The Quest for Meaning in Charter Adjudication: Comment on
R. v. Therens
Dennis R. Klinck*
The author discusses the recent Supreme Court
decision on the application of sections 10(b)
and 24 of the Canadian Charter ofRights and
Freedoms. Focusing on the reasoning used to
resolve the controversial issues in the case,
the author examines certain assumptions that
seem to underlie the Court’s approach to
interpretation and argument. It is evident in
these early days that the Supreme Court has
not yet developed a coherent theory of Charter
interpretation, but cases such as R. v. Ther-
ens indicate areas in which development might
occur.
L’auteur commente la dcision r~cente de ]a
Cour supreme concemant l’application du sous-
paragraphe 10(b) et de l’article 24 de ]a Charte
canadienne des droits et libertls A l’obtention
de la preuve en vue de l’analyse d’un 6chan-
tillon d’haleine pr6vu au paragraphe 235(1)
du Code criminel. Dans cette perspective,
‘auteur examine les pr6misses sur lesquelles
Ia Cour semble fonder son 6tude de cette
question. M~me s’il est 6vident que la Cour
supreme n’a pas, A ce jour, d~velopp6 une
th~orie coh~rente d’interpretation de la Charte,
des arr~ts comme R. c. Therens indiquent des
domaines dans lesquels un tel d6veloppe-
ment pourrait se r~aliser.
*Of the Faculty of Law, McGill University.
@MeGill Law Journal 1985
Revue de droit de McGill
1985]
CHRONIQUE DE JURISPRUDENCE
I.
Introduction
R. v. Therens’ is the Supreme Court of Canada’s first pronouncement
on a matter that has been much litigated 2 since the advent of the Canadian
Charter of Rights and Freedoms3 : the exclusion of evidence as a remedy,
under section 24, for persons who have submitted to a breathalyzer test
without being accorded their paragraph 10(b) right to retain and instruct
counsel or to be advised of their right to do so. This case involved subsection
235(1) of the Criminal Code4 which empowers a peace officer to demand,
](1985), 59 N.R. 122, [1985] 4 W.W.R. 286, 45 C.R. (3d) 97 [hereinafter Therens cited to
N.R.].
2See, e.g., R. v. Rahn (1985), 59 N.R. 144, 38 Alta L.R. (2d) 97, 45 C.R. (3d) 134 and R. v.
Trask (1985), 59 N.R. 145, 45 C.R. (3d) 137 decided by the Supreme Court of Canada on the
same day as Therens. In the Alberta Court of Appeal decision in R. v. Rahn (1984), 50 Alta
R. 43 at 45, 11 C.C.C. (3d) 152, Laycraft J.A. noted that, “[d]uring the research for this decision
a computer review showed more than one hundred cases affecting it and reaching a variety of
results”.
a1art I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.IC), 1982,
c. 11 [hereinafter the Charter]. Section 24 of the Charter states:
(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been
infringed or denied may apply to a court of competent jurisdiction to obtain such
remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence
was obtained in a manner that infringed or denied any rights or freedoms guar-
anteed by this Charter, the evidence shall be excluded if it is established that,
having regard to all the circumstances, the admission of it in the proceedings
would bring the administration of justice into disrepute.
Section 10 states:
Everyone has the right on arrest or detention …
(b) to retain and instruct counsel without delay and to be informed of that right
4R.S.C. 1970, c. C-34, as am. Criminal Law Amendment Act, 1975, S.C. 1974-75-76, c. 93.
Subsection 235(1) states:
Where a peace officer on reasonable and probable grounds believes that a person
is committing, or at any time within the preceding two hours has committed, an
offence under section 234 or 236, he may, by demand made to that person forthwith
or as soon as practicable, require him to provide then or as soon thereafter as is
practicable such samples of his breath as in the opinion of a qualified technician
referred to in subsection 237(6) are necessary to enable a proper analysis to be made
in order to determine the proportion, if any, of alcohol in his blood, and to accom-
pany the peace officer for the purpose of enabling such samples to be taken.
Subsection 234.1(1) states:
Where a peace officer reasonably suspects that a person who is driving a motor
vehicle or who has the care or control of a motor vehicle, whether it is in motion
or not, has alcohol in his body, he may, by demand made to that person, require
him to provide forthwith such a sample of his breath as in the opinion of the peace
officer is necessary to enable a proper analysis of his breath to be made by means
of an approved road-side screening device and, where necessary, to accompany the
peace officer for the purpose of enabling such a sample of his breath to be taken.
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“forthwith or as soon as practicable”, that a suspect provide, “then or as
soon thereafter as is practicable”, the requisite breath samples. The section
also authorizes the officer to demand that the person “accompany the peace
officer for the purpose of enabling such samples to be taken”. Related issues
arise under subsection 234.1(1), although, as we shall see, the argument has
been made that subsection 234.1(1) involves different considerations.
Five of the eight Justices5 who took part in the decision in Therens
wrote opinions. 6 It is useful at the outset to summarize their positions on
the main issues in the case:
1. Were the accused’s rights under paragraph 10(b) infringed? Since there
was no question that Mr Therens was neither given the opportunity to retain
and instruct counsel nor advised of his right to do so, the focus of this issue
was whether there had been a “detention” that would bring section 10 into
play. All of the Justices agreed that there had been a “detention”.
2. May section 1 of the Charter be used to justify the infringement of the
accused’s rights? The court held unanimously that section 1 could not be
invoked in the circumstances of this case.
3. Is the remedy of the exclusion of evidence exhaustively provided for in
subsection 24(2), or is it available pursuant to subsection 24(1)? On this
question, Dickson C.J.C. and Lamer J. explicitly said that they were re-
maining agnostic for the time being. Estey J.’s position, presumably accepted
by Beetz, Chouinard and Wilson JJ., strikes one initially as rather ambig-
uous. His statement, “because s. 24(2) … operates to exclude the evidence
thereby obtained, s. 24(1) … need not be invoked”, 7 might be taken to imply
that he simply felt it unnecessary to consider subsection 24(1). Shortly after,
however, he explicitly agreed with Le Dain J. that the admissibility of evi-
dence “falls to be determined by s. 24(2) of the Charter and not by reason
of subs. (1) of that section”.8 Le Dain J., with whom McIntyre J. agreed,
stated unambiguously “that s. 24(2) was intended to be the sole basis for
the exclusion of evidence because of an infringement or a denial of a right
or freedom guaranteed by the Charter”.9 Apparently, therefore, six of the
eight Justices viewed subsection 24(2) as exhaustive, although only Le Dain
and McIntyre JJ. had to consider this issue for their disposition of the case.
5Ritchie J. did not participate in the judgment.
6Those of Dickson CJC. and Mclntyre J. are very brief, amounting basically to bare concurrences.
7Therens, supra, note 1 at 124.
8lbid.
91bid. at 137.
1985]
COMMENTS
4. Was there a sufficient connection between the infringement of the Charter
rights and the obtaining of the impugned evidence to bring subsection 24(2)
into play? All the Justices agreed in finding the necessary connection, al-
though Le Dain and Lamer JJ. differed in their rationalizations of it.
