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In the Provincial Court of Alberta

Citation: R. v. McCargar, 2007 ABPC 302 Date: 20071101 Docket: 050622828P10101 Registry: Edmonton

Between: Her Majesty the Queen

- and -

Donald Walter McCargar Accused

Reasons for Judgment of the Honourable Judge D.J. Tilley

[1] The accused is charged with an offence contrary to s. 254(5) of the Criminal Code of Canada. Issue [2] The accused faces a charge under s. 254(5) of the Criminal Code, having refused to comply with a roadside demand made pursuant to s. 254(2) of the Criminal Code. The specific facts of this matter are not an issue, as the accused concedes that the Crown is able, on the facts alleged, to prove the essential elements of the offence as charged. ; Written Argument of the Applicant, filed May 17, 2006, (applicants written argument), at para. 4. The accused (applicant) is, however, advancing a constitutional challenge pursuant to ch. J-2, s. 24 of the Judicature Act, and seeks remedies pursuant to s. 52(1) of the Constitution Act 1982, and section 24(1) of the Canadian Charter of Rights and Freedoms (the Charter). Specifically, the applicant challenges the constitutional validity of ss. 254(2), 254(5), and 255(1) of the Criminal Code, submitting that a combined reading of these sections results in violations of the applicants section 7, 8, 9, 10, and 12 Charter rights, which cannot be saved by section 1 of the Charter. [3] The relief sought by the applicant is framed in the alternative, as set out at paragraphs 55 and 56 of the applicants written submissions: 55) The Applicants [sic] respectfully request a direction that s. 254(2) in conjunction with ss 254(5) and 255 (1) is unconstitutional and no force

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and effect. 56) In the alternative, the Applicants respectfully request that this Honourable Court find that given the infringement of ss. 8 and 10(b) of the Charter that evidence relating to words or actions of refusal be excluded from trial. I note that the latter relief, if warranted, would be granted pursuant to s. 24(2) of the Charter, as opposed to s. 24(1); I do not believe that s. 24(2) of the Charter is specifically mentioned in the applicants written submissions. Regardless, it is not necessary to canvass the law in the area unless I actually find the provisions unconstitutional in the first instance. Charter argument based on sections 8, 9, and 10(b) [4] The applicant essentially submits that the targeted sections result in breaches to the accuseds ss. 8, 9, and 10(b) Charter rights, and that . . . a law which encompasses three breaches to the most fundamental protections afforded by the Charter in relation to the criminal law cannot be considered reasonable and must therefore be subjected to s. 1 Charter scrutiny in order to unhold [sic] its validity.; applicants written submissions at para. 20. On the section 1 analysis, the applicant concedes that the first step of the Oakes test is made out, as [i]mpaired driving is a pressing and substantial concern in Canadian society and detection and deterrence of such drivers is of significant import.; applicants written submissions at para. 25. The applicant alleges, however, that s. 254(2) does not meet the proportionality requirements of the second branch of the Oakes test; the reason being that s. 254(2) must be read in light of section 254(5). [5] According to Mr. Haryett, for the accused, s. 254(2) fails the second branch of the Oakes test; the reason being that s. 254(5), which makes it a criminal offence to fail or refuse to provide a breath sample to be analyzed by means of a roadside screening device, leaves the accused open to the same sentencing provisions as those available to the court in sentencing an accused for an over .08' offence, under s. 253(b). This means, according to the applicant, that the . . .morally innocent are . . .punished in the same manner and to the same extent as that impaired driver.; applicants written submissions at para. 33. [6] Allegedly, . . . by removing the criminal consequences of such a refusal, s. 254(2) becomes a reasonable limit on sections 8, 9, and 10(b) of the Charter and can be demonstrably justified in a free and democratic society.; applicants written submissions at para. 38. Defence counsel suggests that a refusal be treated in the same manner as a fail on a roadside screening test, as this would provide a detained individual the right to contact counsel; the following related submissions appear at paragraph 34 of the applicants written submissions: . . . it would be more proportional and in keeping with a free and democratic society to deem a failure or refusal to a s. 254(2) demand as statutory grounds for an arrest and subsequent s. 254(3) breath demand. While this statutory presumption would attract Charter scrutiny, it is respectfully submitted that it would indeed prevail in any section 1 analysis. An individual who refused to cooperate with police at the screening stage would find himself/herself detained, which is no different than if he were arrested and charged with refusal to provide a breath sample, but would have the opportunity to consult with counsel and

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ultimately, after receiving legal advice, decide whether to incriminate and perhaps exculpate himself/herself or not. It is respectfully submitted that this approach is more in keeping with the objectives of the legislation and with the spirit and wording of the Charter.

Section 8: taking of roadside sample allegedly constituting unreasonable search or seizure [7] As set out at paragraph 6 of the applicants written submissions, Mr. Haryett begins with the premise that it is trite law that the taking of a breath sample constitutes a search or seizure that potentially attracts s.8 Charter scrutiny; defence counsel relies upon the following cases in support of this principle: R. v. Wills (1992), 70 C.C.C. (3d) 529 (Ont. C.A.) (Wills), R. v. Covell, [1993] A.J. No. 170 (Alta. Q.B.); and R. v. Bernshaw (1995), C.C.C. (3d) 193 (S.C.C.). [8] In Wills, the Court dismissed the accuseds appeal from a conviction for impaired driving causing death. The circumstances reveal the police administering an approved screening test to the accused, following the accuseds involvement in a serious motor-vehicle accident. Upon the test registering a warn reading, the accused agreed to take a Breathalyzer test; the police advised him that the test would not provoke any alcohol-related charges; the pretense being that the results would aid him in a potential civil suit. The accused registered a high reading on the Breathalyzer; an investigation later revealed that the approved screening device had malfunctioned. The Ontario Court of Appeal specified that in certain circumstances, the taking of a breath sample constituted a seizure. In Wills the Court indicated that the fact that the accused did not realize the potential consequences of consenting to the Breathalyzer rendered his consent invalid; the Court held that the taking of the sample constituted a seizure. The fact of a warrantless seizure placed the onus of establishing reasonableness upon the crown. The Court specified that once the accuseds consent was set aside, there was no justification for the search; much less reasonable justification. [9] Ultimately, however, the Court, in Wills, admitted the Breathalyzer result. This, in part, on the basis that if the screening device been functioning properly, the police would have had a legal right to make the Breathalyzer demand; the accused would have registered a fail on the ALERT device. The Court opined that the s. 8 Charter violation was not serious, and held that admitting the evidence would not affect the fairness of the trial. [10] Wills is cited in R. v. Covell, [1993] A.J. No. 170 (Alta. Q.B.) (Covell), a case in which the accused successfully appealed convictions for driving with a blood alcohol level of over .08, and impaired driving. The facts in Covell include the accused being asked to provide a roadside breath sample in circumstances where a constable approached the accuseds vehicle and spotted a bottle of beer between the legs of the accused; the bottle was three-quarters full; upon speaking to the accused, the constable observed that the accused had bloodshot and glassy eyes; the constable detected an odour of alcohol on the accuseds breath. The Court accepted that the constable reasonably suspected that the accused had alcohol in his body. The constable was not able to have a screening device brought to the scene, and, therefore, had the accused walk 1 and

