court without evidence of the actual or likely effect of such admission on public opinion. Obviously  the  application  of  the  relevant factors or considerations will turn in some cases on matters of fact which must be established by evidence, but the meaning and application of the standard in s. 24(2) is, like other questions of admissibility of evidence, a question of law.  A court is the best judge of what would bring the administration of justice into disrepute.

 

 Though Estey J. characterizes the 10(b) violation as "flagrant" and "overt" (at p. 621), the entire Court and not just Le Dain J. may have proceeded in Therens on the assumption that the police were unaware of their duty to comply with sec. 10(b) and to that extent were acting in good faith. See, however, the judgment in the Saskatchewan Court of Appeal, (1983) 33 C.R. (3d) 204 at p. 223, where it is pointed out that, prior to the date of the alleged offence, all police officers in Saskatchewan were directed by the Attorney General to comply with sec.

 

 10(b), notwithstanding Chromiak.(6)

 

 (Of the two remaining Justices who heard Therens, McIntyre J. would have admitted the breathalyzer evidence, while Ritchie J. took no part in the judgment.)

 

 (6) (1979) 1 S.C.R. 471.  In Chromiak, The Supreme Court of Canada had decided that the subject of a breathalyzer demand (a) is not "arrested or detained" within the meaning of the Canadian Bill of Rights; (b) does not have a right to counsel; and (c) for that reason, failure of the police to afford him that right does not constitute a "reasonable excuse" for refusing to take the test.

 

 In any event, the "flagrant" or "overt" violation of the accused's right to counsel in Therens amounted to no more than simple failure to comply with s. 10(b) and the case thus decides that this alone is an adequate and appropriate reason for excluding breathalyzer results.

 

  Exclusion of the evidence, of course, is not automatic. Circumstances of the kind present in Tremblay(7), which I will later consider, might result in admission of the evidence. But the critical point is that the Court in Therens found violation of the right to counsel, because of the importance of that right, sufficient in itself to satisfy a tribunal that admission of the evidence thereby obtained would bring the administration of justice into disrepute.(8)

 

 (7) (1987) 2 S.C.R. 435.

 

 (8) Professor Hogg adds that Therens cannot be explained by any distinguishing circumstances, since "exactly the same decision was given without hesitation by the Court in two other breath sample cases that reached the Court at the same time": See Peter W. Hogg, "Exclusion of Evidence under the Charter of Rights", a paper delivered in Toronto to the Ontario Criminal Lawyers' Association on November 4, 1989.  The judgments referred to, handed down the same day as Therens, are Trask, (1985) 1 S.C.R. 655 and Rahn, (1985) 1 S.C.R. 659.

 

 I jump ahead briefly to draw attention, in the context of Therens, to R. v. Collins, (1987) 1 S.C.R. 265, where Lamer J., after setting out guidelines for applying sec. 24(2) of the Charter, said at p. 286:

 

  At least at this early stage of the Charter's development, the guidelines set out are sufficient and the actual decision to admit or exclude is as important as the statement of any test. Indeed, the test will only take on meaning through  our disposition of cases.

 

  Earlier, at pp. 284-5, Justice Lamer discussed in these terms the factors to be considered under sec. 24(2):

 

  It is clear to me that the factors relevant to this determination will include the nature of the evidence obtained as a result of the violation and the nature of the right violated and not so much the manner in which the right was violated.  Real evidence that was obtained in a manner that violated the Charter will rarely operate unfairly for that reason alone. The real evidence existed irrespective of the violation of the Charter and its use does not render the trial unfair.  However, the situation is very different with respect to cases where, after a violation of the Charter, the accused is conscripted against himself through a confession or other evidence emanating from him.  The use of such evidence would render the trial unfair, for it did not exist prior to the violation and it strikes at one of the fundamental tenets of a fair trial, the right against self-incrimination. Such evidence will generally arise in the context of an infringement of the right to counsel. Our decisions in Therens, supra, and Clarkson v. The Queen (1986) I S.C.R. 383, are illustrative of this. The use of self-incriminating evidence obtained following a denial of the right to counsel will generally go to the very fairness of the trial and should generally be excluded.

 

  Clarkson v. R., 50 C.R. (3d) 289, the Supreme Court of Canada dealt with waiver by an accused of the rights guaranteed by sec. 10 (b) of the Charter. Charged with murder, Clarkson was in an advanced state of intoxication when advised of her rights. She said there was "no point" in consulting counsel. The police persisted in interrogating her despite efforts by Clarkson's aunt to halt the questioning until a lawyer was present.  The Supreme Court held that Clarkson's 10(b) rights had been violated and that her statement should be excluded under sec. 24(2).

 

 For the majority, Wilson J. said as follows:

 

 At pp. 301-2:

 

  The question whether the appellant's right to counsel has been violated may well provide an acceptable alternative approach to the problem posed by the police extraction of an intoxicuted confession.

 

 This right, as entrenched in s. 10(b) of the Canadian Charter of Rights and Freedoms, is clearly aimed at fostering the principles of adjudicative fairness. As Lamer J. indicated in R. v. Therens, (1985) 1 S.C.R. 613 at 624, 45 C.R. (3d) 97, (1985) 4 W.W.R. 286, 38 Alta.