5. Would the admission of the evidence bring the administration of justice
into disrepute? Six Justices – Dickson C.J.C. and Estey, Beetz, Chouinard,
Wilson and Lamer JJ. –
thought that it would. Le Dain and McIntyre JJ.
dissented on this point.
From this summary, it might be said that there was greater consensus
on the issues actually required to determine the case than the apparent
diversity of opinions suggests. Indeed, even on what may be considered the
“ultimate issue” – whether the admission of the evidence would bring the
administration of justice into disrepute –
the dissenting view of Le Dain
J. could be characterized as being based less on any disagreement in principle
with the majority than on his interpretation of the specific factual circum-
stances of the case.
However, the analysis by the Court of the issues before it at this early
stage of Charter adjudication is as interesting as the actual outcome of
Therens. An examination of the reasoning used to resolve the controversial
issues in the case raises many questions about the assumptions underlying
the Court’s approach to interpretation and argument.
II. The Problematical Issues
1.
“Detention”
On this issue we may take Le Dain J. to have spoken for the Court,
since all the other Justices agreed with at least his conclusion that the accused
had been “detained”.
The most formidable obstacle to a finding of detention was Chromiak
v. R., 10 in which the Supreme Court decided unanimously that a person to
whom a demand was made pursuant to subsection 234.1(1) was not “de-
tained” within the meaning of paragraph 2(c) of the Canadian Bill of Rights
which reads, “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 ….
Some provincial courts
of appeal, in dealing with analogous cases under the Charter, have felt bound
10(1979), [1980] 1 S.C.R. 471, 102 D.L.R. (3d) 368, 49 C.C.C. (2d) 257 [hereinafter
Chromiak].
“S.C. 1960, c. 44 reprinted in R.S.C. 1970, App. III [hereinafter the Bill of Rights].
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by the definition of “detained” in Chromiak.12 Other courts, notably the
Saskatchewan Court of Appeal in Therens itself, have decided that Chromiak
was not determinative.’ 3
A “conservative” basis on which Chromiak might be distinguished is
that it dealt with a subsection 234.1(1) situation, which, since it involves
only a demand to provide a breath sample for a roadside screening device,
is arguably less intrusive than a subsection 235(1) demand. This distinction
was in fact made by both the trial judge and by Tallis J.A. in Therens.’4
In the Supreme Court, Estey J. did allow for a possible distinction
between subsection 234.1(1) and subsection 235(1), but the importance he
attaches to this is not clear. He seems to have related the idea of detention
to the delay contemplated by subsection 235(1) “in some circumstances for
the administration of this test”. 15 Unlike subsection 235(1), subsection 234.1(1)
requires that the driver “provide forthwith such sample of his breath” [em-
phasis added], and therefore permits only very brief interference with his
freedom. Whether Estey J. is suggesting that one criterion for “detention”
is the duration of the restraint is not made explicit. The ambiguity is ag-
gravated by the apparent relevancy of the question of delay to the availability
of section 1, a point to which Estey J. alludes in his judgment. 16 Le Dain
J. rejects the notion that Chromiak should be distinguished on the basis of
the difference between subsections 235(1) and 234.1(1):
The fact that a roadside screening test under a s. 234.1 (1) demand is generally
administered in the back of a police car, whereas the breathalyzer test under
a s. 235(1) demand is generally administered in a police station, amounts to
a mere difference of degree in so far as the question of detention is concerned.”
Le Dain J. may be right with respect to these two instances, but his argument
is problematical, even question-begging. The difference, he says, is “merely”
one “of degree”. However, as Glanville Williams has remarked, “in law we
make sharp consequences hang upon … words of gradation”.’ 8 Differences
of degree do matter. The problem is to ascertain when a difference in degree
becomes significant, or what distinguishes it from a difference in kind. Is
‘2See, e.g., R. v. Currie (1983), 56 N.S.R. (2d) 583, 147 D.L.R. (3d) 707, 4 C.C.C. (3d) 217
(S.C. A.D.); R. v. Rahn, supra, note 2; and R. v. Trask (1983), 42 Nfld & P.E.I.R. 30, 150
D.L.R. (3d) 161, 6 C.C.C. (3d) 132 (Nfld C.A.).
13(1983), 23 Sask. R. 81, 148 D.L.R. (3d) 672, 5 C.C.C. (3d) 409 (C.A.), aff’g 70 C.C.C. (2d)
468, 16 M.V.R. 285 (Sask. Prov. Ct).
14Ibid. See also the dissent of Tarnopolsky J.A. in R. v. Simmons (1984), 45 O.R. (2d) 609
at 639-40, 7 D.L.R. (4th) 719, 11 C.C.C. (3d) 193 (C.A.).
“5Therens, supra, note 1 at 124.
161bid.
171bid. at 132.
I8″Language and the Law – II” (1945) 61 L.Q. Rev. 179 at 183.
1985]
CHRONIQUE DE JURISPRUDENCE
Le Dain J. saying that the duration of the holding or the distance that the
citizen is taken out of his way is never significant in identifying “detention”?
Or is he saying only that, as between subsections 234.1(1) and 235(1), these
differences of degree are not significant?’ 9
Rather than resorting to what he views as strained distinctions between
subsections 234.1(1) and 235(1), Le Dain J. prefers a frontal attack. “De-
tention” under the Charter does not mean what it meant (and presumably
still means) under the Bill of Rights. 20
One need not be a philosophical realist 2′ or have a narrowly referential
notion of language22 to be initially taken aback by this approach, and Le
Dain J.’s explanation of his position does not entirely allay the disquiet. He
begins by questioning “the premise that the framers of the Charter must be
presumed to have intended that the words used by it should be given the
meaning which had been given to them by judicial decisions at the time
the Charter was enacted”. 23 Perhaps he is conflating two separate issues in
interpretation: “the framers’ intent” and the “original understanding” of a
word.
As Michael S. Moore has argued,24 there are serious difficulties in using
a speaker’s intent in divining meaning. For one thing, intent is generally
unknown; for another, to use Moore’s terms, while the speaker’s intent may
determine the “speaker’s meaning”, it does not necessarily determine the
“utterance meaning”. 25 It is not clear whether Le Dain J.’s words suggest
that he would defer to “legislative intention” but that the application of the
word “detention” in Chromiak is not the index of that intention, or whether
he is doubting the value of speculating on the framers’ intention. Legislative
intention may thus be a questionable criterion, but that does not answer
the Chromiak issue. Even if we are concerned only with “utterance mean-
ing”, we may still go to the context of linguistic conventions at the time
‘9The problem is illustrated, in another context, by the situation in R. v. Simmons, supra,
note 14. A person going through Canada Customs may simply be asked to declare what he is
bringing into Canada, or he may be told to open his baggage, or he may be subjected to a
search of his person. At what point, if any (see the majority opinion in R. v. Simmons) is he
“detained”?