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blocks to the police station. The accused was not advised of his Charter rights before taking the test at the station, which he failed. He was then arrested for impaired operation, and read his rights, and cautioned. The accused spoke to a lawyer before providing two breath samples. [11] In Covell, the Alberta Court of Queens Bench discussed the fact that the accused was detained within the meaning of s. 10 of the Charter, upon being given the demand for the screening device test, and cited Thomsen v. The Queen (1988), 40 C.C.C. (3d) 411 (S.C.C.), and R. v. Grant (1991), 67 C.C.C. (3d) 268 (S.C.C.) for the principles that section 254(2) imposed a limit upon, and violated, an individuals s. 10(b) rights, but that the restriction on a persons s. 10(b) rights, was justified, to a limited extent, by section 1. [12] Upon turning to the s. 8 Charter issue, in Covell, the Court considered whether the accused consented to providing the samples, and thereby, made the samples the product of voluntary delivery, as opposed to a seizure. The Court answered this query by indicating that the accused had no awareness that the officer was not entitled to make the s. 254(3) demand; the accused had no obligation to comply. In considering whether the taking of the sample was reasonable, the Court, in Covell, held that the taking of the samples constituted a s. 10(b) violation, and the constables mistaken belief that the accused had consented to the taking of the samples did not make their taking reasonable, in the face of invalid consent. [13] In short, the Wills and Covell cases indicate that circumstances where the taking of a breath sample constitutes a seizure include those where the sample is taken absent the valid consent of the accused. [14] The case of R. v. Bernshaw, [1995] 1 SC.R. 254 (Bernshaw) is also relied upon by the applicant. I will not go into detail as to the facts and principles set out therein. Essentially, the case indicates that a proper roadside screening test gives rise to the reasonable and probable grounds to demand a breath sample pursuant to s. 254(3). Given that the applicant relies upon Bernshaw for the principle that a taking of a breath demand constitutes a seizure that may invoke s. 8 Charter considerations, I observe that Sopinka J. refers to a lawful search and seizure, at para. 51, in indicating that the reasonable grounds required by s. 254(3) serve a dual purpose: [t]he requirement in s. 254(3) that reasonable and probable grounds exist is not only a statutory but a constitutional requirement as a precondition to a lawful search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms. [15] The applicant relies upon Collins v. The Queen (1987), 33 C.C.C. (3d) 1 (S.C.C.) (Collins) in submitting that, [c]learly, the taking of a breath sample at the roadside is done without any form of judicial authorization. Accordingly, it is a warrantless search or seizure which is thereby prima facie unreasonableapplicants written submissions at para 8. [16] In Collins, the facts included the appellant being subjected to a throat hold by a police officer while sitting in a pub; the officer thereby obtained a balloon containing heroin; no warrant had been obtained. Lamer J., for the majority, considered the fact that the search was purportedly authorized by s. 10(1) of the Narcotic Control Act, R.S.C. 1970, c. N-1, which provided, in part,

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that a peace officer could enter and search any dwelling-house in which he reasonably believed there was a narcotic by means of, or in respect of which, an offence under the Act had been committed. In short, the trial judge did not accept that this requisite reasonable belief was present, as the search was fuelled only by the officers suspicion; the trial judge held that the search was unlawful, unreasonable, that it violated the accuseds section 8 Charter rights; the evidence was admitted, however, and the accused convicted of possession of heroin. Upon appealing her conviction, in Collins, the appellant alleged that the evidence was the result of a search that was unreasonable under section 8 of the Charter. [17] In Collins, Lamer J. adopted the American position that a warrantless search is prima facie unreasonable, and requires the party seeking to justify the search to rebut the presumption of unreasonableness. At page 14 of Collins, Lamer J. states: This shifts the burden of persuasion from the appellant to the Crown. As a result, once the appellant has demonstrated that the search was a warrantless one, the Crown has the burden of showing that the search was, on a balance of probabilities, reasonable. A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable. Condition precedent, ie., reasonable suspicion, allegedly fails to meet requirement for search or seizure [18] The applicant in the present case concedes that the taking of the roadside sample is authorized by law, i.e. s. 254(2), and that . . . the manner in which such a search or seizure is conducted is reasonable.; applicants written submissions, para. 11. The applicant takes issue with the law itself however, submitting that s. 254(2) is not a reasonable law. The applicant takes the position that a reasonable suspicion, which is the condition precedent to a s. 254(2) demand, does not meet the minimal constitutional requirement for a search or seizure.; applicants written submissions at para. 13. The applicant bases this position upon the premise that no legislation, aside from section 254(2) subjects a person or premise, to a search or seizure on a standard that is lower than that of reasonable and probable grounds. [19] In the context of this portion of his argument, counsel for the applicant cites the case of Hunter et al. v. Southam Inc. (1984), 14 C.C.C. (3d) 97 (S.C.C.) for the principle that the minimum requirement for judicial authorization for a search, i.e., a search warrant, is reasonable and probable grounds. The applicant also points to s. 11 of the Controlled Drugs and Substances Act, citing the fact that issuance of a warrant requires that a peace officer have a belief, based on reasonable and probable grounds, that an offence has been committed. Section 495 of the Code, which deals with arrest without warrant is also relied upon by the applicant in this context; the applicant cites the requisite belief, based on reasonable grounds, that an offence has been committed.

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[20] Defence counsel likens the foregoing situations and provisions to s. 254(3), indicating that this provision requires that a peace officer believe, on reasonable and probable grounds, that an offence under s. 253 has been committed before making the Breathalyzer demand. The applicant refers to Bernshaw in this context, for the principle that . . . his belief must be sustainable on both objective and subjective grounds.; applicants written submissions at para. 14. On the face of it, these are an accurate statement of the law; likewise, the nature of the principle underlying the submissions set out at paragraph 16: it is true that s. 254(2) does not require a peace officer to have a reasonable suspicion that a criminal offence has been committed. Further, it is an accurate characterization of the law to state (as the applicant does at para. 16): . . . it is not against the law in Canada to drink and drive. It is against the law to drive while impaired by alcohol or with a blood alcohol concentration in excess of the legal limit. [21] It is useful to observe that the scheme under s. 254 of the Code is unique. Section 254(2) provides for a statutory investigatory tool. As discussed by Sopinka J., in Bernshaw, the roadside breath demand is an evidentiary tool: 49 It is clear that Parliament has set up a statutory scheme whereby a screening test can be administered by the police merely upon entertaining a reasonable suspicion that alcohol is in a person's body. The purpose behind this screening test is evidently to assist police in furnishing the reasonable grounds necessary to demand a Breathalyzer. The roadside screening test is a convenient tool for confirming or rejecting a suspicion regarding the commission of an alcohol-related driving offence under s. 253 of the Code. A "fail" result may be considered, along with any other indicia of impairment, in order to provide the police officer with the necessary reasonable and probable grounds to demand a Breathalyzer. Normally, where a properly conducted roadside screening test yields a "fail" result, this alone will be sufficient to furnish a police officer with such grounds. [22] As pointed out by the Crown, the reasonable suspicion requirement under s. 254(2) was canvassed by the Alberta Court of Appeal in R. v. Norbert, [1993] A.J. No. 942 (Alta. C.A.) Norbert). In Norbert, a similar argument to that put forward by the applicant was advanced, but not answered directly by the court; this is evidenced by the reasons of Foisey J.A. set out at para. 1, which reads: [w]e need not decide whether the search and seizure is unreasonable for the reason submitted by the appellant, namely that the test of reasonable suspicion is lower than the threshold test described in Hunter v. Southam (1985), 14 C.C.C. (3d) 97 (S.C.C.). The Court went on to stipulate that the reasonable suspicion test was upheld by s. 1 of the Charter, stating (at paragraphs 1-3): . . . We are of the view that in any event the test of reasonable suspicion employed in s. 254(2) of the Code is saved by s. 1 of the Charter. The scheme set out in s. 254(2) has been upheld by the Supreme Court of Canada in R. v. Thomsen (1988), 40 C.C.C. (3d) 411 (S.C.C.); similarly have check stops and roadside inspections