 

 L.R.(2d) 99, 32 M.V.R. 153, 18 C.C.C. (3d) 481; 18 D.L.R. (4th) 655, 13 C.R.R. 193, 40 Sask. R. 122, 59 N.R. 122 (Sask.):

 

  ...where a detainee is required to provide evidence which may be incriminating...s. 10(b) also imposes a duty not to call upon the detainee to provide that evidence without first informing him of his s. 10(b) rights and providing him with a reasonable opportunity and time to retain and instruct counsel.

 

 This constitutional provision is clearly unconcerned with the probative value of any evidence obtained by the police but rather; in the words of Le Dain J. in Therens, its aim is "to ensure that in certain situations a person is made aware of the right to counsel" (p. 641) where he or she is detained by the police in a situation which may give rise to a "significant legal consequence" (p. 642).

 

 Given the concern for fair treatment of an accused person which underlies such constitutional civil liberties as the right to counsel in s. 10(b) of the Charter, it is evident that any alleged waiver of this right by an accused must be carefully considered and that the accused's awareness of the consequences of what he or she was saying is crucial. Indeed, this court stated with respect to the waiver of statutory procedural guarantees in Korponey v. A.G. Can., (1982) 1 S.C.R. 41 at 49, 26 C.R. (3d) 343, 65 C.C.C.(2d) 65, 134 D.L.R.(3d) 354, 44 N.R. 103 (sub nom. R. v. Korponey) (Que.), that any waiver.

 

  ...is dependent upon it being clear and unequivoral that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process.

 

 At pp. 302-3:

 

  Whether or not one goes as far as requiring an accused to be tuned in to the legal intricacies of the case before accepting as valid a waiver of the right to counsel, it is clear that the waiver off the s. 10(b) right by an intoxicated accused must pass some form of "awareness of the consequences" test. Unlike the confession itself, there is no room for an argument that the court in assessing such a waiver should be concerned only with the probative value of the evidence so as to restrict the test to the accused's mere comprehension of his or her own words. Rather the purpose of the right, as indicated by each of the members of this court writing in Therens, is to ensure that the accused is treated fairly in the criminal process. While this constitutional guarantee cannot be forced upon an unwilling accused, any voluntary waiver, in order to be valid and effective, must be premised on a true appreciation of the consequences of giving up the right.

 

 And, in conclusion, at pp. 303-4:

 

 The trial judge found as a fact that the appellant's confession could not pass the "awareness of the consequences" test and, if such is the case, then presumably neither could the waiver of the s. 10(b) right to counsel. Accordingly, the test for a valid and effective waiver of the right was not met and the continued questioning of the appellant constituted a violation of s. 10(b) of the Charter. At the very minimum it was incumbent upon the police to delay their questioning and the taking of the appellants'statement until she was in a sufficiently sober state to properly exercise her right to retain and instruct counsel or to be fully aware of the consequences of waiving this right. Accordingly,  regardless  of  the  view one takes of the admissibility of the intoxicated confession per  se,  the conclusion  that the appellant's confession was improperly obtained is inescapable.

 

 Having come to the conclusion that the constitutional rights of the appellant were infringed by the police in their obtaining of her confession, it remains to be decided whether exclusion of the confession from the evidence is the appropriate remedy. Section 24(2) of the Charter provides:

 

 (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

 

  In the case at bar, the court is confronted with a blatant violation by the police of the appellant's right under s. 10(b) of the Charter.

 

  The appellant's drunken assertion that there was "no point" in retaining counsel in face of a murder charge could not possibly have been taken seriously by the police as a true waiver of her constitutional right, especially when viewed in conjunction with the efforts of Mrs. Estey to convince the police to postpone their interrogation until defence counsel could be retained. This was not a situation in which the police were for some urgent  reason  compelled to act immediately in gathering evidence. Rather, the actions of the police in interrogating the intoxicuted appellant seem clearly to have been aimed at extracting a confession which they feared they might not be able to get later when she sobered up and appreciated the need for counsel. In other words, this seems to be a clear case of deliberate exploitation by the police of the opportunity to violate the appellant's rights.  In this context the words of Estey J., writing for the majority of this court in Therens, supra, become highly relevant (pp. 621-22):

 

  Here the police authority has flagrantly violated a Charter right without any statutory authority for so doing.  Such an overt violation as occurred here must, in my view, result in the rejection of the evidence thereby obtained...To do otherwise than reject this evidence on the facts and circumstances in this appeal would be to invite police officers to disregard Charter rights of the citizens and to do so with an assurance of impunity.

 

 As Estey J. went on to point out, such action on the part of the police in blatantly violating the right to counsel must result in the inadmissibility of evidence thereby directly obtained, otherwise s. 10(b) would cease to have any meaningful content whatsoever.

 

 Accordingly, allowing the appellant's confession to be admitted into evidence would necessarily "bring the administration of justice into disrepute".  Whatever the scope of the s. 24(2) test for admissibility of evidence obtained in violation of the Charter, the flagrant exploitation by the police of the fact that to their knowledge the appellant was in no condition to insist on her rights has to be the kind of violation that gives rise to the exclusionary remedy.  The decision of the trial judge to exclude this evidence was therefore correct and the jury verdict, based as it was solely on evidence admissible at trial, must be restored.

