IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION. Clarke, C.J.N.S., Jones and Matthews, JJ.A. RAYMOND MARC LePAGE, -and-

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1 S.C.C. No IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: Clarke, C.J.N.S., Jones and Matthews, JJ.A. RAYMOND MARC LePAGE, -and- Appellant HER MAJESTY THE QUEEN, Respondent E.A.N. Blackburn for the Appellant Kenneth W. F. Fiske for the Respondent Appeal heard: October 2, 1986 Judgment delivered: November 12, 1986 THE COURT: Leave to appeal granted, appeal allowed, conviction and sentence set aside and acquittal entered per reasons for judgment by Jones, J.A.; Clarke, C.J.N.S. and Matthews, J.A. concurring. CANADA PROVINCE OF NOVA SCOTIA 1986, CBW 6175 BETWEEN: IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION on appeal from the COUNTY COURT JUDGE'S CRIMINAL APPEAL COURT OF DISTRICT NUMBER TWO RAYMOND MARC LEPAGE

2 - and - HER MAJESTY THE QUEEN Heard Before: The Honourable Judge L.L. Clements Place Heard: Bridgewater, Nova Scotia Date Heard: June 17th, 1986 Counsel: E.A.N. Blackburn, Esq. for the Appellant A.W. Brown, Esq. for the Prosecution JONES, J.A.: This is an application by Raymond Marc LePage for leave to appeal from his conviction for operating a motor vehicle with more than 80 milligrams of alcohol in his blood contrary to s.237(b) of the Criminal Code. On February 9, 1986, Constable Lane Parent stopped a van operated by Mr. LePage at Hubbards as it was not displaying the current registration stickers. While checking the registration and Mr. LePage's license the Officer noticed an odour of alcohol emanating from the Appellant. At 4:43 p.m. the Officer read to Mr. LePage the demand for an A.L.E.R.T. test. Mr. LePage took the test and failed. The Officer then made a demand for a breathalyzer test and advised Mr. LePage of his right to retain and instruct counsel without delay. The Appellant told the Officer he wished to consult a lawyer. The Officer instructed Mr. LePage that he could choose the location from which he could telephone a lawyer. As Mr. LePage's house was a short distance away he told the Officer that he wished to call from his house. Constable Parent agreed, at the same time advising the Appellant that for purposes of continuity he would have to keep the Appellant under observation at all times. The Officer drove the Appellant to the LePage home, arriving there at 4:51 p.m. The Appellant made three telephone calls before contacting a lawyer. After speaking to the lawyer Mr. LePage agreed to take the test. While Mr. LePage was using the telephone the Officer stood by the door some five or six feet away. The Officer testified on the trial as follows: "Well I didn't hear what actually word for word what he was saying. I know he was having a conversation with another

3 person at the end on the telephone at the other end and he was discussing the matter at hand. That's all I can tell you." Mr. LePage testified on the trial. He stated: "A. Before we came to the house, he said you can make the call from your house but you cannot leave my view. So if there was any thought of my asking for any kind of privacy, I just didn't feel I had any rights. I thought I was to, you know, make the call and he had mentioned two or three times, you know, hurry up, you know. It can't take you that long and I said look, I'm just trying to figure out where this guy lives and I, you know, I had called an office number. Then I called your home number and I was able to get you. Q. Now is his evidence correct ah that he was approximately 5 feet from you when you were... A. Yes." He also stated: "Q. All right. Did you ask him to - to move out of the room or anything while you were making those calls? A. Ah in view of the fact that he said that I had - he had to be in my view at all times, I didn't think I had that right." The Officer took Mr. LePage to Chester where two samples of breath were taken. The first reading was 160 milligrams, and the second 150 milligrams of alcohol in 100 millilitres of blood. The Appellant was tried before His Honour Judge Kennedy in the Provincial Court at Bridgewater. The Appellant contended that the certificate of analysis should have been excluded as the Appellant had not been allowed to consult counsel in private in violation of s.10(b) of the Canadian Charter of Rights and Freedoms. Judge Kennedy convicted the Appellant. With respect to the Charter argument he stated: "To the extent that the officer, in this instance by stating that he would have to remain in the presence of the accused, may have convinced the accused that he was not entitled to privacy and cause him not to request it. The officer may have inadvertently violated the accused right to counsel or at least