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in R. v. Ladouceur, (1990), 56 C.C.C. (3d) 22 (S.C.C.) and R. v. Mellenthin (1993), 76 C.C.C. (3d) 41 (S.C.C.). 2 This court in R. v. Gilroy (1987), 3 M.V.R. (2d) 123 (Alta. C.A.) has said the following about the interplay between s. 1 of the Charter and s. 254(2) of the Code (then s. 238(2) of the Code), and I quote: Even if the workings of s. 238(2) are somehow predicated upon Charter detention or search, arbitrary or unreasonable, they have been cast as justifiable limitations. 3 We agree with the Crown that the word "reasonable" in the section imparts a degree of objectivity which renders the search as unobtrusive as possible thus meeting the second criterion in R. v. Oakes (1986), 50 C.R. (3d) 1. Accordingly, we dismiss the appeal. Inability to exercise s. 10(b) right allegedly informing fact that law authorizing s. 254(2) demand is unreasonable [23] The applicant submits that the court must consider the reasonableness of the law in light of the fact that a motorist is not afforded the right to contact a lawyer at the stage of a being subjected to a s. 254(2) demand; this, despite the fact that criminal charges could flow from providing a sample, or refusing to provide one. The applicant cites the cases of R. v. Thomsen, [1988] S.C.J. No. 31 (Thomsen), and R. v. Grant (1991), 67 C.C.C. 3d 268 (S.C.C.), in submitting (in part) that, . . . the Supreme Court of Canada has held that although s. 254(2) limits and infringes the right to counsel, that limitation on the right to counsel is demonstrably justified in a free and democratic society. In determining the latter, the Court applied the test for s. 1 scrutiny as set out in R. v. Oakes (1986), 24 C.C.C. (3d) 321.; applicants written submissions at para. 18. [24] In the same context, the applicant also addresses the principle set out in Hufsky v. The Queen (1988), 40 C.C.C. (3d) 398 (S.C.C.) (Hufsky), to the effect that although the random stop of a motor vehicle violates s. 9 of the Charter, . . . the Courts have held that given the objective of detecting and deterring impaired driving the law permitting such an arbitrary detention is a reasonable limit that is demonstrably justified in a free and democratic society and hence, like the limit on the right to counsel, saved by resort to. s.1 of the Charter. ; applicants written submissions at para. 19. In Thomsen, Le Dain J. is clear that a motorist is detained within the meaning of s. 10 when being investigated pursuant to the predecessor to section. s. 254(2), and that the provision violates the right of an individual to retain and instruct counsel without delay, but that the s. 10(b) violation is justified by s. 1 of the Charter. [25] I note that, at paragraph 21 of Thomsen, LeDain J. reviews the import of the legislative purpose that is served by s. 254(2), and adopts the 10 conclusions that were drawn by Finlayson J.A. of the Ontario Court of Appeal, in R. v. Seo (1986), 25 C.C.C.(3d) 385 (Seo), on the

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problem of impaired driving; these conclusions were derived from materials that were placed before the court in Seo. As explained at paragraph 21 of Thomsen, the same material, consisting of statistics, reports, studies, articles, Canadian legislative history and foreign legislation with respect to the problem of impaired driving. . . that was being relied upon in Thomsen, was also relied upon by the respondent in R. v. Hufsky, [1988] 1 S.C.R. 621 (the appeal being argued at the same time as Thomsen). [26] Given the applicants submissions with respect to the reasonable suspicion standard, and on the fact that the criminal consequences for refusal equate to those for blowing over .08 on the Breathalyzer, it is useful to acknowledge three of Finlayson J.A.s conclusions, as derived from the materials, and set out at paragraph 21 of Thomsen: (7) The number and severity of accidents is very pronounced at the so-called moderately impaired level of between 80 and 120 mg. (8) The detection of drivers who are impaired at the moderate level of impairment through observation by trained police officers is ineffective. ... (10) The most effective deterrent is the strong possibility of detection. [emphasis mine]. [27] I also observe the comments of Le Dain J.A. (in Thomsen) as to the import of the perceived risk of detection: 22 The important role played by roadside breath testing is not only to increase the detection of impaired driving, but to increase the perceived risk of its detection, which is essential to its effective deterrence. In my opinion the importance of this role makes the necessary limitation on the right to retain and instruct counsel at the roadside testing stage a reasonable one that is demonstrably justified in a free and democratic society, having regard to the fact that the right to counsel will be available, if necessary, at the more serious Breathalyzer stage. [emphasis added]. [28] In Hufsky, the Court held that random spot checks violated the s. 9 Charter right not to be arbitrarily detained; the Court held that the discretion given to police officers to stop vehicles, under s. 189 of the Highway Traffic Act (HTA)combined with the lack of criteria governing the exercise of that discretion, made the discretion arbitrary. The Court further held that the authority to stop vehicles pursuant to s. 189(a) of the HTA constituted a reasonable limit prescribed by law that is demonstrably justified in a free and democratic society within the meaning of s. 1 of the Charter. At page 408, Le Dain refers to the same materials that were considered in Seo, and Thomsen, stating:

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. . . The conclusions that were drawn from that material by Finlayson J.A. in Seo were adopted by this court in Thomsen, and they need not be restated here. It is sufficient to note what would appear to be of particular relevance in the material to the justification of a random stop authority. What the material emphasizes is not only the seriousness of impaired driving, but the difficulty of detecting it by observation of the driving and the importance, in order to increase the effective deterrence of it, of increasing the perceived risk of its detection. The material refers at several places to the random stop or spot check of drivers as calculated to increase the perceived risk of the detection of impairment because it affords a police officer a closer opportunity for observation of a driver's condition. It is seen as a means of making mandatory roadside breath testing more effective. [29] I note that, at page 410, of Hufsky, the Court addressed the issue of whether random spot checks constituted a search in violation of s. 8: In my opinion, the demand by the police officer, pursuant to the above legislative provisions, that the appellant surrender his driver's licence and insurance card for inspection did not constitute a search within the meaning of s. 8 because it did not constitute an intrusion on a reasonable expectation of privacy: cf. Hunter v. Southam Inc. (1984), 14 C.C.C. (3d) 97, 11 D.L.R. (4th) 641, [1984] 2 S.C.R. 145. There is no such intrusion where a person is required to produce a licence or permit or other documentary evidence of a status or compliance with some legal requirement that is a lawful condition of the exercise of a right or privilege.

Cumulative effect of violations allegedly requires s. 1 scrutiny [30] The applicant essentially acknowledges the existing principles relevant to ss. 8, 9, and 10(b) and s. 254 of the Code, but argues that there is a cumulative effect to be considered, and this requires that the targeted provisions be scrutinized in light of the Oakes test. As to section 8, the applicant concedes that the taking of a sample pursuant to s. 254(2) is authorized by law; the applicant takes issue, however with the condition precedent to the taking of the sample: a reasonable suspicion. As to ss. 9 and 10(b) of the Charter, the applicant acknowledges the position of the Supreme Court of Canada in cases including Thomsen, and Hufsky, yet challenges the reasonableness of the law and the fact that it prohibits a motorist from contacting counsel at the roadside screening stage. According to the applicant, it is the cumulative effect of the Charter breaches that is fatal to the Code provisions, or this is my understanding, based upon para. 20 of the applicants written submissions: [n]evertheless, it is respectfully submitted that a law which encompasses three breaches to the most fundamental protections afforded by the Charter in relation to the criminal law cannot be considered reasonable and must therefore be subjected the s. 1 Charter scrutiny in order to unhold [sic] its validity.