 

 In R. v. Manninen, (1987) 1 S.C.R. 1233, the accused was twice read his 10(b) rights from a card. He indicated he would say nothing until he saw his lawyer.  The accused did not ask to make a call and the police did not volunteer use of the telephone. They persisted in questioning Manninen and obtained a damaging statement, which was admitted in evidence at trial.

 

  The Supreme Court of Canada decided unanimously that the evidence should have been excluded under sec. 24(2) of the Charter.  Writing for the Court, Lamer J. held that it was unnecessary in that case to decide whether an arrested or detained  person must assert his right to counsel before correlative dutie: are imposed on the police, since Manninen had in fact asserted his rights.(9) He then said (at pp. 1241-43):

 

 In my view, s. 10(b) imposes at least two duties on the police in addition to the duty to inform the detainee of his rights. First, the police must provide the detainee with a reasonable opportunity to exercose the right to retain and instruct counsel without delay. The detainee is in the control of the police and he cannot exercise his right to counsel unless the police provide him with a reasonable opportunity to do so.

 

 In my view, this aspect of the right to counsel was clearly infringed in this case.  The respondent clearly asserted his right to remain silent and his desire to consult his lawyer. There was a telephone immediately at hand in the office, which the officers used for their own purposes. It was not necessary for the respondent to make an express request to use the telephone. The duty to facilitate contact with counsel included the duty to offer the respondent the use of the telephone.  Of course, there may be circumstances in which it is particularly urgent that the police continue with an investigation before it is possible to facilitate a detainee's communication with counsel. There was no urgency in the circumstances surrounding the offences in this case.

 

  Further, s. 10(b) impose on the police the duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel.  The purpose of the right to counsel is to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights. In this case, the police officers correctly informed the respondent of his right to remain silent and the main function of counsel would be to confirm the existence of that right and then to advise him as to how to exercise it.  For the right to counsel to be effective, the detainee must have access to this advice before be is questioned or otherwise recured to provide evidence.  I discussed the duty imposed on the police in the context of a breathalyzer demand in R. v. Therens, (1985) 1 S.C.R. 613, at p. 624:

 

 I do not want to be taken there as giving an exhaustive definition of the s. 10(b) rights and will limit my comments in that respect to what is stricly required for the disposition of this case.  In my view, s.  10(b) requires at least that the authorities inform the detainee of his rights not prevent him in any way from exercising them and, where a detainee is required to provide evidence which may be incriminating and refusal to comply is punishable as a criminal offence, as is the case under s. 235 of the Code, s. 10(b) also imposes a duty not to call upon the detainee to provide that evidence without first informing him of his s. 10(b) rights and providing him with a reasonable opportunity and time to retain and instruct counsel.

 

 (9) But see Baig, (1987) 2 S.C.R. 537 at p. 540, infra.

 

  This passage was cited by Wilson J. in Clarkson v. The Queen, (1986) 1 S.C.R. 383, at p. 394, in the context of confessions, and I agree that this duty is equally applicable in that context...

 

 And at p. 1245:

 

 Further, the evidence obtained was self-incriminatory As I stated in Collins, supra, the use of self-incriminatory evidence obtained following a denial of the right to counsel will generally go to the very fairness of the trial and thus will generally bring the administration of justice into disrepute.

 

  In R. v. Ross, (1989) 46 C.C.C. (3d) 129 (sub nom. Leclair and Ross v. R.), the accused were charged with break-and-enter and with theft.

 

  Both were advised of their right to counsel and at 2:00 a.m. each tried, in vain, to reach counsel.  Asked if he wished to call another lawyer, Leclair said no. It was unclear whether Ross was asked the same question.  Both were placed in cells until an hour later, when they were asked to participate in a line-up. They were not informed that they had no obligation to do so.  The Supreme Court of Canada held that their right to counsel had been violated and that the line-up evidence should be excluded under sec. 24(2) of the Charter.

 

  Lamer J., delivering the majority opinion, held an arrested or detained person has a right to counsel of his or her choice. As the Court had said in Manninen, a detainee must be given a reasonable opportunity to exercise that right.  Until that opportunity has been afforded, the police cannot elicit evidence from the detainee unless the detainee fails to act with diligence.  The detainee should be expected to seek other counsel only if the chosen lawyer cannot be available within a reasonable time.

 

 At pp. 135-36, Lamer J. added:

 

  Moreover, once the appellant asserted his right to instruct counsel, and absent a clear indication that he had changed his mind, it was unreasonable for the police to proceed as if Leclair had waived his right to counsel. As a majority of this court held in Clarkson v. The Queen (1986), 25 C.C.C. (3d) 207 at p. 218, 26 D.L.R. (4th) 493, (1986) 1 S.C.R. 383 at pp. 394-5 (S.C.C.):

 

 Given the concern for fair treatment of an accused person which underlies such constitutional civil liberties as the right to counsel in s. 10(b) of the Charter, it is evident that any alleged waiver of this right by an accused must be carefully considered and that the accused's awareness of the consequences of what he or she was saying is crucial.  Indeed, this Court stated with respect to the waiver of statutory procedural guarantees in Koarponey v. A.-G. Can. (1982), 65 C.C.C. (2d) 65 at p. 74, 132 D.L.R. (3d) 354 at p. 363, (1982) 1 S.C.R. 41 at p. 49, that any waiver

 

 "...is dependant upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will haveon those rights in the process."