200ne might even argue that the nominalization of “detained” in the Charter suggests a
restricted application. The connotations of “I am detained at my office” and “I am under
detention at my office” are quite different!
erning the meaning of the word.
21In the sense of believing that there is some independent abstract entity, “detention”, gov-
221n the sense of believing that the meaning of the word “detention” is governed by a closed
class of particulars which it denotes.
23Therens, supra, note 1 at 132.
24″The Semantics of Judging” (1980) 54 S. Cal. L. Rev. 151 at 246ff.
25Ibid. at 248 and 252.
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the utterance (here, section 10 of the Charter) was made. Among these
conventions would be the meaning given to “detention” in analogous legal
contexts. This would be relevant to our ascertaining the “original under-
standing” of “detention”.
A standard criticism of the “original understanding” approach is ex-
emplified by the following:
[W]hatever the common sense of the things included or excluded at the time
the constitutional language was approved, it is not a reasonable construction
of the abstract language to limit it forever to its historic denotations. Matters
of constitutionally relevant and controlling fact and value may evolve so that
applications unimaginable earlier may become reasonable, and earlier appli-
cations may become unreasonable.26
If Le Dain J.’s position implies that he is endorsing this criticism, it is
probably untenable in this case. One can understand the validity of such
observations with respect to constitutional provisions framed a century or
two ago, but Chromiak was decided in 1979 and the Charter came into
effect in 1982. Far from the application in Therens being “unimaginable”
at that time, it is effectively the same as that in Chromiak.
Le Dain J. is in fact saying more than that the “original understanding”
of “detention” no longer obtains: the Chromiak sense of “detention” never
was the understanding in the Charter context. This leaves unanswered the
question as to what was the “original understanding” which would supply
the “utterance meaning”. The implication of Le Dain J.’s position is that
there need not have been any such understanding. He repeats what has by
now become a platitude in Charter interpretation: “By its very nature a
constitutional charter of rights and freedoms must use general language
which is capable of development and adaptation by the courts.”’27 The text
does not have determinate meaning; it is given meaning by the reader. While,
as the growing literature on this issue attests, 28 this is a defensible position,
Le Dain J. leaves its implications unexplored.
A new reading of “detention” is justified in Le Dain J.’s view, not only
by the assumption that constitutional language is less determinate than, say,
26D.A.J. Richards, “Interpretation and Historiography” (1985) 58 S. Cal. L. Rev. 490 at 507.
This is reminiscent of Dickson J. (as he then was) speaking of the Constitution in Hunter v.
Southam Inc. (1984), [1984] 2 S.C.R. 145 at 155, 11 D.L.R. (4th) 641, 14 C.C.C. (3d) 97
[hereinafter Hunter cited to S.C.R.]: “It must.., be capable of growth and development over
time to meet new social, political and historical realities often unimagined by its framers.”
27Therens, supra, note I at 132. For several examples of judicial assertions of the need to
interpret the Charter “liberally”, see S.A. Cohen, “Controversies in Need of Resolution: Some
Threshold Questions Affecting Individual Rights and Police Powers under the Charter” (1984)
16 Ottawa L. Rev. 97 at 99-100.
28See, e.g., the discussions in (1982) 60 Tex. L. Rev. and (1985) 58 S. Cal. L. Rev.
1985]
COMMENTS
statutory language, but also by the status of the Charter, which “must be
regarded, because of its constitutional character as a new affirmation of rights
and freedoms and of judicial power and responsibility in relation to their
protection”. 29 From this new role of the courts, Le Dain J. derives a principle
of interpretation. One might object to changing the meaning of words as a
result of greater formal powers being given to the courts. It is difficult to
deny, however, that courts will and indeed ought to be conservative in their
interpretation of statutes like the Bill of Rights in the face of parliamentary
sovereignty. On the other hand, where they have a constitutional mandate
to invalidate laws, deference to the legislature need not be part of their
theory of interpretation. 30
Two other distinctions drawn by Le Dain J. between the Bill of Rights
and the Charter warrant comment. One is that the grafting of the right to
be informed onto the basic right to counsel “shows the additional impor-
tance which the Charter attaches to the right to counsel”. 3’ This may be.
However, it does not clearly follow that this addition of a right changes the
meaning of “detention”. The second is that, since the Bill of Rights lacks
the equivalent of section 1 of the Charter, courts had to use interpretation
of the rights themselves as a way of imposing “reasonable limits” on their
exercise. Two further points might be made about this. First, it may indicate
that the Supreme Court will be disinclined to limit rights under the Charter
by initially defining them restrictively; rather, the Court may prefer to make
section 1 the focus for considering limitations. It is worth remarking the
effect of this approach in the Therens situation where, as we shall see, section
1 does not apply. Whereas in Chromiak the Court was justified in resorting
to a narrow reading of “detention” to save a reasonable limit on a right,
neither this technique nor section 1 is available in Therens. Second, Le Dain
J. seems to approve the limitations imposed by Chromialc. “The meaning
and application given to the word ‘detained’ in Chromiak was the only
means by which reasonable limits could be placed on the right to counsel.”’32
Does this mean that when a subsection 234.1(1) case comes before the
Supreme Court “detention” may be defined as in Therens, but that the
29 Therens, supra, note 1 at 132.
3There was, of course, no issue of invalidating a law in Therens since, as we shall see in
another context, the time constraints of a s. 235(1) demand are not such as to preclude con-
sultation with counsel as a necessary implication from the statutory provision. This might be
another basis for distinguishing Chromiak: there, since the word “forthwith” in s. 234.1(1)
arguably forecloses the possibility of consulting counsel, a finding of “detention” would have
involved challenging the statute –
the very thing the courts, under the Bill of Rights, were
reluctant to do. One might argue, then, that the reading of “detention” in Chromiak was
distorted by the court’s deference to the will of Parliament –
a consideration doubly absent
from Therens.
3 Therens, supra, note 1 at 133.
32ibid.
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statutory limitation will be found to be reasonable under section 1? Or will
the Court say that what was “reasonable” in the context of the Bill ofRights
(an issue that was not considered in Chromiak) is not the same as what is
reasonable under the Charter?
So far I have focused on Le Dain J.’s concern with why a court is not
bound by Chromiak. This still leaves unresolved the meaning of “detention”
in section 10.
To solve this problem, Le Dain J. adopts the “purposive” approach to
Charter interpretation enunciated by Dickson J., as he then was, in Hunter.33
To understand what paragraph 10(b) means, we must look to its “purpose”.
Again, while it might seem appropriate, this approach too is problematical.