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[31] The applicant cites the two-stage test set out in R. v. Oakes (1986), 24 C.C.C. (3d) 321 (S.C.C.). I will not reproduce the applicants submissions that set out the test itself; I find that a comprehensive summary of the test appears at paragraph 20 of Thomsen (which refers to Edward Books, infra, a case cited by the applicant) as follows: 20 The next issue in the appeal is whether the limit imposed on the right to retain and instruct counsel by s. 234.1(1) of the Code is a reasonable one demonstrably justified in a free and democratic society, within the meaning of s. 1 of the Charter. The test for determining that question was formulated in R. v. Oakes, [1986] 1 S.C.R. 103, and restated by Dickson C.J. in R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, as follows at pp. 768-69: Two requirements must be satisfied to establish that a limit is reasonable and demonstrably justified in a free and democratic society. First, the legislative objective which the limitation is designed to promote must be of sufficient importance to warrant overriding a constitutional right. It must bear on a "pressing and substantial concern". Second, the means chosen to attain those objectives must be proportional or appropriate to the ends. The proportionality requirement, in turn, normally has three aspects: the limiting measures must be carefully designed, or rationally connected, to the objective; they must impair the right as little as possible; and their effects must not so severely trench on individual or group rights that the legislative objective, albeit important, is nevertheless outweighed by the abridgment of rights. The Court stated that the nature of the proportionality test would vary depending on the circumstances. Both in articulating the standard of proof and in describing the criteria comprising the proportionality requirement the Court has been careful to avoid rigid and inflexible standards. [my emphasis]. [32] The crux of the applicants position on the implications of the Oakes test in the present case appears at paras 25 and 26 of the applicants written submissions: The Applicant concedes that the first step of the Oakes test is made out. Impaired driving is a pressing and substantial concern in Canadian society and detection and deterrence of such drivers is of significant import. . . . However, the applicant respectfully submits that s. 254(2) of the Criminal Code does not meet the proportionality requirements of the second branch of the Oakes test. [33] It is at this stage of the argument that defence counsel points to the penalty for a s. 254(2) refusal, and the fact that the Code provisions leave a motorist who refuses to provide a sample

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open to the same penalties that follow a refusal pursuant to s. 254(3), or a conviction pursuant to s. 253(a) or (b). This, absent the right to consult with counsel at the roadside stage. The moral blameworthiness of the respective offenders is questioned by the applicant at para 30 of the applicants written submissions: . . . it appears somewhat incongruous that an individual who can be absolutely innocent of any moral wrongdoing and who mistakenly asserts a non-existent right to counsel can be treated in a manner similar to an individual who, as the result of a higher degree of intoxication thereby affording the demanding officer the requisite reasonable and probable grounds, is afforded the full extent of the protections offered by the Charter. [34] And at para 33, the applicant states: [t]he applicant does not seek to restrain or inhibit the detection and prosecution of impaired drivers. Rather, the applicant seeks to ensure that the morally innocent are not punished in the same manner and to the same extent as that impaired driver. The applicant submits (at para. 34) that . . . it would be more proportional and in keeping with a free and democratic society to deem a failure or refusal to a s. 254(2) demand as statutory grounds for an arrest and subsequent s. 254(3) breath demand. . .. (Reference is then made to the fact that the court is allowed to draw an adverse inference, under s. 253(a), in relation to the refusal to provide a sample). [35] Keeping in mind the three components of the proportionality test, i.e., that the law must be rationally connected to the objective; that the law must impair the right no more than necessary to accomplish the effect, and that the law must not have a disproportionately severe effect on the persons to whom it applies (see Hogg, infra, at p. 38-18), this argument appears to relate to the least drastic means criteria. One obstacle for the applicant at this stage of the argument is lack of judicial authority in support of this position. Absent opening with the Oakes test, and concluding with some speculative remarks on the reasons in Thomsen, the applicant offers no case law to support the submissions set out in paras 26 through 35 of the written submissions (as discussed in the foregoing). [36] With respect to Thomsen, the applicants submissions are speculative. The applicant submits that the proportionality aspect of the law is informed by supposition that Le Dain J. neglected to put his mind to the fact that an individual who refuses to provide a s. 254(2) sample will not be given the same right to counsel as someone who blows a fail on the roadside test. This omission is purportedly evidenced by the fact that Le Dain J.s justification for suspending the motorists s. 10(b) Charter rights at the roadside stage is tied to . . .the fact that the right to counsel will be available, if necessary, at the more serious Breathalyzer stage. . . .; see Thomsen, at para. 22, as cited earlier in this Judgment. [37] As pointed out by the Crown, the issue of whether ss. 7, 8, and 10(b) of the Charter were violated by what was then s. 238(5) of the Code, which made it an offence to refuse to provide a roadside sample, was canvassed by the Ontario Court of Appeal in R. v. Bhagwandat (Bhagwandat). The accused was charged with refusing to provide a roadside breath sample, and

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challenged the constitutionality of the provision; the provincial court judge held that the section violated the accuseds ss. 7, 8, and 10(b) rights, and was of no force and effect; the crowns appeal to the district court succeeded. The district court pointed directly to the sanction for the offence, in stating: [t]he criminal sanction for refusing to comply with a Breathalyzer demand as found in s. 238(5) was necessary as part of a careful scheme to detect impaired drivers.; R. v. Bhagwandat, [1988] O.J. No. 2866 (Ont. Dist. Crt.). The accuseds appeal to the Ontario Court of Appeal was dealt with, in a concise judgment, as follows: 1 BROOKE J.A.: The appeal has been carefully and fully argued. We are all of the opinion that this appeal fails. We think the argument is foreclosed by the judgment in R. v. Seo (1986), 54 O.R. (2d) 293, affirmed by R. v. Hufsky, [1988] 1 S.C.R. 621, R. v. Thomsen, [1988] 1 S.C.R. 640, 40 C.C.C. (3d) 411 at 421-422, and by those judgments. We think the criminalization of refusal is a reasonable limit under s. 1 of the Canadian Charter of Rights and Freedoms, for similar reasons as those expressed by Le Dain J. in Hufsky, supra, at p. 409, and in Thomsen, supra, at p. 422. As to the other grounds, we are of the opinion that the appellant derives no comfort from the judgment of this Court in R. v. Campbell 44 C.C.C. (3d) 502. This ground of appeal also fails. 2 The appeal fails and is dismissed.

[38] Again, this argument on the part of the applicant leads me to recall the reasons in Hufsky (as cited in the foregoing) pointing to the . . .difficulty of detecting it [impaired driving] by observation of the driving and the importance, in order to increase the effective deterrence of it, of increasing the perceived risk of its detection detecting and deterring the offence of impaired driving in this country. . .. This sentiment is emphasized in Thomsen, and it is difficult to surmise that the reference to the more serious stage of the Breathalyzer, on the part of Le Dain, means anything to the refusal offence under s. 254(5). In my mind, the scheme of the legislation, and particularly, the lower standard of a reasonable suspicion in s. 254(2), all point to a need to provide a means to reaching the objective of detecting and deterring impaired driving. [39] Instead of surmising that Le Dain forgot to consider the sanctions for refusal when referring to the more serious Breathalyzer stage in Thomsen, it is in congruence with the cases to interpret the relevant provisions as they appear, and to surmise that Parliament viewed a refusal to provide a roadside sample as being equally serious as committing a s. 253 offence. Considering the magnitude of the problem, and the detection issues discussed in Thomsen and the related cases, this does not seem at odds with the overall objective of the legislation. As mentioned earlier in this Judgment (with reference to Bernshaw), a s. 254(2) demand is made at an investigative stage, and the fail provides the requisite reasonable grounds to make the Breathalyzer demand; the certificate, in turn, is admissible as evidence on the prosecution of a s. 253 offence. [40] The further critical difficulty facing the applicant in the present case, with respect to the refusal equals fail argument, is the fact that a similar argument was advanced, and rejected, in