 

  Since the evidence reveals that Leclair asserted his right to counsel, the burden of establishing an unequivocal waiver is on the Crown.

 

 Here, the Crown has failed to discharge the onus.

 

  In the case of the appellant Ross, there is no evidence that the police even asked whether he wanted to call another lawyer. Once Ross had tried and failed to reach his lawyer, it would appear that the police assumed their obligation to provide a reasonable opportunity to retain counsel was at an end. One can reasonably infer that they also misconstrued the nature of their obligation as concerned the appellant Leclair. Obviously, there was no urgency or other reason justifying that the police proceed forthwith and it cannot be said that the appellants had a real opportuniy to retain and instruct counsel.  This therefore leads us to consider the second duty.

 

 At p. 138:

 

 Furthermore, that the accused did not refuse to participate in the line-up cannot by itself amount to a waiver of the right to counsel.

 

 The very purpose of the right to counsel is to ensure that those who are accused or detained be advised of their legal rights and how to exercise them when dealing  with  the authorities.  It would contradict this purpose to conclude that a detained or accused person has waived the right to counsel simply by submitting, before being instructed by counsel, to precisely those attempts to secure the detainee's participation from which the police should retain. Here, the apellant's unable to make an informed decision about participating in the line-up because they were ignorant of their legal position, not having been advised by their lawyers.  Nor did the police even give them the choice as to whether they should participate. In the circumstances, therefore, to conclude that the appellants had waived their rights by participating in the line-up would render the right to counsel nugatory.

 

 And at p. 139:

 

  As the majority of this court held in Collins, among the factors relevant to determining the effect of the admission of the evidence on the fairness of the trial is the nature of the evidence obtained as a result of the violation.  Any evidence obtained, after a violation of the Charter, by conscripting the accused against himself through a confession or other evidence emanating from him would tend to render the trial process unfair. In Collins we used the expression "emanating from him" since we were concerned with a statement. But we did not limit the kind of evidence susceptible of rendering the trial process unfair to this kind of evidence. I am of the opinion that the use of any evidence that could not have been obtained but for the participation of the accused in the construction of the evidence for the purposes of the trail would tend to render the trial process unfair.

 

  In Black v. R., sunra, the accused was arrested on a charge of attempted murder. Informed of her right to counsel, she spoke briefly with her lawyer. Subsequently, the victim died. Black was told she would be charged with murder.  She became highly emotional, was calmed down and given a second warning. Black promptly asked to speak again with her lawyer, whom she was unable  to reach, and declined to consult other counsel. Concerned about one of her children, Black asked whether she would spend the weekend in jail.  The police said she would. Ultimately Black made an incriminating statement and disclosed the location of the knife used in the stabbing. At the time, she was injured and had a high blood alcohol content.  The Supreme Court held, unanimously, that her statement should be excluded but  the  knife  itself  admitted  in  evidence. Essentially, the Court reaffirmed the principles laid down in Therens, Manninen, Clarkson and Ross, citing with approval several of the passages which I have reproduced above.

 

 The Court also applied Collins, to which I now return.

 

  In Collins, supra, the issue was whether to exclude evidence which, on the record before the Supreme Court, had been obtained by an unlawful search and seizure.  Writing for the majority, Lamer J., set out with great care the principles applicable to a determination under sec.

 

 24(2) of the Charter.

 

 He held as follows:

 

  (1) The trial judge's decision to admit or exclude evidence under sec.

 

 24(2) is a question of law (at p. 275);

 

 (2) It is the burden of the accused to satisfy the trial judge that admission of the evidence could, not necessarily would, bring the administration of justice into disrepute (at pp. 280, 287-88);(10)

 

  (3) This burden is discharged if the trial judge is persuaded, on the balance of probabilities, that admission of the evidence could  bring the administration of justice into disrepute (ibid.);

 

 (4) In arriving at a decision, trial judges must in each case kind within themselves a basis for determining whether admission of the evidence could bring the administration of justice into disrepute.

 

 They must view the issue through the eyes of "the reasonable man" who is aware of all the circumstances and appreciates community values, especially long term  community  values, including the importance of protecting the rights and freedoms of the accused (at pp. 281-83);

 

 (5) Factors to be considered are those relevant to the fairness of the trial, those pertaining to the seriousness of the Charter violation and, finally, factors which suggest that exclusion would bring greater disrepute than admission of the evidence, despite the Charter violation (pp. 283-86) ;

 

 (6) If justice could be brought into disrepute by admission of the evidence, the availability of other remedies for the Charter violation is irrelevant (at p. 286);

 

  (7) At this early stage of the Charter's development, "the actual decision to admit or exclude is as important as any test" and any test enunciated will take on meaning only through the Supreme Court's disposition of cases (at p. 286).