For one thing, as Moore explains, “purpose” has been used in at least five
senses in this context. 34 Most of these involve variants of “intention” and
are subject to the sorts of objections that have already been referred to.35
“‘purpose’ … used to mark the
Moore considers only the fifth sense –
distinction between the function the statute serves (its purpose) and legis-
as a “legitimate inquiry for judges”. 36 To explain this mean-
lative intent” –
ing of “purpose”, Moore uses the analogy of a carburetor: the purpose of a
carburetor is to supply fuel to the engine. To discern this “purpose”, one
need not resort to the designer’s intention or purpose; one can infer the
carburetor’s purpose from observing what it does. The analogy is fragile,
however, because in the case of a statute and especially a constitution, what
it does is determined by the observer (the judge) who purports to be dis-
covering its purpose. Thus, the “purposive approach” tends to be tauto-
logical, and it is therefore not surprising that when Le Dain J. tells us the
purpose of paragraph 10(b) he seems merely to repeat what the paragraph
says: “The purpose of s. 10 … is to ensure that in certain situations a person
is made aware of the right to counsel and is permitted to retain and instruct
counsel without delay.” 37 This, in itself, does not answer the question; it
just reformulates it in terms of “purpose”.
33Supra, note 26 at 156. See also the comment on this case by N. Finkelstein, “Search and
Seizure after Southam” (1985) 63 Can. Bar Rev. 178.
34Supra, note 24 at 262.
35It is not entirely clear from Dickson J.’s language in Hunter, supra, note 26 at 156 and
157 how he understands “purpose”. He says that a “broad, purposive analysis” should be used
to interpret “specific provisions of a constitutional document in the light of its larger objects”,
and that a purpose must be identified for s. 8 of the Charter, e.g., “to delineate the nature of
the interests it is meant to protect”. While such “teleological interpretation” is quite feasible
in relation to provisions which are fairly specific – e.g., s. 23 of the Charteras it was considered
in A.G. Quebec v. Quebec Association of Protestant School Boards (1984), [1984] 2 S.C.R. 66,
10 D.L.R. (4th) 321 [hereinafter cited to S.C.R.] –
I suspect that in the typical “vague”,
“broad” Charter provision, it will always involve speculation.
36Supra, note 24 at 263.
37Therens, supra, note 1 at 134.
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However, Le Dain J. does go on from here and in a sense treats the
situations contemplated by “detention” as co-extensive with the rights spec-
ified in paragraph 10(b). Since paragraph 10(b) protects the right to counsel
and the right to be informed, the situations comprehended by “detention”
are those in which what is protected by paragraph 10(b) might be absent.
“Detention” thus becomes any situation “in which the restraint of liberty
might otherwise effectively prevent access to counsel or induce a person to
assume that he or she is unable to retain and instruct counsel”. 38 The ar-
gument is specious. Suppose, for example, that section 10 did not mention
“detention” at all, but said only “on arrest”: would “arrest” be defined as
any situation in which what is protected by paragraph 10(b) might be absent?
By calling the argument specious, I mean only that Le Dain J.’s definition
is not clearly compelled by any objective purpose in paragraph 10(b); rather,
it is a stipulative definition. 39 This is not, however, to say that the stipulative
definition is not a “reasonable” one.
The breadth of the definition is clear from Le Dain J.’s elaboration. A
person is “detained” not only when he is subjected to physical constraint,
but also when he is subjected to “psychological constraint” – when he has
“a reasonable perception of suspension of freedom of choice”. 40 This is
exemplified by the Therens situation, where a person subject to a demand
perceives himself to have no choice, because refusal to comply carries with
it penal sanctions. 41 In terms of this definition, which emphasizes the sub-
jective apprehension of the individual, presumably a person asked by a
customs officer to open his suitcase would be “detained”; so would a person
who saw the flashing light of a police cruiser behind him. 42 The implication
of Le Dain J.’s position is that section 10 should have a wide scope and
that, having defined “detention” inclusively, courts may resort to section 1
or subsection 24(2) to modify the effects of a breach of rights.
“5Ibid.
39See Moore, supra, note 24 at 242. Moore refers to “theoretical terms [like ‘detention’?]
which seem to hold open the possibility of clear criteria because of the ability to stipulate
definitions for them”.
40Therens, supra, note 1 at 135.
41Le Dain J. would go further and find involuntary constraint –
and hence “detention” –
“even where there is in fact a lack of statutory or common law authority for the demand or
direction and therefore an absence of criminal liability for failure to comply with it”. Ibid.
42S.A. Cohen, “The Impact of Charter Decisions on Police Behaviour” (1984) 39 C.R. (3d)
264 at 272-3, points to the “danger posed by an unduly expansive interpretation” of “deten-
tion”. Citing the Law Reform Commission of Canada, Questioning Suspects (Working Paper
32) (Hull, Que.: Supply & Services, 1980) he suggests that this danger is “the paralysis of law
enforcement”.
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2. The Application of Section 1
An approach which defines “detention” inclusively, or even subjec-
tively, and then shifts the inquiry to section 1 or subsection 24(2) is perhaps
the correct one –
at least if the Charter is to be an instrument of “policy”.
Such an approach recognizes the futility of attempting to find the meaning
of a word like “detention”, as if it described something determinate that
could be isolated simply by applying the right strategy of interpretation.
The approach directs attention away from “sterile disputations” about words
to what is arguably the real issue: the reasonableness of the scope to be given
a constitutional provision. Section 1 especially, but also subsection 24(2),
invites this inquiry; there is now no need, as there might have been in
Chromiak, to define “detention” in such a way as to give reasonable scope
to the guarantees.
Several observations are appropriate here. For one thing, as I have
already intimated, this approach to meaning raises large questions about
the nature of linguistic signification and the generation of authoritative texts.
Furthermore, coupled with this vaguely “deconstructive” attitude toward
the text, one sees the anomalous endeavour of judges to maintain the pre-
tense that they are divining the right meaning.
More particularly in the present context, the approach gives rise to two
comments.
One is a point to which I have alluded: the Court in Therens found
that section 1 was not applicable. As Estey J. says, “[t]he limit on the re-
spondent’s right to counsel was imposed by the conduct of the police officers
and not by Parliament”. 43 Le Dain J. finds that the terms of subsection
235(1) do not expressly limit the right to counsel; nor does a limit arise
implicitly or from the “operating requirements” of subsection 235(l). 44
Therefore, the infringement here was not “prescribed by law”, which is
required before section 1 can apply. What effect does this have on an ap-
proach which emphasizes inquiry into the reasonableness of the scope of a
Charter guarantee? Is that inquiry not foreclosed here? After all, Le Dain
J. has ruled out the interpretation of “detention” as a locus for accom-
modating reasonableness and section 1 is not available. One might think
that Le Dain J. is precluding the inquiry he prescribes. There are, of course,
answers to such a concern. For one, it is quite proper that the scope for
assessing the reasonableness of administrative violations of rights should
be narrower than that for assessing legislative violations. For another, in
43 Therens, supra, note 1 at 124.
44Ibid. at 136.