4 the privacy aspect of that right. I do find though that it was unintentional that the officer was being influenced by the unusual situation that the call was being made from the home of the accused and that was being done at the request of the accused. More importantly the need for privacy seems to be expressed here ex post facto. The accused did not request privacy at the time, although his explanation for that seems valid enough, and I've taken his explanation into consideration. He did speak though to a lawyer and as a result of his conversation with counsel, after having spoken to counsel at any rate and I can certainly presume that it was as a result of his conversation with counsel, he agreed to take the test. So the lack of privacy, although it well might have been meaningful, it well might have made reasonable communication with his counsel and possible, does not seem to have caused any difficulty in this specific. It's not every violation of one's rights that will result in a remedial exclusion of evidence. If there was a violation here, I find that it was unintentional and more importantly, I find that it was unconsequential. I do not find that it should, in this specific, and I am stressing that I am dealing with a specific situation, I do not find that it should in this specific case cause the exclusion of otherwise lawful and relevant evidence." Mr. LePage appealed the conviction to the County Court. Clements, J.C.C. dismissed the appeal. Judge Clements, in his decision, stated: "The view I take of this matter is simply this, that the accused fully understood when he asked to use the phone in his own home and the police officer said yes you may but I must be present when you're making the call. I think, in my view, this was a waiver on the part of the accused of his right to privacy. It seems to me it's clearly an implied waiver. He went ahead and used the telephone, knowing that the police officer was going to be present and now. he comes along at this stage and raises the argument of no privacy. There's no question that his right to privacy was breached, but I would go to the second stage in this matter and say that under s.24(2) it certainly doesn't create a situation, in my view, that calls for the exclusion of the evidence. Certainly I don't think it is the sort of behaviour on the part of the police that would shock or upset the community. There's certainly no question under s.24(2) that this brings the administration of justice into disrepute. I just don't accept the argument. It doesn't seem to me that the

5 administration of justice would be brought into disrepute by the behaviour of the police in this particular case." The Appellant has applied for leave to appeal his conviction. The notice contains the following grounds: "1. THAT the learned County Court Judge erred in law in holding that there was sufficient evidence upon which a finding could be made that the accused did unlawfully have the care and control of a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, contrary to Section 237(b) of the Criminal Code of Canada. 2. THAT the learned County Court Judge erred in law in holding that the Appellant's right to retain and instruct counsel pursuant to Section 10(b) of the Canadian Charter of Rights and Freedoms was not infringed or denied." The first ground, which raises a question as to the sufficiency of the evidence, is one of fact and therefore cannot be sustained under s.771 of the Code. The second ground raises the main issue on this appeal. Section 10(b) of the Canadian Charter of Rights and Freedoms provides: "10. Everyone has the right on arrest or detention... (b) to retain and instruct counsel without delay and to be informed of that right;... In R. v. Big M. Drug Mart Ltd., [1985] 1 S.C.R. 295, Chief Justice Dickson, in delivering the judgment of the majority of the Supreme Court of Canada, stated at p.344: "This Court has already, in some measure, set out the basic approach to be taken in interpreting the Charter. In Hunter v. Southam Inc., [1984] 2 S.C.R. 145, this Court expressed the view that the proper approach to the definition of the rights and freedoms guaranteed by the Charter was a purposive one. The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect.