 

  (10) In Ross, supra, at p. 138, Justice Lamer reaffirms this principle, using the phrase "would (in the sense of could)".

 

 Collins remains the leading authority on sec. 24(2)(11).  In summarizing the principles formulated bt Lamer J., I undoubtedly fail to do full justice to their depth, subtlety and reach. My purpose is limited to distilling the principles enunciated in a manner appropriate to the present case. In that regard, I find support in Collins for my view that Therens must be applied to exclude breathalyzer evidence obtained in violation of the right to counsel unless:

 

  (a) circumstances are present which permit Therens to be distinguished or

 

 (b) a particular case is governed by a "decision to admit or exclude" handed down by the Sunreme Court since Therens was decided.

 

 (11) For a detailed analysis of what has been said by the Supreme Court of Canada with respect to s. 24(2) of the Charter, see Mitchell, Gerald E., "Exclusion From On High", 70 C.R. (3d) 118. The author is a Justice of the Appeal Division, Supreme Court of Prince Edward Island. As well, see Hogg, supra, fn. 8.

 

  This brings me to Tremblay(12), Baig(13), Mohl(14) and Smith(15).

 

 (12) (1987) 37 C.C.C. (3d) 565 (S.C.C.)

 

 (13) (1987) 2 S.C.R. 537

 

 (14) (1989) 47 C.C.C. (3d) 575 (S.C.C.).

 

 (15) (1989) 2 S.C.R. 368.

 

 In Tremblay, after a breathalyzer demand had been made, the accused was informed of his rights. He requested a lawyer, was given the telephone, called his wife and (apparently) asked her to call a lawyer for him.  Right after the call, he complied with a police request to "blow".  No urgency was established. Tremblay was "vulgar, violent and obnoxious" (at p. 567) from the time he was intercepted until the demand for a breath sample.  The Supreme Court found that Tremblay's sec. 10(b) rights had been violated because the police, following his request for counsel, did not provide him, as they must, with a reasonable opportunity to contact a lawyer through his wife before demanding a breath sample. However, their haste in the matter was provoked by the accused's own behaviour.  He had "actively obstructed" the police investigation (at p. 568). Under the "particular circumstances" of that case, the Supreme Court agreed with the trial judge that the evidence should not be excluded, despite the violation of Tremblay's right to counsel.

 

 In R. v. Baig, (1987) 2 S.C.R. 537, the accused was advised of his right to counsel and replied affirmatively when asked whether he understood his rights. The Supreme Court of Canada agreed with Tarnopolsky, J.A., in Anderson, (1984) 10 C.C.C. (3d) 417 (Ont. C.A.), at p. 431:

 

 "that, absent proof of circumstances indicating the accused did not understand his right to counsel when he was informed of it, the onus has to be on him to prove that he asked for the right but it was denied or he was denied any opportunity to even ask for it."

 

 The Court then held (at p. 540):

 

  In the present case, the accused did not put forward, nor does the record reveal, any evidence suggesting that he was denied an opportunity to ask for counsel. Absent such circumstances, as that referred to by Tarnopolsky J.A. once the police have complied with s. 10(b), by advising the accused without delay of his right to counsel without delay, there are no correlative duties triggered and cast upon them until the accused, if he so chooses, has indicated his desire to exercise his right to counsel.

 

 Since there was no proven breach of sec. 10(b), it was unnecessary to decide whether there was any waiver or to address sec. 24(2).

 

  I turn now to R. v. Mohl, (1989) 47 C.C.C. (3d) 575. In Mohl, the accused was advised of his right to counsel, but at the time he was too drunk to understand. On the assumption that his s. 10(b) rights were violated, the Supreme Court of Canada agreed with Sirois J., the summary conviction appeal court Judge, who had held(16) that admission of the breathalyzer evidence in this case  would not bring the administration of justice into disrepute. The short reasons given orally do not indicate a departure from the principles laid down earlier (prior to May 25, 1989) and subsequently in Black. In fact, the Court did not find it necessary to explain why the evidence should be admitted notwithstanding the assumed violation. The Court had previously made plain, however, that its "actual decision to admit or exclude is as important as any test" (per Lamer J., in Collins, supra).  On this basis, the lesson of Mohl is that, on a breathalyzer charge, the test result will not be excluded under s. 24(2) where the accused, through given his rights, was unable to understand by reason only of this impairment by alcohol.

 

 (16) See Fiat dated January 9, 1988.  This judgment is unreported and reads in full as follows:

 

  The logic of my Brother Maher, J.'s decision in Gordon Schmidt v. The Queen (Q.B. 311 J.C. Saskatoon Dec. 10 '84) (since reported at 32 M.V.R. 282) appeals to me. In summary, it is this. Where an accused has by his own actions placed himself in a position of being unable to understand his rights under the Charter, it is not appropriate or just to provide a remedy to the accused.  To avoid a conviction by an order for the exclusion of evidence in such circumstances would bring the administration of justice into disrepute.

 

 The case at bar is even stronger than the Schmidt decision, supra, in that the learned trial Judge found that the accused heard and understood the demand. Under the circumstances herein, while the accused rights may have been infringed under s. 10. of the Charter, it is neither appropriate nor just that he be afforded a remedy at law.