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any case, a variation on the question of reasonableness may come up in the
context of subsection 24(2).45
The other point has to do with the general relationship between section
1 and subsection 24(2). It is possible to imagine a case involving section
234.1 in which there is, apparently, an implied limit on the paragraph 10(b)
right to counsel. A court would have to consider section 1.46 Suppose the
court found that the limit was not “reasonable”, was not “demonstrably
justifiable in a free and democratic society”. Would this not largely deter-
mine the outcome when subsection 24(2) came to be considered? Would
not the court, in deciding the section 1 issue, have effectively considered
the social values relevant to subsection 24(2)?47 It seems hard to conceive
that the admission of evidence garnered as the result of a violation found
to have been unreasonable or unjustifiable in a free and democratic society
could be said not to bring the administration of justice into disrepute. On
the other hand, as we shall see, it could be argued that the administration
of justice would never be brought into disrepute by the admission of evi-
dence obtained by a police officer doing in good faith only what the law
(albeit “unreasonable”) prescribed.
Perhaps the dubiety –
either that the unreasonableness of a law inev-
itably taints its administration or that any conscientious administration of
even an unreasonable law will be reasonable –
is escapable. But escaping
it will depend upon the making of what may be an unconvincing distinction
between the issues of violation and admission. Thus the difficulties involved
in making distinctions that are “narrowly linguistic” will not necessarily be
obviated by shifting the focus of inquiry to what is broadly “reasonable”.
45But see Estey J.’s approach, infra, note 69 and accompanying text. He seems to say that,
because there was no statutory authority for the violation of the Charter right, not only is s.
1 not available, but the test in s. 24(2) is automatically met.
46See R. v. Talbourdet (1984), 9 D.L.R. (4th) 406, [1984] 3 W.W.R. 525, 12 C.C.C. (3d) 173
(Sask. C.A.). Presumably s. 234.1(1) should not be read as denying (as opposed to limiting)
the s. 10(b) rights –
or, to use the words of the Supreme Court in A.G. Quebec v. Quebec
Association ofProtestant School Boards, supra, note 35 at 88 as “collid[ing] directly” with them,
so as to preclude recourse to s. 1. I take it that “direct collision” must involve a limit that is
more or less co-extensive with the rights themselves –
e.g., if the Criminal Code provided,
“on arrest or detention, there is no right to consult counsel”. In other words, a denial of the
right in circumscribed circumstances would be merely a “limit”.
47S. 24(2) should be distinguished from those provisions (e.g., s. 7 and s. 8) where “reason-
ableness” is part of the definition of the right, and where, therefore, the s. 1 inquiry would
appear to be redundant. The “policy” issue in s. 24(2) –
arises not at the point of defining a right but in relation to the granting of a remedy. Thus,
perhaps a negative finding on s. 1 (presumably the only situation in which a court would have
to move on to s. 24(2)) would not necessarily conclude the s. 24(2) question.
and, for that matter, in s. 24(1) –
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3. The Exclusivity of Subsection 24(2)
As we have seen, the approach taken by Le Dain J. in characterizing
“detention” might be regarded as part of a movement away from what has
been called “dry literalism in Charter interpretation cases”. 48 Although
“literalism” ‘4 9 often connotes narrow or restrictive interpretation, it does
not always have that effect. Paradoxically, “literalism” may in some cir-
cumstances coincide with a broader, more liberal, reading. This seems to
be the case where the relationship between subsections 24(1) and 24(2) is
concerned. 50
The problem arises because subsection 24(1), read literally, empowers
a court to grant any remedy it considers “appropriate and just in the cir-
cumstances”. There is no explicit exception for the exclusion of evidence.
Moreover, subsection 24(2) does not say “evidence shall be excluded only
if…” – which would indicate that subsection 24(2) is exhaustive. Further,
the remedy in subsection 24(2) is mandatory (“shall”) which suggests that,
where an infringement is of a certain kind or of a certain magnitude, a court
has no choice but to exclude the evidence thus obtained. In other circum-
stances, the argument goes, a court may exclude evidence, although it does
not have to. A further peculiarity of section 24, supporting this reading, is
the phrase “in proceedings under subsection (1)” near the beginning of
subsection (2).51 What are these proceedings? Clearly, an application for a
remedy. And, it would seem, an application for the “remedy” of the exclu-
sion of evidence. In the context of what other proceedings would the sub-
section 24(2) remedy arise? One might say then that subsection 24(2) envisages
that an application for the exclusion of evidence has already arisen under
subsection 24(1), and that subsection 24(2) relates to a sub-category of that
remedy as contemplated by subsection 24(1).
Freedoms: What to Do and What Not to Do” (1984) 29 McGill L.J. 521 at 546.
48Y.-M. Morissette, “The Exclusion of Evidence under the Canadian Charter of Rights and
49What those who use “literalism” as a pejorative understand by the term is not always clear
to me. If they mean the paying of attention to accepted meanings of words and the conventions
of syntax, I am not sure what is wrong with this. I suspect that the phenomenon referred to
is rather similar to that described by the more euphemistic “finding the plain grammatical
meaning”, sometimes used even by critics of “literalism”.
50Thus, Morissette, supra, note 48 at 550, describes as a “conceptual jumble produced by
an excess of literalism … the theory according to which section 24(2) created a duty to exclude
evidence, whereas section 24(1) encompasses among other appropriate and just remedies a
discretion to do so”. The trial judge and the majority of the Court of Appeal accepted this
theory in Therens, supra, note 13. As we have seen, Le Dain J. rejected it, and he appears to
have had the agreement of five other Justices.
5sThe phrase has been called “more than a bit ambiguous”: A.A. McLellan & B.P. Elman,
“The Enforcement of the Canadian Charter of Rights and Freedoms: An Analysis of Section
24” (1983) 21 Alta L. Rev. 205 at 238.
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Le Dain J.’s reasoning in rejecting the argument that evidence may be
excluded under subsection 24(1) as well as subsection 24(2) is not irresistible.
It consists largely of assertions: “I am satisfied from the words[52] of s. 24
that s. 24(2) was intended to be the sole basis”; “[ilt is clear, in my opinion,
that … the framers of the Charter intended”; “[i]t is not reasonable to ascribe
to the framers of the Charter an intention”. 53 It is worth noting not only
the conclusory character of these assertions, but also Le Dain J.’s repeated
deference to what he surmises was the framers’ “intention”. This contrasts
rather sharply both with his earlier downplaying of any argument about the
framers’ intention respecting the meaning of “detention”, and with his po-
sition that the courts have to impart meaning to the capacious language of
the Charter.
Of the opening words of subsection 24(2), “[w]here, in proceedings
under subsection (1)”, Le Dain J. says that they “simply refer, in my view,
to an application for relief under s. 24(1). They reinforce the conclusion
that the test set out in s. 24(2) is to be the exhaustive one for the remedy
of exclusion of evidence. ‘ 54 This conclusion is not inescapable. 55 If the
words refer to an application for relief under subsection 24(1), they seem
“simply” to limit the subsection 24(2) remedy to the context of such an
application. However, the fact that the subsection 24(2) remedy arises only
in the context of a subsection 24(1) application does not mean that the scope
of a subsection 24(1) remedy is limited to the terms of subsection 24(2).