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in R v. Thompson, [2001] O.J. No. 449 (Ont. C.A.) (Thompson). In Thompson, Morden J.A ( for the Court), dealt with several issues, the second being whether s. 254(5), insofar as it related to s. 254(2), infringed ss. 7, and 10(b), of the Charter, and was thereby, unconstitutional. The appellant, in Thompson, sought to dispel the earlier ruling, in Bhagwandat, arguing that developments in the law (and the resulting implications to ss. 7 and 10(b), )demanded that the constitutionality of s. 254(5) be reconsidered. Morden J.A. set out the appellants argument with respect to the result of a fail on the roadside test, as follows 13 The appellant submits that as a result of the subsequent developments there is a more profound infringement than existed at the time of Bhagwandat that can no longer be justified under s. 1 of the Charter. He concedes that it could be justified if s. 254(5) were replaced by a provision that would make the failing or refusing to comply with a s. 254(2) demand a basis for making a s. 254(3) breathalyser demand. Relatedly, Morden J.A. states: . . . The appellant does not challenge the demand part of the statutory scheme (s. 254(2)) but submits that the penalization part of it (s. 254(5)) is unconstitutional and not justifiable under s. 1 of the Charter. He submits that s. 254(5) would be justifiable if it provided that the legal consequence of failure or refusal to comply with a s. 254(2) demand were that the motorist be required to submit a s. 254(3) (breathalyser) demand. . . . [41] At paragraph 30 of Thompson, Morden J.A. points to the fact that the constitutionality of ss. 234.1 of the Code was an issue in Thomsen, and indicated, at para. 29, that the constitutionality of the demand provision could not be considered separately from the offence creation provision: 29 I would also note that in Thomsen the constitutionality of s. 234.1 of the Code was an issue. This included both subsection (1), the demand provision (now, in altered form, s. 254(2)) and subsection (2), the offence-creation provision (now, s. 254(5)). Since these provisions are essential parts of one legislative scheme, it is difficult to see how the constitutionality of subsection (1) could be considered apart from that of subsection (2). [42] Morden J.A. goes on to recognize that the breach of s. 10(b) of the Charter was deemed justified under s. 1, in Thomsen, and then cites the portion of the reasons in Thomsen where Le Dain J. pointed to the objectives to be addressed by what is now, in altered form, s. 254(2) of the Code, as informed by the 10 conclusions set out by Finlayson J.A. in Seo (as discussed earlier in this Judgment). [43] In the context of discussing the relationship between s. 7 and the principle against selfincrimination, the court engages in a discussion of the fact that although the screening test results

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are not admissible evidence, it can lead to admissible evidence leading to conviction, in the form of a Breathalyzer result. The Court then points to the fact that s. 254(2) is geared not so much at prosecuting motorists, as getting a certain group of them off the road: 36 It is important to recognize that the basic purpose of s. 254(2) is more preventive than it is prosecutorial. The "importance of the search for truth" . v. White at p. 277), which is to be weighed in the balance, does not relate primarily to the conviction of the motorist but, rather, in the case of a "failed" result, to getting the motorist then and there off the road. The point is clearly made in R. v. Smith (1996), 105 C.C.C. (3d) 58 (Ont. C.A.), a case concerned with the validity of police questions to motorists detained by police officers under s. 48 of the Highway Traffic Act to justify making a demand under s. 254 of the Criminal Code. . . . [44] The interplay between ss. 254(2) and 254(3), and the fact that the roadside test is an expedient means to determining who should be detained further, is discussed in Thompson, as follows: 37 Further, the degree of intrusion in complying with the demand on the convenience of the motorist is minimal. In R. v. Frohman; R. v. M.C.O. (1987), 35 C.C.C. (3d) 163 (Ont. C.A.) Cory J.A. said for this court at p. 175: The right to drive, important as it may be, is one that must be licensed and controlled for the protection of society. Section 234.1 of the Code strikes a very reasonable balance between the rights of an individual and those of society. Where the circumstances are such that a roadside test is required it must be taken speedily or the very purpose of the section is frustrated. If the individual passes the test then the inconvenience is minimal, the delay no more than that caused a driver by heavy traffic or a red traffic signal. [emphasis mine]. 38 Along the same lines, Cameron J.A. in R. v. Talbourdet (1984), 12 C.C.C. (3d) 173 (Sask. C.A.) at p. 181 said: This is a minor inconvenience and the person upon whom such a demand for clarification has been made runs no risk of being found guilty of any offence by submitting to the [roadside] test. If he passes the test he is free to go on his way; if the fails it then, of course, there are reasonable and probable grounds to believe that he may be guilty of an offence, and, in that event, a peace officer may make a further demand of him, namely, that he submit to a

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more definitive test by means of a breathalyser machine. And at that stage he has a right to consult a lawyer: R. v. Therens. [45] In Thompson, the Court consider s. 1 of the Charter, with Morgan J.A. stipulating, [i]f I am wrong in my conclusion that the extent of the Charter infringement in this case is not different from that in Bhagwandat, and cases cited in it, it will be necessary to consider the question of the continued justification of the infringement under s. 1 of the Charter. Returning to the appellants basic assertion to the effect that a refusal should equate to a fail, in Thompson, the Court of Appeal refers to the proportionality aspect of the Oakes test: 58 What the appeal on the application of s. 1 comes down to is the question of minimal impairment of the right in question. The appellant submits that the criminalization of a refusal does not meet the minimal impairment requirement of justification. In this regard, he submits that the s. 254(5) offence enforcement requirement should be replaced by the creation of a presumption that the act of failing or refusing to provide a roadside breath sample would be the equivalent of "failing" the test, which would justify a s. 254(3) breathalyser demand. [46] The Court considered the impact of the scheme proposed by the appellant in Thompson, as discussed in R. v. Currie, (1988). 8 M.V.R. (2d) 176 (Ont. Dist. Crt.), before determining that any violation of s. 7 would be justifiable under s. 1 of the Charter: 59 We received submissions on each side on whether, in fact, the appellant's proposal would result in lesser impairment and also on whether it would be as effective in carrying out the legislative policy as the current provision. This very issue has been dealt earlier by Kurisko D.C.J. in R. v. Currie (1988), 8 M.V.R. (2d) 176 (Ont. Dist. Ct.) in which he addressed the trial judgment in R. v. Bhagwandat, supra, which had declared s. 254(5) to be unconstitutional. At p. 182 Kurisko D.C.J. said: If as stated in Bhagwandat, "the least intrusive means" (p. 17) were substituted for the foregoing by making "the refusal of a roadside test the equivalent of taking and failing the roadside test" (p. 17, emphasis original) there would undoubtedly be an increase in the frequency of roadside refusals by drivers willing to "take their chances" in hopes of "getting off" as happened in this case. During busy periods (such as Christmas) the overload on trained personnel and limited equipment resulting from such refusals would undoubtedly tax the detailed, time consuming breathalyser procedure beyond its capacity to analyze the increased number of breath samples within the mandatory 2-hour time limit imposed by Parliament. On these occasions the objective of the R.I.D.E. program would surely be severely crippled.

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60 I agree with these observations. This is a case where a degree of deference should be afforded to the legislature. In R. v. Butler (1992), 70 C.C.C. (3d) 129 (S.C.C.) at pp. 164-65, Sopinka J. said for the court that a "perfect" solution is not necessary under s. 1 but simply that the scheme be appropriately tailored in the context of the right that is infringed. . . . Section 12 [47] At para. 45 of the applicants written submissions, in the context of the section 12 Charter argument, the applicant submits that the punishment under s. 255(1), i.e., the effect of a refusal under s. 254(2), is grossly disproportionate to the offence itself. [my emphasis]. As stipulated by Hogg, step 4 is purportedly a test of the means of the law, as opposed to its objective. It demands a proportionality between the effects of the measures that limit the Charter right, and the objective. [48] As to whether a given law has a disproportionately severe effect on the individuals to whom it applies, it is useful to consider the opinion of Peter W. Hogg as set out at section 38.12 of Constitutional Law of Canada, fifth edition, supplemented, volume 2 (Hogg). Essentially, Professor Hoggs point of view on proportionality suggests that to concede that the objective of the law is sufficiently important to justify limiting a Charter right, and the means of pursuing the objective is the least drastic, then it is difficult to successfully argue that the effect of the law is too drastic. At pp. 38-42 of Hogg, the text reads, in part: The requirement of proportionate effect is the fourth and last step in the Oakes tests of justification. . . . In R. v. Edwards Books and Art (1986), . . . Dickson C.J. rephrased the requirement by saying that their effects [that is the effects of the limiting measures] must not so severely trench on individual or group rights that the legislative objective, albeit important, is nevertheless outweighed by the abridgement of rights. . . . Although this fourth step is offered as a test of the means rather than the objective of the law, it has nothing to do with means. The fourth step is reached, it must be remembered, only after the means have already been judged to be rationally connected to the objective (second step), and to be the least drastic of all the means of accomplishing the objective (third step). . . . . . . So far as I can tell. . . this step has never had any influence on the outcome of any case. And I think that the reason for this is that it is redundant. It is really a restatement of the first step, the requirement that a limiting law pursue an objective that is sufficiently important to justify overriding a Charter right. If a law is sufficiently important to justify overriding a Charter right (first step), and if the law is rationally connected to the objective (second step), and if the law impairs the Charter right no more than is necessary to accomplish the objective (third step), how could its effects then be judged to be too severe? A judgment