 

 The law does not afforded a remedy at all times.

 

  Accordingly, the acquittal is set aside, a conviction is entered and the matter referred back to the trial Judge for sentencing.

 

  At most, Mohl decides that, wherever the gravamen of the offence charged is impairnent by alcohol or drugs, and violation of the accused's right to counsel is attributable entirely to the prohibited impairment, evidence will not be excluded by reason of that violation.

 

 In Smith, decided by the Supreme Court of Canada on September 14, 1989, the police gave the accused a telephone directory and urged him to try to reach a lawyer when he arrived at the station.  It was then 9 p.m. Smith refused, advising the police he would wait until morning.

 

 After spending an hour in his cell, Smith was taken to an interviev room. He said he would not answer any questions until he had spoken with counsel.  The police persisted in their questioning and obtained a statement, which the accused said he was making "off the record". By a four to three majority, the Supreme Court ruled the statement admissible.

 

 Lamer J. (Gonthier J., concurring) specifically reaffirmed the principles enunciated in Ross and Manninen. Citing Tremblay, however, he held that Smith had not acted diligently, refusing even to try to reach his lawyer, and the police were therefore justified in acting as they did.

 

 Justice Lamer explained (at p. 386):

 

 The situation would be very different if, as in the case of R. v.  Ross, supra, the appellant had tried to contact his lawyer but had failed in his attempt.  The appellant, in these circumstances would have been justified to ask for a delay until the opening of offices in the morning. However, his decision to not even try to contact his lawyer is fatal, in my view, and prevents him from establishing that he was reasonably diligent in the exercise of his rights. The burden of proving that it was impossible for him to communicate with his lawyer when the police offered him the opportunity to do so was on the appellant.

 

 In a separate opinion, L'Heureux-Dubé J. held as follows (at pp. 387-88):

 

  Section 10(b) of the Canadian Charter of Rights and Freedoms, invoked here by the appellant, guarantees that, upon an arrest or detention, everyone has the right to retain and instruct counsel without delay and to be informed of that right.

 

 Our Court has held that the arrested or detained person must be given a reasonable opportunity to communicate with counsel of his or her choice (R. v. Ross, (1989) 1 S.C.R. 3).  It is incumbent upon that person to show that he or she was denied that reasonable opportunity (R. v. Baig, (1987) 2 S.C.R. 537). We have also clearly stated that s. 10(b) imposes a ban on police questioning until arrested or detained persons have had such an opportunity (R. v. Manninen, (1987) 1 S.C.R. 1233), except in those cases where there has been an unequivocal waiver (Clarkson v. The Queen, (1986) 1 S.C.R. 383).

 

  In my view, s. 10(b) of the Charter was not infringed in the present case. The circumstances of time and place as well as the responsible behaviour of the police officers, as set out in Lamer J.'s judgment, clearly gave the appellant more than a reasonable opportunity to communicate with counsel of his choice, or at the very least, to obtain legal advice before answering the questions.  The appellant elected not to avail himself of this opportunity.

 

 La Forest J. (Dickson C.J. and Wilson J. concurring) was of the view that Smith had been deprived of a reasonable opportunity to consult counsel of his choice and therefore, applying Ross, the statement should have been excluded.

 

 It thus fell to Sopinka J., the seventh member of the Bench, to cast the deciding vote. He agreed with the conclusions reached -- but not the reasons given -- by Lamer, Gonthier and L'Heureux-Dubé JJ. Justice Sopinka described as "cogent" the reasons of La Forest J., concurred in by the Chief Justice and Wilson J., but declined to adopt their conclusion. He wrote (at pp. 391-2):

 

 The right to counsel provided by s. 10(b) is a most important right for a person accused of crime.  Its importance is underscored by the inroads that it makes on what was standard police practice before the Canadian Charter of Rights and Freedoms, namely proceeding without delay after arrest to interrogate the person charged.  The importance of this right with its correlative restraint on police action demands from the accused that he or she recognize the importance of the right and act accordingly.

 

 In this case the appellant was most casual in asserting his right.  He frittered away about two hours worrying about comparatively trivial matters at a time when counsel was more likely to be available.

 

  Despite police urging, he would not place a phone call to determine if counsel could be contacted at about 9 p.m.  In these circumstances the cours below concluded that the appellant had been afforded a reasonable opportunity to retain and instruct counsel.

 

 In my opinion, this determination is largely a question of fact. The law is clear that the person under detention is to be advised promptly of the right to counsel and must be given a reasonable opportunity to retain and instruct counsel.  During this period, police questioning is to be suspended. What is a reasonable opportunity is determined by reference to all the circumstances of the case, including the action of the accused. Whether an opportunity is reasonable must be judged in part in light of the diligence with which the accused seeks to avail himself or herself of the right.

 

 The courts below took these matters into account, applied the law correctly and as a matter of fact concluded that the opportunity afforded to the appellant was reasonable. I see no reason to interfere in that determination and would dismiss the appeal.

 

 Smith must thus be regarded -- in the words of Sopinka J. -- as a "case close to the line". It does not purport to draw that line indelibly. Considered in its entirety, Smith does not, any more than Mohl, abandon any principle previously enunciated by the Supreme Court of Canada.  Nor does it establish a fresh principle to be followed by lower courts in future cases.