Le Dain J. also argues that “[t]he inevitable result of this alternative
test or remedy [subsection 24(1)] would be that s. 24(2) would become a
dead letter”. 56 While the availability of two tests might “generate confu-
sion”,57 and while they might overlap, I doubt that it is “inevitable” that
subsection 24(2) would become a “dead letter”. One can quite easily imagine
a trial judge considering subsection 24(1) and admitting the evidence, and
a court of appeal deciding that he did not have that option because the
circumstances were such that the admission would bring the administration
of justice into disrepute.
While I do not altogether disagree with Le Dain J.’s position, many of
his arguments simply do not convince. His strongest point is the general
one that where specific provision is made for one situation, that situation
is exclusively covered by that provision, and not by some more general
52Does this suggest he is reading the provision “literally”? [emphasis added]
53Therens, supra, note I at 137.
54Ibid. at 138.
55McLelland & Elman, supra, note 51 at 238, follow reasoning similar to that of Le Dain J.
56Therens, supra, note 1 at 138.
57Morissette, supra, note 48 at 550.
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provision. 58 Unfortunately, that does not answer the objection that subsec-
tion 24(2) addresses only part of the specific situation in question. 59 Le Dain
J. declines to examine the legislative history of section 24. He might have
buttressed his position by so doing and by pointing out, for example, as
Morissette does, that the broad exclusionary discretion that would flow from
subsection 24(1) would be “a curious result in a jurisdiction that resisted
for so long any policy of exclusion”. 60 However, this might have involved
getting into the kinds of questions about “original understanding” that Le
Dain J. earlier tried to keep at a distance.
Although the “liberal”, or “literal”, view of subsection 24(1) seems to
have been rejected by the Court in Therens, we may not have seen the last
of it. The reservation of judgment by Dickson C.J.C. and Lamer J. and the
fact that a decision on subsection 24(1) was not necessary for the deter-
mination of the case, may leave room for it to be considered again. If it is,
it merits a more searching examination. 61
4. The Connection Between the Infringement and the Evidence
Before subsection 24(2) applies, the evidence in question must have
been “obtained in a manner that infringed or denied … rights or freedoms
guaranteed by this Charter”. In the words of Le Dain J.,
there must be some connection or relationship between the infringement or
denial of the right or freedom in question and the obtaining of the evidence
the exclusion of which is sought by the application. 62
The problem is what the nature of that connection must be.
As Le Dain J. notes, some courts seem to have required a causal re-
lationship. He cites the judgment of Gushue J.A. in R. v. Traslc.
There is no evidence that the accused had any reasonable excuse to refuse to
provide samples of his breath. If he had been informed of his right to retain
and instruct counsel and had indeed consulted counsel, counsel would have
undoubtedly advised him to provide the samples demanded.63
5SIbid.
59Le Dain J. himself adopts the position, supra, note 1 at 141, that “where a judge concludes
that the admission of evidence would bring the administration of justice into disrepute, he or
she has a duty, not a discretion, to exclude the evidence” [emphasis added].
60Supra, note 48 at 551. See also McLellan & Elman, supra, note 51 at 206-8 and 225-34.
6’Cohen, supra, note 27 at 106, called the Saskatchewan Court of Appeal’s approach to s.
24(1) in relation to s. 24(2) “an attractive argument, powerfully put, which will have to be
squarely confronted by the Supreme Court of Canada in the days ahead”. I am not sure that
it has been.
62Therens, supra, note I at 138.
63Ibid.
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In other words, the denial of the right did not result in the obtaining of the
evidence; it would have been obtained anyway.
There are several responses to this position. One is that, as Morissette
notes, the language of subsection 24(2) does not require causation: it does
not say, for example, evidence obtained “by reason of an infringement”. 64
“obtenus dans les
Moreover, as Le Dain J. observes, the French version –
conditions qui portent atteinte aux droits et libert~s” –
clearly envisages
something broader than causation. Further, Gushue J.A.’s approach sup-
poses an answer to what is in fact the question: we do not know how a
lawyer would have assessed the situation or what advice he would have
given, or how, given that advice, the suspect would have responded. Because
we cannot know what would have been, we cannot say what the relationship
between the violation of the right and the obtaining of the evidence was.
If subsection 24(2) does not require causation, what does it require?
Therens does not give us a clear answer to this question. The position of
Estey J. and those concurring with him is obscure. Although he does not
explicitly discuss the point, he seems to have been thinking in terms of some
variant of causation. Thus, he repeatedly speaks of evidence “thereby ob-
tained”. One supposes that this means “obtained by virtue of the violation”.
But he explains neither the elements constituting the connection required
by subsection 24(2) nor how the facts of Therens satisfy them. He merely
assumes the necessary connection.
Le Dain J. suggests an essentially temporal test: “It is sufficient if the
infringement or denial of the right or freedom has preceded, or occurred in
the course of, the obtaining of the evidence.”‘ 65 Stated thus, the test seems
too broad. One can imagine situations in which the obtaining of evidence
follows or coincides with the infringement of a Charter right that is otherwise
unrelated to the evidence. For example, a Therens situation might occur in
which the suspect was accorded his paragraph 10(b) rights and gave the
breath samples, but while he was doing so one of the police officers searched
his car in violation of his section 8 rights. Should the breathalyzer evidence
come within subsection 24(2)? Le Dain J. seems to say it should. His view,
in his words, “gives adequate recognition of the intrinsic harm that is caused
by a violation of a Charter right or freedom, apart from its bearing on the
obtaining of evidence”. 66 Surely, however, the words “evidence obtained in
a manner that infringed or denied …” imply that the infringement must
have some bearing on the obtaining of evidence.
64Supra, note 48 at 526.
65Therens, supra, note 1 at 138.
66Ibid.
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I prefer Lamer J.’s approach, concurred in by Dickson C.J.C., which,
while not requiring affirmative causation, does require more than a temporal
relationship. Although the statement of his position is not transparently
clear, I infer that the infringement must be found to be a circumstance
capable of affecting the obtaining of the evidence in question. Lamer J.
reaches his position by “giving content” to the paragraph 10(b) rights, in-
cluding finding the imposition of “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”. 67
Although this might appear to be reading rather a lot into paragraph
10(b), it does accord with the Court’s view of “detention” in this case. As
we have seen, Le Dain J. regards detention in this context as involving a
demand plus the apprehension of penal sanctions: this creates the necessary
“constraint”. Here, however, the demand is a demand to give evidence.
Arguably, a “purpose” of paragraph 10(b) is to allow the detainee to question
the validity of his detention. Where, as here, a demand is part of the de-
tention, the detainee has the right to seek legal advice regarding the demand.
Because the demand is a demand to supply evidence, the denial of that right
has an intimate bearing on the obtaining of the evidence. Again, this is not
to say that the obtaining of the evidence must be found positively to have
resulted from the infringement of the right.
5. “Bring the Administration of Justice into Disrepute”
Although there are several difficult issues in Therens, perhaps the most
notorious involves the meaning and application of the test in subsection
24(2): when would the admission of evidence “bring the administration of
justice into disrepute”?