6 In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be, as the judgment in Southam emphasizes, a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter's protection. At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore, as this Court's decision in Law Society of Upper Canada v. Shapinker, [1984] 1 S.C.R. 357, illustrates, be placed in its proper linguistic, philosophic and historical contexts." at p.337: In R. v. Oakes, 24 C.C.C. (3d) 321, the Chief Justice also stated "Although there are important lessons to be learned from the Canadian Bill of Rights jurisprudence, it does not constitute binding authority in relation to the constitutional interpretation of the Charter. As this Court held in R. v. Big M Drug Mart Ltd., supra, the Charter, as a constitutional document, is fundamentally different from the statutory Canadian Bill of Rights, which was interpreted as simply recognizing and declaring existing rights." In Jumaga v. The Queen, [1977] 1 S.C.R. 486, in a split decision, the Supreme Court of Canada held that the accused had not been deprived of his right to retain and instruct counsel under the Canadian Bill of Rights where he was not permitted to speak to counsel on the telephone in private. Section 2(c)(ii) of the Bill of Rights provided that, "2....no law of Canada shall be construed or applied so as to... (c) deprive a person who has been arrested or detained... (ii) of the right to retain and instruct counsel without delay;...

7 While that section was framed as an interpretative provision, it is now clear that a person arrested or detained has an absolute right to retain and instruct counsel without delay subject to the provisions of s.1 of the Charter. The purpose is to protect the rights of an accused. In order to fulfill that purpose under the Charter,with respect, the reasoning of the minority in Jumaga should be applied to s.10(b). Chief Justice Laskin, in delivering the judgment of the minority, reviewed the authorities including the judgment of this Court in R. v. Doherty (1974), 25 C.R.N.S. 289, and concluded: "Certainly, as was said in Balkan, in Bond and in Doherty, all circumstances must be considered in determining how far privacy can go; but the fact that it may have to be limited in some cases does not call for an unqualified denial of any privacy in all cases. I do not think that it can reasonably be made a condition that an accused be shown to have asked for it before consideration is given to providing it. Once an accused has requested that he be permitted to consult counsel, that should carry with it, to the knowledge of the police, a right to have the consultation in private, so far as circumstances permit. The right to counsel is diluted if it can only be secured by adding request to request. I would not put the police in an adversary position on this question; they are better placed than the ordinary person (who has been detained or arrested and is in police custody) to recognize what the right to counsel imports, and they should be alert to protect that right as an important element in the administration of justice through law, for which they are as much accountable as any others involved in the judicial process." Even to obtain the minimal advice by means of a telephone a person detained or arrested must be free to discuss the circumstances of his detention with counsel. If he cannot do so for fear of making admissions in the presence of the police then, obviously, his right to instruct counsel has been limited. In such circumstances the right under the Charter has been violated. In my view, the right to privacy is inherent in the right to retain and instruct counsel under s.10(b) of the Charter. I do not think it can be said in this case that the Appellant waived his right as the Officer had unilaterally imposed conditions on the exercise of the right before allowing the Appellant to use the telephone. It was clear to the Appellant that he could only exercise his right in the presence of the Officer. In R. v. Dombrowski (1985), 44 C.R. (3d) 1, Tallis, J.A. in delivering the judgment of the Saskatchewan Court of Appeal stated at p.9: "The basic right to counsel under s.10(b) of the Charter is now part of the supreme law of Canada and must be respected by the courts if it is to have any meaning for the average citizen. This right must also be respected and taken seriously by law enforcement officers. In this case, the arresting officers had no right to limit the appellant's opportunity to contact counsel until they returned to the detachment

8 office. With the availability of a telephone at the business premises of Co-op Implements, there was no justification for limiting or delaying the opportunity. We appreciate that regard must be had to the circumstances of each case but in this case we hold that the incriminating evidence should be excluded under s.24(2) of the Charter. To hold otherwise would whittle away the rights accorded to every citizen under s.10(b). The admission of the oral statements would in the circumstances of this case bring the administration of justice into disrepute. We have no doubt that law enforcement officers will recognize the necessity and desirability of complying with the Charter requirements. The exclusionary rule in s.24(2) clearly serves as a disincentive to limit or abuse a person's rights under s.10(b) of the Charter: see, for example, R. v. Lajoie, [1984] N.W.T.R. 30, 8 C.C.C. (3d) 353, 4 D.L.R. (4th) 491, 50 A.R. 140 (S.C.). Furthermore, even if it could not be said that the test for mandatory exclusion set out in s.24(2) of the Charter had not been met, we are of the opinion that the court should have exercised its discretion under s.24(1) to exclude the evidence on the footing that this would be an appropriate and just remedy in the circumstances of the case." (See also Porter v. R., 46 C.R. (3d) 232.) In Regina v. Therens, 18 C.C.C. (3d) 481, the Supreme Court of Canada had to decide whether evidence of a breath sample would be admissible where the accused had not been advised of his right to counsel. Estey, J., with three members of the Court concurring, stated at p.488: "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 citizen and to do so with an assurance of impunity. If s.10(b) of the Charter of Rights 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