 

 SUMMARY

 

  The principles previously enunciated by the Court, and still the law of the land, may now be summarized as follows:

 

 1. Every person who is arrested or detained (whom I shall call a "detainee") must be informed without delay of his right to retain and instruct counsel without delay.

 

  2.  The detainee must be informed of this right in a manner which is comprehensible to him.  The exact language of the Charter need not be used, so long as the detainee is clearly informed of every aspect of his right to counsel, including the right to retain and instruct counsel without delay.

 

  3.  In circumstances suggesting that the detainee does not understand the information communicated to him concerning his right to retain and instruct counsel without delay, a mere recitation of the right to counsel is insufficient. The police must take additionai steps to ensure that the detainee is made aware of his 10(b) rights.

 

 4. The police must refrain from seeking to elicit evidence from  the detainee until he has been given a reasonable opportunity to retain and instruct counsel of his choice, in private. Whether or not a reasonable opportunity has been provided depends on the circumstances of each case.

 

 5: Once the police have informed the detainee, in a timely and comprehensible manner, of his right to retain and instruct counsel without delay, the detainee must exercise that right with reasonable diligence. If he fails to do so, the police are relieved of their duty to refrain from attempting to elicit evidence from him.  By failing to act diligently, the detainee does not forfeit his right to counsel; he does, however, relieve the police of their duty to refrain from seeking to elicit evidence from him until he has exercised his s. 10(b) rights.

 

  6. A detained person may waive his right to counsel, provided he appreciates the consequences of giving up the right.  Any such waiver must be clear and unequivocal.

 

  7.  Where the detainee is properly informed of his s. 10(b) rights and there is nothing in the evidence to suggest that he did not understand those rights, compliance is presumed unless and until the detainee proves by a preponderance of evidence that he was denied a reasonable opportunity to ask for or to consult with counsel.

 

 8. In the absence of evidence that the detainee failed to understand his right to counsel or was denied an opportunity to ask for counsel, no correlative duties are cast upon the police until the the detainee, if he so chooses, has indicated his desire to exercise his right to counsel.

 

 9.  Because of the fundamental importance of the right to counsel in the administration of criminal justice,(17) violation of s. 10(b) will generally result in exclusion under s. 24(2) of evidence closely connected with the Violation.(18) Exclusion, however, is not automatic.

 

 10.  In each case, the court must determine whether it is satisfied that admission of the evidence could -- and not necessarily would bring the administration of justice into disrepute. The test is not what the "public in generaI" or even a majority of the population might think.  Rather, the judge himself or herself, examining all the circumstances carefully and impartially must decide whether a reasonable person who understands the significance of the violation and the basic precepts of our system of justice, would consider admission or exclusion the greater evil.

 

  (17) "The right to counsel is surely the main safeguard to the citizen that his or her other rights will be respected": Wilson J., in Jacoy, (1988) 2 S.C.R. 548, at p. 563, and again in Debot, supra, at p. 31.

 

  (18) Recently, writing for a unanimous Supreme Court of Canada in Black, (1989) 50 C.C.C. (3d) 1 at pp. 16-17, Wilson J. confirmed that Collins remains "(t) he leading authority on s. 24(2)" and cited this statement of Lamer J. in Collins, (1987) 33 C.C.C. (3d) 1 at pp. 19-20: "The use of self-incriminating evidence obtained following a denial of the right to counsel will generally go to the fairness of the trial and should generally be excluded."

 

 11. Though it is important to consider the circumstances of each case, it is not the outcome of the case itself that is of prime importance, but the effect of admission or exclusion on our system of justice over time.

 

 12. Through its decisions in specific cases, the Supreme Court has established that the administration of justice is not brought into disrepute by the admission of evidence where the detainee, advised of his rights, (a) provoked police haste by actively obstructing their investigation;- or(b) failed to exercise his rights with reasonable diligence; or (c) on a breathalyzer charge, was unable to understand by reason only of impairment by alcohol. This last decision might govern as well any case where the detainee, told what his rights are, cannot understand  or exercise them by reason only of the very impairment that is the gravamen of the offence charged.(19)

 

 (19) More recently, the Supreme Court of Canada held in Debot, supra, that the admission of real evidence obtained by a warrantless "frisk search" should not be excluded because of a contemporaneous violation of the right to counsel where (a) the search was authorized by s. 37 of the Food and Drugs Act; (b) the search was not carried out in an abusive manner; and (c) the existence and seizure of the evidence were "totally unrelated to the Charter violation" (per Lamer J. at p. 5; per Wilson J. at p. 35) and "not engendered by conscripting the appellant against himself" (per Wilson J., ibid., and substantially to the same effect, Lamer J. at p. 2).

 

 CONCLUSION

 

  In the present case, unlike that of Baig or Smith, there was a clear violation of s. 10(b) of the Charter. That violation was not a result of self-induced impairment by alcohol, as in Mohl. In addition, unlike Baig, Dubois was not advised of his right to counsel without delay and there were circumstances indicating (a) he did not understand his right to counsel and (b) he was deprived by haste from exercising that right.