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that the effects of the law were too severe would surely mean that the objective was not sufficiently important to justify limiting a Charter right. If the objective is sufficiently important, and the objective is pursued by the least drastic means, then it must follow that the effects of the law are an acceptable price to pay for the benefit of the law. [49] It should be noted that when Hogg refers to the second step, he is referring to what is also known as the second stage of the Oakes test, that steps 2, 3, and 4, as discussed in the foregoing quotation, form the three components of the proportionality test as referred to by Dickson C.J. in Oakes. [50] The applicant relies upon the case of Smith v. The Queen (1987), 34 C.C.C. (3d) 97 (S.C.C.) (Smith) in arguing that . . . s. 254(5) creates an offence punishable by s. 255(1) which constitutes a cruel and unusual punishment when considered in respect to the offence of failing or refusing to provide a breath sample pursuant to a s. 254(2) demand and thereby infringes s. 12 of the Charter.; applicants written submissions at para. 40. In Smith, the Court held that a provision of the Narcotic Control Act, R.S.C. 1970 (N.C.A.), c. N-1 that provided for a minimum term of imprisonment of 7 years, infringed s. 12 of the Charter; the majority held that the provision offended the guarantee to be protected against the imposition of cruel and unusual punishment, and did not constitute a reasonable limit under s. 1. The particular provision of the N.C.A. under consideration applied to the importation of all types of narcotics, and provided for the same minimum sentence, regardless of quantity or the personal circumstances of the offender. [51] Wilson J.s reasons, as set out at page 147 of Smith, indicate that the type of circumstances that will invoke the protection of s. 12 of the Charter. Wilson J. refers to the separate reasons of Lamer J. in Smith, in indicating that section 12 of the Charter extends beyond cruel punishment to punishments that are a grossly disproportionate answer to a given offence: . . . s. 12 is not confined to punishments which are in their nature cruel. It also extends to punishments which are, to use his words, "grossly disproportionate". And by that I mean that they are cruel and unusual in their disproportionality in that no one, not the offender and not the public, could possibly have thought that that particular accused's offence would attract such a penalty. It was unexpected and unanticipated in its severity either by him or by them. It shocked the communal conscience. It was "unusual" because of its extreme nature. Adopting Laskin C.J.'s concept of "interacting expressions colouring each other" (see R. v. Miller and Cockriell 31 C.C.C. (2d) 177 at p. 184, 70 D.L.R. (3d) 324 at p. 332, [1977] 2 S.C.R. 680 at pp. 689-90), it was so unusual as to be cruel and so cruel as to be unusual. Yet, as Lamer J. points out, s. 5(2) of the Narcotic Control Act precludes the imposition of a sentence less than seven years for the importation of even a minimal quantity of marijuana, a solitary cigarette. I agree with my colleague that

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this would be a cruel and unusual sentence to impose on a youthful offender with no previous record; indeed, it would be a sentence "so excessive as to outrage standards of decency": see R. v. Miller and Cockriell, supra, at p. 183 C.C.C., p. 331 D.L.R., p. 688 S.C.R. Yet the judge has no alternative under the section. [52] Smith dealt with one mandatory penalty in answer to a range of offences and circumstances, regardless of the type of narcotic, its quantity, and the circumstances of each offender. Section 255(1) provides for a range of sentence; this range is available for both s. 253 and 254 offences, but the provision provides for progressively harsher sentences, depending upon whether accused is a first or repeat offender. [53] The crown relies upon the case of R. v. Kumar (1993), 85 C.C.C. (3d) 417 (B.C.C.A.) (Kumar), (application for leave to appeal dismissed, without reasons) in responding to the applicants s. 12 Charter argument. Specifically, the crown makes the following assertions, as set out at para. 14 of the Written Submissions of the Crown: With respect to the applicants s. 12 arguments, the mandatory minimum penalty scheme for impaired related offences was upheld by the BCCA in Kumar. That case involved an accused appealing her [sic] mandatory 14-day jail sentence imposed for a second impaired-driving related offence. It is instructive as it highlights the two-stage analysis developed in R. v. Goltz, [1991] 3 S.C.R. 485. This method of analysis is meant to assist courts in determining whether or not a sentence or mandatory minimum sentencing scheme breaches the high threshold set by the Supreme Court of Canada in R. v. Smith for cruel and unusual punishment. Kumar uses that process in the specific context of s. 255(1). [54] In Kumar the crown appealed from a decision that held that the minimum sentence of 14 days imprisonment for a second "drinking-driving" conviction, that was provided for under s. 255 of the Code, violated the guarantee against "cruel and unusual treatment or punishment" under s. 12 of the Charter. The facts are set out by Taylor J.A. (for the majority) at pages 433434 of Kumar, as follows: Mr. Kumar had pleaded guilty to a charge under s. 254(3) of the Code of failing to provide a breath sample when called on by a police officer to do so. Before entering his plea he was served with the notice required by s. 665(1) of the Code that the Crown intended to seek greater punishment because he had been convicted, four years and nine months earlier, on a charge of having care and control of a motor vehicle with a blood-alcohol level in excess of the ".08" statutory limit, contrary to s. 253(b) of the Code. Judge Clare was told that Mr. Kumar was required to submit to the Breathalyzer test after he had been involved in a head-on motor vehicle collision and appeared to the attending police officer to be intoxicated. He was charged with driving while his ability [page 434] was impaired, contrary to s. 253, as well as with the s. 254(3) offence, but the Crown

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stayed proceedings on the impaired count when he entered his guilty plea to the charge of failing to provide a breath sample. Crown counsel then invoked the mandatory minimum sentence of 14-days imprisonment provided by s. 255(1)(a)(ii) by establishing Mr. Kumar's prior conviction and that he had been served with the required notice under s. 665(1). No constitutional issue was raised before Judge Clare. It seems that the judge imposed a 15-day sentence, rather than the 14-day statutory minimum, so as to meet the requirements for service of the sentence intermittently at week-ends. From his remarks it appears, as would be expected, that Judge Clare directed his mind only to the fact that the Crown had called for the minimum sentence and had established the necessary evidentiary basis for invoking it. The judge ordered in addition that Mr. Kumar's driving licence be suspended for one year and that he pay $35 as the "victim fine surcharge" which was by then required under s. 727.9 of the Code. Mr. Kumar changed counsel and appealed to the County Court of Westminster, then the appropriate summary conviction appeal court. His new counsel gave the required notice to the Attorneys-General that he intended to seek a declaration that ss. 665 and 255(1) of the Code offend ss. 7 and 12 of the Charter, and are, therefore, without force or effect. [my emphasis]. [55] A portion of the reasons of the summary conviction appeal court judge, Justice Hogarth, are set out at page 435-436, are of particular relevance to the issue before me in the present case: . . . The judge noted that the minimum sentence would [page 436] apply to a driver convicted of refusing to provide a breath sample whose ability to drive was not impaired at all, including one who believed in error that a lawful reason existed for refusal to take the test. He held that the violation could not be justified under s. 1 of the Charter having in mind, as in Mr. Kumar's case, that neither the first nor the second offence need be proved to have resulted in any harm to the public, and to the fact that the minimum sentence is applicable without regard to the number of years which have elapsed between the first offence and the second. ... [emphasis mine]. [56] Justice Hogarths reliance on the case of R. v. Goltz (1990), 52 C.C.C. (3d) 527, before such time as the decision was reversed by the Supreme Court of Canada, is referenced in the reasons appearing at page 436 of Kumar:

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In reaching his decision on the s. 12 issue, Mr. Justice Hogarth relied on the then recent decision of this court in R. v. Goltz (1990), 52 C.C.C. (3d) 527, 74 C.R. (3d) 78, 47 C.R.R.. 247 (B.C.C.A.), by which the minimum sentence of seven days' imprisonment established by s. 88(1)(c) of the Motor Vehicle Act, R.S.B.C. 1979, c. 288, for a first conviction of driving after receiving notice of a prohibition imposed under the statute was held to offend s. 12, and not to be justifiable under s. 1. After Mr. Justice Hogarth gave his judgment that decision was reversed by the Supreme Court of Canada, in R. v. Goltz, (1991), 67 C.C.C. (3d) 481 [1991] 3 S.C.R. 485, 8 C.R. (4th) 82 (S.C.C.). The Crown then sought and obtained leave to bring the present appeal. [57] Smith (the case relied upon by the applicant) is discussed beginning at page 438 of Kumar; some of the related discussion includes the following reasons: Of the seven judges who heard argument in Smith in the Supreme Court of Canada, Mr. Justice Chouinard took no part in the judgment and five of the remaining six joined in allowing the appeal. The majority were of the view that it could be said with certainty that in some cases--such as the case of a young adult returning to Canada with a single marijuana "joint" --the seven-year sentence would prove "grossly disproportionate" in relation to the circumstances of offence and offender. They found that the provision, therefore, violated s. 12, and held that this could not be justified under s. 1, there having been no need demonstrated for imposing a disproportionate penalty on "small" offenders as a means of deterring potential "major offenders". None of the judges forming the majority of the court found it necessary to deal with ss. 7 or 9. Mr. Justice McIntyre dissented on the s. 12 issue and dealt with ss. 7 and 9 very briefly. . . . [58] In Kumar, the Court discusses the state of the law as relied upon by Hogarth J., as it stood prior to the Goltz appeal. The Court then discusses the impact of Smith on the Supreme Court decision in R. v. Goltz, (1991), 67 C.C.C. (3d) 481 (S.C.C.) (Goltz), at p. 442: The judgment of this court in Goltz revisited questions at one time thought to have been decided in Konechny regarding the validity of the minimum sentence of seven-days imprisonment, provided by what had by then become s. 88(1)(c) of the Motor Vehicle Act, for driving after having received notice of a driving prohibition imposed under the Act. These questions had, of course, been reopened by the decision of the Supreme Court of Canada in Smith, in particular by the rejection in that case of the view expressed by the majority in Konechny that the exercise of prosecutorial discretion in the laying of charges could be relied on to ensure that no one would be charged with the offence if imposition of the statutory minimum sentence would prove grossly disproportionate in relation to the circumstances of the particular offender and offence. Mr. Justice Wood, writing for this court in Goltz, expressed the view that a seven-day minimum sentence, although short in relation to the

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seven-year penalty in Smith, must still be regarded in our society as a substantial interference with individual liberty, and held that the sentence in issue would in situations which could reasonably be foreseen prove "grossly disproportionate" to the circumstances of offender and offence, and amount, therefore, to "cruel and unusual" punishment under the test in Smith. Mr. Justice Gonthier, writing for the majority in the Supreme Court of Canada in Goltz, did not say that a seven-day sentence could not offend s. 12, but restricted his examination for reasonable hypothetical situations to those in which the prohibition on driving had been imposed for the reason which resulted in prohibition in that case--that is to say for having a bad driving record. Mr. Justice Gonthier excluded from consideration those cases in which the prohibition resulted from defaults unrelated to driving, such as failure to pay money. He recognized two "aspects" of the application of the test for gross disproportionality: (i) application of the test to the circumstances of the particular case, and (ii) its application in other "reasonable hypothetical cir[page 443] cumstances" in which the minimum punishment might have to be imposed. [my emphasis]. [59] The two prong test developed in Goltz is set out at page 443 of Kumar, as follows: Mr. Justice Gonthier described the two "aspects" of analysis under s. 12 in this way (at pp. 496-7): One aspect involves the assessment of the challenged penalty or sanction from the perspective of the person actually subjected to it, balancing the gravity of the offence in itself with the particular circumstances of the offence and the personal characteristics of the offender. If it is concluded that the challenged provision provides for and would actually impose on the offender a sanction so excessive or grossly disproportionate as to outrage decency in those real and particular circumstances, then it will amount to a prima facie violation of s. 12 and will be examined for justifiability under s. 1 of the Charter. There may be no need to examine hypothetical situations or imaginary offenders. This was not the case in Smith, and for that reason the court was obliged to examine other reasonably imaginable circumstances in which the challenged law might violate s. 12. If the particular facts of the case do not warrant a finding of gross disproportionality, there may remain another aspect to be examined, namely a Charter challenge or constitutional question as to the validity of a statutory provision on grounds of gross disproportionality as evidenced in reasonable hypothetical circumstances, as opposed to far-fetched or marginally imaginable cases: see generally C. Robertson [sic] "The Judicial Search for Appropriate

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Remedies Under the Charter: The Examples of Overbreadth and Vagueness" in R. Sharpe, Charter Litigation (1987). [60] Taylor J.A. makes the following comment on the Goltz test: It seems to me that these words fall short of excluding the possibility that a minimum sentence might be found constitutionally inapplicable in a particular case, by the application of "constitutional exemption"--that is to say without the provision itself being declared constitutionally invalid.

[61] Taylor J.A. draws a number of conclusions from the relevant case law, in Kumar, as follows: [page 446] From the foregoing discussion of the cases, and on the assumption that constitutional exemption in individual cases is, in appropriate circumstances, an available option, I draw the following conclusions relevant to this case: 1. A statutory minimum sentence of imprisonment for an offence resulting in no actual harm to persons or property will not necessarily offend the Charter, but such a minimum sentence, even for a period of only one or two weeks, may offend s. 12 if imprisonment as a punishment is in itself "grossly disproportionate" to the circumstances of offender and offence. 2. The s. 12 test for "gross disproportionality" is to be applied first with respect to the offender and offence before the court, and then with respect to hypothetical cases which, without proper exercise of prosecutorial discretion, can be foreseen as likely to arise commonly. 3. Where a statutory minimum sentence is found to result in breach of s. 12 in a particular case, and not to be saved by s. 1, it may be open to the court: (a) to declare the provision of no force or effect for all purposes; (b) to declare the provision to be of force and effect only in a particular class of cases, or (c) to declare the provision of no force or effect in respect to the particular case before the court. 4. Where a statutory minimum sentence is provided by the Criminal Code only for a second or subsequent conviction, questions of "fundamental justice" arise under s. 7, because it will be open to the prosecutor to invoke the sentence, or not, as a matter of uncontrolled "prosecutorial discretion". [62] Taylor J.A., then comments on the relationship between ss. 253 and 254 of the Code, and s. 12 of the Charter, pointing to the problem inherent in having the minimum sentence apply only to those drivers who blew over .08 on the breathalyzer:, beginning at page 446:

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Speaking very generally, it must be said that in "normal" circumstances a first conviction under a provincial statute for driving with knowledge that one is prohibited from so doing has to be regarded, if anything, as less serious than a second conviction under the Code for what may be called a "drinking-driving" offence--that is to say impaired driving, driving "over .08" or refusing to provide a sample. An obvious purpose of ss. 253 and 254 is to ensure that when a driver's ability to drive is challenged, because a police officer believes it to be impaired, the matter shall be resolved by a test designated by Parliament rather than by judicial decision, with all [page 447] the difficulties which that question involves as a matter of judgment. The legislative intent is to protect others who use the roads from injury and death. The purpose of the minimum-penalty provision for re-offenders is to deter repeat offences, obviously an important part of the sentencing process. The minimum sentence would be ineffective if applied only to those whose ability could be proved to be "impaired", or "over .08", and not to those who refused to take the test, because if that were so previous offenders suspected of impaired driving would inevitably refuse to take the test. Once it is accepted, as it was by the Supreme Court in Goltz, that the provincial statutory minimum punishment of seven-days imprisonment for a first- offence of driving while prohibited on the basis of a bad driving record is neither "cruel" nor "unusual", it seems, on first impression, that a 14-day minimum sentence for second drinking-driving offenders must also pass the test, and that this will be so even though the second offence is that of refusing to provide a breath sample, rather than of driving while impaired or with a blood-alcohol level in excess of the statutory limit. The mischief resulting from drivers suspected on reasonable grounds of impairment refusing to take the test must surely be regarded "on average" as more serious than that resulting from sober drivers with bad driving records continuing to drive during the period for which their right to do so has been suspended under the provincial statute. Given the decision in Goltz, and recognizing that the minimum term of imprisonment here involved applies only to second offenders, it thus seems unlikely, speaking generally, that the present minimum punishment could be classified as "grossly disproportionate". [63] I note that at page 448, the Court, in Kumar, acknowledges that trivial offences may lead to contraventions of the relevant provisions of the Code: Notwithstanding what I have already said with respect to the relative seriousness of impaired driving and refusing to provide a breath sample on demand, when compared with driving with knowledge of the existence of a prohibition order, a closer examination of the former offences, as they are defined in the Code and the cases, shows, in my view, that they may sometimes be committed without

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exposing the public to any danger at all. The offence defined in s. 253 of the Code includes having "care or control" of a motor vehicle while impaired, as well as operating one, and can be committed without putting a vehicle in motion, or being about to do so. The offence of failing to provide a breath or other sample under s. 254(3) can be committed by a person who has consumed no alcohol at all. [64] In turning to the second stage of the Goltz test, so as to ascertain whether hypothetical circumstances might reveal the minimum sentence to be grossly disproportionate, Taylor J.A.s reasons include the following: I think it entirely possible that a person could be charged with having "care or control", and convicted of that offence, who had not in fact driven a vehicle, and also that a driver who had not had anything to drink that day might refuse to provide a breath sample, and be charged with and convicted of that offence. The latter could result from a mistake by a police officer, acting under the pressure of duty, who found a person at an accident scene displaying the appearance or behaviour characteristic of impairment, when in fact suffering from disability, or from injury or shock caused by the accident. Such a person, acting irrationally or under an erroneous belief that some lawful reason existed for refusing the test, or because perhaps of some culturally-based misconception, might refuse to provide the required sample. Such cases would, however, be rare, even in a province such as ours, where a significant proportion of the driving population consists of those born in countries where there is deep-seated distrust of all involved in law enforcement, and whose reaction in such a situation may, therefore, be quite different from that normally to be expected. If a prosecutor were in such cases to invoke a previous conviction-- particularly one which should be regarded as "stale" or "spent" by effluxion of time and intervening good conduct--the resulting mandatory 14 days' imprisonment would be "grossly disproportionate". Such a punishment in such a case would not relate to the second offence at all, but be more in the nature of a second penalty for the first. Application of the minimum sentence in the remorseless manner which has to be presumed for the present purpose--that is to say without proper exercise of prosecutorial discretion--would result in some convicted persons receiving a sentence sufficiently disproportionate to the circumstances of the case as to violate s. 12. [65] Taylor J.A. then reaches the conclusion that the scheme itself does not breach s. 12 of the Charter: I am not persuaded that there is a likelihood of grossly disproportionate punishment resulting "commonly" under this mandatory minimum sentencing scheme, so as to warrant a finding that the scheme itself breaches s. 12, but I am persuaded that there is ample justification for the application of "constitutional

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exemption" in those particular, perhaps very unusual, cases in which a breach of s. 12 could be shown on application of the "first aspect" test in Goltz.

Section 7 based argument [66] The applicant submits that ss. 254(2), 254(5), 255(1), operating together, offend s. 7. The allegation is that because s. 254(2) offends ss. 8, 9, and 10(b) of the Charter, and requires saving, in each respective case, by s. 1, and because those rights have been consistently recognized by the courts as the foundation rights in the criminal justice system , that . . . legislation that offends these rights cumulatively cannot . . . be in accordance with s. 7. ; applicants written submissions at para. 53. The applicant relies on the case of R. v. Woods (2005) 197 C.C.C. (3d) 253 (S.C.C.) (Woods) in advancing this position, stating that in Woods, the Court held that . . . s. 254(2) does in fact infringe the aforementioned section [i.e., s. 7] and but for the restrictions on time, could not be upheld as constitutional. [67] As pointed out by the crown, a review of the Woods case reveals that the court does not actually consider s. 7 of the Charter. In Woods, the Court refers to decisions including Bernshaw, Grant, and R. v. Dedman (1985), 20 C.C.C. (3d) 97 (S.C.C.), in stipulating, in part, that an approved screening device sample must be demanded immediately, and the sample provided without delay, in order for the sample to be lawfully obtained under s. 254(2). Fish J., for the Court, stipulates, at para. 15 that . . . s. 254(2) authorizes roadside testing for alcohol consumption, under pain of criminal prosecution, in violation of ss. 8, 9, and 10 of the Canadian Charter of Rights and Freedoms. But for its requirement of immediacy, s. 254(2) would not pass constitutional muster. . . .. The bulk of the reasons in the case are directed at the timing element demanded by s. 254(2), in view of the fact that the case revealed a police officer made two ASD demands; one at the at roadside, and the second at the police station, more than one hour later. [68] In any event, Woods provides a relatively recent acknowledgment on the part of the Supreme Court of the relationship between ss. 8, 9 and 10 of the Charter, and s. 254(2) of the Code, in so far as the provision governs the mechanism for the roadside demand. The cumulative effect of the Charter violations and the related s. 1 Charter scrutiny does not appear to be an issue for the Court. [69] As discussed in detail earlier in this Judgment, in Thompson, Morden J.A ( for the Court), dealt with several issues, the second being whether s. 254(5), insofar as it related to s. 254(2), infringed ss. 7, and 10(b), of the Charter, and was thereby, unconstitutional. Ultimately, as to s. 7, the Court, in Thompson, held, that ss. 254(2) and 254(5) did not infringe s. 7, and that s. 10(b) was not infringed beyond what the Supreme Court found in the earlier decision of Thomsen.

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Conclusion [70] It appears that the constitutionality of ss. 254(2) and the punishment for a refusal to provide a roadside breath sample, as contemplated under ss. 254(5) and s. 255(1) of the Code, has been canvassed, either directly or by implication, in a number of Supreme Court of Canada, and Court of Appeal cases. Given the pronouncements of the higher courts on this issue, and the lack of jurisprudence advanced in support of the applicants position, I cannot accede to the arguments of the applicant. [71] The essential elements of the offence having been admitted, the accused is found guilty as charged.

Heard on the 20th day of August, 2007. Dated at the City of Edmonton, Alberta this 1st day of November, 2007.

D.J. Tilley A Judge of the Provincial Court of Alberta Appearances: James E. Stewart and A. Elliot for the Crown R. Kent Haryett for the Accused