Among the approaches to meaning discussed by Moore are two that
are particularly relevant to the opinions on this issue in Therens –
the
“referential” and the “criterial”. 68 In the referential theory, the meaning of
the word or expression is all the things which it denotes; the method of
“explaining” the term’s meaning is to point to what is denoted by the term.
On the other hand, the criterial approach endeavours to formulate criteria
for the word or expression or, in other words, to define it, and then asks
whether an object or circumstance meets the criteria. The judgments of
Estey J. and Le Dain J., respectively, reflect these different approaches.
67Ibid. at 143.
68Supra, note 24 at 167-70 and 173-5. Moore is critical of both these approaches.
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Estey J. may be said to have spoken for the majority of six on this
issue, 69 but his judgment is rather disappointing. It consists essentially of
an assertion that the test in subsection 24(2) refers to the situation in Ther-
ens, without any attempt to generate criteria for the application of the test.
Indeed, Estey J. explicitly eschews definition:
I am strongly of the view that it would be most improvident for this Court to
expatiate,[ 70] in these early days of life with the Charter of Rights, upon the
meaning of the expression “administration ofjustice” [sic] 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).71
Presumably, when all the situations to which subsection 24(2) refers are
identified, the meaning of the test will be known. In the interim, however,
one problem is, to use Moore’s words, “how does a judge know whether
the thing in front of him is or is not within the extension of the words or
phrase?” 72
Having eschewed a search for criteria, and recognizing this case as
within the reference of subsection 24(2), Estey J. substitutes vigorous as-
sertion of his position for argument. Unfortunately, some of the rhetorical
features of his judgment leave a doubt about the cogency of his reasons. 73
For one thing, Estey J.’s judgment seems to imply that the exclusion
of evidence should follow almost automatically from the violation of a
paragraph 10(b) right. The only indication that something more is required,
as subsection 24(2) ostensibly suggests, is his use of modifiers of the violation
here. Thus, “the police authority has flagrantly violated a Charter right
without any statutory authority for so doing”. 74 The lack of statutory au-
thority forecloses a section 1 inquiry. Does it foreclose a subsection 24(2)
inquiry as well? And what about “flagrantly”? Certainly, as we shall see, Le
Dain J.’s characterization of the facts would hardly justify this adverb. Then,
Estey J. calls the violation “overt”. 75 Would it have been better had it been
“covert”? A feature of the case is that the police apparently acted openly
and in good faith. Further on, Estey J. says, “[t]he violation … of a fun-
damental Charter right, which transpired here, will render this evidence
69Dickson C.J.C. agrees with Lamer J., who agrees with Estey J.
70Note the mildly pejorative connotation of this word.
7’Therens, supra, note I at 1.25.
72Supra, note 24 at 169.
731n M. Gold, “The Rhetoric of Constitutional Argument” (1985) 35 U.T.L.J. 154 at 182, a
review article of P. Bobbit, Constitutional Fate: Theory of the Constitution, Gold makes the
point that the “rhetorical perspective” can “significantly enhance our understanding of the
judicial process”. See also M. Gold, “The Mask of Objectivity: Politics and Rhetoric in the
Supreme Court of Canada” (1985) 7 Sup. Ct L. Rev. 455.
74Therens, supra, note I at 125.
751bid.
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inadmissible”. 76 Here the qualifier is attached not to the violation, but to
the right. What is serious about this case is that a “fundamental Charter
right” has been violated. What makes this right “fundamental” as compared
with other Charter rights? Are they not all, as part of the Constitution,
“fundamental”? Again, Estey J.’s words suggest that the violation of the
right concludes the subsection 24(2) inquiry. However, on the wording of
subsection 24(2), this transmutes a necessary condition into a sufficient
condition.
Another technique that Estey J. uses is argument from consequences.
While this may be quite acceptable where the apprehended consequences
are likely to ensue, here it is questionable. Thus, he says “[t]o do otherwise
than reject this evidence … would be to invite police officers to disregard
Charter rights of the citizen and to do so with an assurance of impunity”. 77
A resolution of this case such as that proposed by Le Dain J. would hardly
have the extreme effect envisaged by Estey J. Moreover, what are we to
make of the word “impunity”? Is the purpose of subsection 24(2) to punish
the police? A potential controversy about the rationale for subsection 24(2)
is embedded in this word.78 Estey J.’s next sentence is similarly alarmist:
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 ad-
missibility 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.79
Here, yet again, we have the implication that the fact that the violation
occurred “without any statutory authority” disposes of the matter. We also
have an assertion, in terms of a metaphor, that paragraph 10(b) would be
“stripped of any meaning” if such evidence were admitted. Once more, as
Le Dain J.’s approach attests, this is simply not the case.
Estey J. concludes: “Admitting this evidence under these circumstances
would clearly ‘bring the administration of justice into disrepute”‘.80 “Clearly”
seems to be used in lieu of reasons here. As James Lindgren has observed,
the kind of “metadiscourse” exemplified by the word “clearly” does have
its place in writing.8′ For example, it may indicate that a point accepted by
everyone is part of the writer’s argument or that the writer considers the
76Ibid.
7″bid.
78See Morissette, supra, note 48 at 534 for some observations on the question whether
“deterrence” is a rationale for s. 24(2).
79Therens, supra, note 1 at 125.
80Ibid. [emphasis added]. Compare Lamer J., ibid. at 143.
81J. Lindgren, “Style Matters: A Review Essay on Legal Writing” (1982) 92 Yale L.J. 161 at
176-8.
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point self-evident and therefore will not try to prove it.82 How Estey J. is
using the word, however, is open to doubt. Perhaps he thinks that he has
proven what he is stating, and that it is now clear, or perhaps he is saying
that he regards the truth of his assertion as self-evident. That nothing is
either proven or self-evident is attested to by the dissent of Le Dain J. and,
even more so, by that of McIntyre J.
I find the opinion of Le Dain J. on this aspect more satisfactory, for
he does try to elaborate reasons.
I mentioned earlier that Le Dain J.’s approach was “criterial”, in the
sense that he attempts to enunciate standards against which to apply the
subsection 24(2) test. This “criterial” approach might in fact take different
forms. One involves simple definition, or perhaps more accurately, refor-
often in terms which are as much in need of
mulation of an expression –
explanation as those in the original. One has to be wary of this process, for
it may involve the dubious assumption that giving something a different
name explains it.83 Another form of the criterial approach is to enumerate
fairly specific factors that should be considered in applying the original
expression. Le Dain J. attends to both variants.
First, he looks at the two definitions of “bring the administration of
justice into disrepute” that have been most prominently proposed in the
Canadian legal context: Lamer J.’s “shocks the community” test, and Estey
J.’s what “would prejudice the public interest in the integrity of the judicial
process”, both asserted in Rothman v. R.84 Le Dain J. in fact prefers not
to endorse either of these reformulations. Citing the words of Howland
C.J.O. in R. v. Simmons,8 5 he says that he agrees “that we should not
substitute for the words of s. 24(2) another expression of the standard drawn
from a different jurisprudential context”. 86
Having said this, he does nevertheless seem to lean towards the Estey
J. reformulation. Thus, for example, he notes that the “community shock”
test appears to be narrower than the other, and he seems to agree with
Howland C.J.O. that the Lamer test is not exhaustive.