 

 Unlike Tremblay, the police haste in this case cannot be explained  by  Appellant's  conduct.   He was thoroughly cooperative.

 

 The trial judge erred in finding that there was no violation of 10(b), since he did not even address the "without delay" aspect.

 

 In addition, he considered the accused's state of mind before arrest and discovery of the victim, entirely ignoring evidence that Appellant, when advised of his right to counsel -- after discovery of the victim -- was slightly the worse for drink (éméché) , extremely nervous and repetitive, lost, unresponsive when informed of his right to counsel, in a state of shock, and "amorphous" ("amorphe").

 

 In the Court below, Appellant had an unsatisfactory hearing on grounds of fact and of mixed fact and law open to him in that Court. Appellant was thus deprived of his right of appeal on those grounds, since his further appeal to our court is limited to questions of law.

 

 The appeal court judge illegally drew an inference of knowledge from evidence that was not before him and erred in refusing to exclude the breathalyzer result on the ground that counsel would have "changed nothing".

 

 Failure to inform Appellant of his right to counsel without delay cannot in the circumstances of this case amount to a technical violation, bearing in mind his condition and that the impugned breathalyzer evidence was obtained from him in such haste.(20) It was imperative that he be made aware of his right to consult a lawyer before the test was administered. There was ample time for a consultation, at least by telephone.  Both of the required tests could still have been conducted within the permitted delays.

 

 (20) See R. v. Moyles, 70 Nfld. & P.E.I.R. 154 (Nfld. C.A.). in  that case, especially at pp. 156-57, Goodridge C.J.N underlines in strong and eloquent language the importance of informing a detainee of his right to counsel without delay. The Chief Justice (Mahoney J.A. concurring) held, however, that the violation in that case "was of a technical nature". On this appeal, the facts are distinguishable.

 

 With respect, however, bearing in mind the importance attached in Moyles to the "without delay" ingredient of the right to be informed of the right to be informed of the right to counsel, I would have difficulty in characterizing as "technical" any failure to convey to the accused his right to consult a lawyer before he is conscripted to provide self-incriminating evidence.

 

  It vould be wrong in this case to permit the convictions to stand in view of the errors made at trial and before the appeal court.

 

  This is not a case where our Court can properly invoke s. 686(1) (b) (i) of the Criminal Code (applicable mutatis mutandis in virtue of s. 839(2) ) to substitute for the convictions that are bad a finding of guilt on the charge of impaired driving that was stayed at trial.  To begin with, counsel were not invited to address that issue on the hearing before this Court. It should not be decided, in my view, without the benefit of argument. In addition, because he ordered a stay, the trial judge did not resolve the questions of fact necessary to support a conviction. It is not our role to bridge that gap.

 

 The only remaining question is whether to substitute acquittals for both convictions or to return the record to the trial court to be dealt with according to law.

 

 Because of the breathalyzer conviction, the charge of impaired driving was stayed by the trial judge. On that charge, there was evidence to be considered independently of the breathalyzer result.  The Crown is not entitled to try that charge afresh, but it is entitled to a judgment on the merits.  Moreover, if the trial judge convicts appellant of impaired driving, it should remain possible to try him as well for wilful breach of a probation order.

 

 Accordingly, in File No. 450-01-001189-864, I would quash appellant's conviction on the breathalyzer count and return the record to the court of first instance, so that the remaining count for impaired driving can be disposed of according to law; in File No.  450-01-001188-864, I would quash appellant's conviction for wilful breach of a probation order and direct a new trial on that charge.

 

 J.A.

 

 OPINION DU JUGE ROGER CHOUINARD

 

  La Charte canadienne des droits et liberté (art. 10(b)) consacre le droit de tout citoyen en cas d'arrestation ou de détention d'avoir recours sans délai à l'assistance d'un avocat et d'être informé de ce droit.  Au cas de violation ou de négation d'un tel droit, c'est l'article 24 qui autorise un tribunal compétent à déterminer la réparation convenable et juste eu égard aux circonstances. Lorsqu'un clément de preuve a été obtenu dans des conditions qui portent atteinte au droit relaté précédemment, un tel élément peut être écarté, eu égard aux circonstances, s'il est établi que son utilisation est susceptible de déconsidérer l'administration de la justice. L'opinion  de  mon  collègue Morris J. Fish formule fort adéquatement les principes d'application des droits relatés précédemment, à la suite d'une étude minutieuse d'un grand nombre d'arrêts de la Cour Suprême du Canada depuis celui de R. c.  Therens(1).  Ceux-ci comprennent notamment les arrêts récents de Mohl(2) et Smith(3).

 

 (1) R. c. Therens, (1985) 1 R.C.S. 613

 

 (2) Mohl, (1989) 47 C.C.C. (3d) 575 (S.C.C.)

 

 (3) Smith, Cour Suprême du Canada, 14 septembre 1989, non rapportée.

 

  Je ne puis que concourir à l'application qu'il fait de ces principes à la présente espèce. Je partage également la façon qu'il propose de disposer du présent pourvoi. J.C.A.

 

 

INSTANCE-ANTÉRIEURE

 

 

(C.S. Sherbrooke 450-36-000144-866 et 450-36-000145-863)