9 'bring the administration of justice into disrepute'. I am strongly of the view that it would be most improvident for this Court to expatiate, in these early days of life with the Charter of Rights, upon the meaning of the expression 'administration of justice' and particularly its outer limits. There will no doubt be, over the years to come, a gradual build-up in delineation and definition of the words used in the Charter in s.24(2)." Lamer, J. stated at p.490: "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." Dickson, C.J. agreed with that reasoning. In Trask v. The Queen, 18 C.C.C. (3d) 514, and Rahn v. The Queen, 18 C.C.C. (3d) 516, the Supreme Court of Canada, in following Therens, excluded the evidence of the breathalyzer tests in both cases. In Regina v. Phillips, 26 C.C.C. (3d) 60, Prowse, J.A., in delivering the judgment of the Alberta Court of Appeal, stated at p.63: "The word flagrant is used by Estey J. in the test he applied in the Therens case. The factors that gave rise to the use of that adjective are not particularized. At first reading the Therens case would appear to support the conclusion that virtually all evidence obtained after an accused's rights have been infringed should be excluded. I think that such an interpretation should not be accepted for to do so would sterilize the intent set out in s.24(2). Clearly, that section contemplated the admission of such evidence in certain circumstances. The intent of s.24(2) is to assure that the historical function of a court, to search for the truth, is not subordinated to the interest of an accused unless its admission would bring the administration of justice into disrepute. The public interest requires that the court continue to

10 carry on its historical function. When the Therens case is considered with that in mind, I am of the view that the principle established by it is that where the sole evidence of a material fact (in Therens the breathalyzer reading, here the refusal) arises after and as a result of the violation of the accused's s.10(b) right, then the admission of such evidence will bring the administration of justice into disrepute. I believe such a conclusion would be supported by reasonable minded persons. I leave aside the effect of the nature of the offence, that is, whether the principle applies without consideration being given:to the nature of the offence." I see no reason why the principles in Therens should not apply in this case. I think on the evidence it is purely speculative to suggest that the Appellant was not affected by the denial of his rights in this case. I would accordingly grant leave to appeal, allow the appeal and exclude the evidence of the breathalyzer test under s.24(2) of the Canadian Charter of Rights and Freedoms. In the result the conviction should be quashed and an acquittal entered. J.A. Concurred in: Clarke. C.J.N.S. Matthews, J.A. PROVINCE OF NOVA SCOTIA COUNTY OF LUNENBURG PC IN THE COUNTY COURT JUDGES CRIMINAL COURT FOR DISTRICT NO. 2 ON APPEAL PROM THE PROVINCIAL COURT BETWEEN: HER MAJESTY THE QUEEN on the Information of Lane Parent of Chester in the County of Lunenburg versus

11 RAYMOND MARC LEPAGE TRIAL BEFORE: His Honour Judge Joseph P. Kennedy, J.P.C. PLACE HEARD: Bridgewater, N.S. DATES HEARD: April 14, 1986 & April 23, 1986 CHARGE: "at or near Simms Settlement in the County of Lunenburg, Nova Scotia, on or about the 9th day of February, 1986, did unlawfully have the care or control of a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, contrary to Section 237(b) of the Criminal Code of Canada." COUNSEL: Mr. Anthony Brown, for the Prosecution Mr. Nelson Blackburn, for the Defence CASE ON APPEAL S.C.C. No IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: RAYMOND MARC LePAGE -and- HER MAJESTY THE QUEEN REASONS FOR JUDGMENT BY: JONES, J.A.