Perhaps more important, his approach to determining “disrepute” is
arguably more in accord with the Estey J. approach than with that of Lamer
J. I said above that reformulations such as these may be merely question-
begging, no more transparent than the originals they purport to explain.
82Ibid. at 177-8.
83D. Bolinger, Aspects of Language, 2d ed. (New York: Harcourt Brace Jovanovich, 1975) at
251-2.
84(1981), [1981] 1 S.C.R. 640 at 697 and 649, 121 D.L.R. (3d) 578, 59 C.C.C. (2d) 30.
85Supra, note 14 at 634.
86Therens, supra, note I at 140.
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This may be true of the tests of Estey and Lamer JJ., but there is, aside
from their scope, a significant difference between them. The “shocks the
community” test leads more naturally to the argument that public opinion
should be consulted 7 than does “the public interest in the integrity of the
judicial process”. Admittedly, on one view the notion of “disrepute” does
suggest that it is the public opinion of the administration of justice that is
in issue. Le Dain J. pays some deference to this when he says “[t]he central
concern of s. 24(2) would appear to be the maintenance of respect for and
confidence in the administration of justice”. 88
However, he clearly sees the issue as one that is not to be determined
by attempting to gauge public reaction:
[T]he question whether evidence must be excluded because, having regard to
all the circumstances, its admission would bring the administration of justice
into disrepute is a question of law which may be determined by a court without
evidence of the actual or likely effect of such admission on public opinion. 89
An approach which emphasizes not popular views90 but the “public inter-
est”, in a judicial process which coherently reflects fundamental legal values,
is to be preferred. Such inquiry is properly conducted by those who, one
hopes, are learned in those values and their implications. 91 Thus, although
he expressly declines to adopt either the test of Lamer or Estey JJ., Le Dain
J.’s emphasis is more consistent with the latter.
He explicitly favours the second kind of “criterial” approach to the
meaning of subsection 24(2): what factors are relevant to determining whether
the test is satisfied? The two principal factors are “the relative seriousness
of the constitutional violation” and “the relative seriousness of the criminal
87See D. Gibson, “Determining Disrepute: Opinion Polls and the Canadian Charter of Rights
and Freedoms” (1983) 61 Can. Bar Rev. 377, referred to by Le Dain J. in Therens, ibid. at
141.
8″Therens, ibid. at 140.
891bid.
90Perhaps exemplified by the reaction to Therens of John Bates, president of a group called
People to Reduce Impaired Driving Everywhere, quoted in M. Cernetig, “Drunk-Driving Charges
Threatened by Ruling”, The [Toronto] Globe and Mail (30 May 1985) 1: “We think it’s ab-
solutely disgraceful that they could get off on this type of technicality” [emphasis added].
91See P. Brest, “Who Decides?” (1985) 58 S. Cal. L. Rev. 661 at 665. He cites statistics,
relating to the American context, from H. McCloskey & A. Brill, Dimensions of Tolerance:
What Americans Believe About Civil Liberties (New York: Russell Sage Foundation, 1983)
indicating that, as compared with the public at large, lawyers scored high on an “omnibus civil
liberties” scale. Thus, while only 60 per cent of the general public felt that it was better to let
a guilty person go free than to convict an innocent person, 91 per cent of lawyers held this
opinion.
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charge”. 92 Particularly germane to this case is the issue of the relative se-
riousness of the violation, to which the following sub-factors are relevant:
whether it was committed in good faith, or was inadvertent or of a merely
technical nature, or whether it was deliberate, wilful or flagrant. Another rel-
evant consideration is whether the action which constituted the constitutional
violation was motivated by urgency or necessity to prevent the loss or destruc-
tion of the evidence.93
Le Dain J. regards the denial of the right to counsel in relation to the
integrity of the judicial process as very serious –
in fact, he says it “must
prima facie discredit the administration of justice”. 94 Access to counsel is
itself an integral part of the administration ofjustice. This is a telling point;
it is at least more comprehensible than Estey J.’s enigmatic reference to “a
fundamental Charter right”. At the same time, Le Dain J., I think correctly,
allows that the violation of paragraph 10(b) rights is not conclusive. If it
were, it would, to use Le Dain J.’s words from another context, render the
subsection 24(2) test a “dead letter” in respect of those rights. 95
Here Le Dain J. would have found that the prima facie inference is
rebutted on the basis that the police officer can be taken to have relied in
good faith on the ruling in Chromiak, and was justified in assuming that
Mr Therens did not have the paragraph 10(b) rights. A few observations
might be made about this quite reasonable approach.
In the first place, one might object that it should not matter how the
rights were violated, that the innocence or otherwise of the police should
not figure in the vindication of the individual’s rights. However, subsection
24(2) envisages that, in respect of the particular “remedy” of exclusion of
evidence, the vindication of individual rights is not the sole criterion. Rather,
the “repute” of the administration of justice is the final criterion, and this
justifies a court’s looking at the quality of the behaviour of those enforcing
and administering the law. This is not, however, to say that subsection 24(2)
should be seen as providing sanctions against the police, as Estey J.’s use
of the word “impunity” might suggest.
Another point worth reiterating is that Le Dain J.’s disposition of the
case would have been on very narrow grounds, namely the police officer’s
justifiable understanding of the law in the light of Chromiak. Were the same
case to come up now, even in terms of Le Dain J.’s approach, the evidence
92Therens, supra, note 1 at 140. See also Morissette, supra, note 48 at 528ff.
93Therens, ibid.
94Ibid.
95Ibid. at 141. McIntyre J. states explicitly: “[T]o exclude the questioned evidence in this
case solely on a finding that a Charter right was breached in obtaining it would be to disregard
the provisons of s. 24(2) … . In my view this section must have its effect.”
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would be excluded because there would be no room to say that the police
justifiably believed that the citizen was not “detained” and therefore did
not have the paragraph 10(b) rights.
A further implication of Le Dain J.’s approach is more problematical.
His deference to the belief imputed to the police officers that they were not
in a section 10 situation raises the question, to which I have already alluded,
of the relevance of the ostensible legality of a peace officer’s actions to
deciding the subsection 24(2) issue. In a Therens-like situation, the issue is
reasonably clear-cut: one can either say with Estey J. that there is no statutory
authority; therefore, the administration of justice is brought into disrepute.
Or one can say with Le Dain J. that even though there was no statutory
authorization, we still have to look at other factors, including the peace
officer’s reasonable apprehension of the law.
What result follows from the Le Dain approach where there is statutory
authority, as arguably there is where the case involves subsection 234.1(1)?
Even if it were decided that the subsection 234.1(1) limit was not saved by
section 1, could it ever be said that the admission of evidence would bring
the administration of justice into disrepute where the police officers were
doing precisely what they believed to be legal? The hypothetical can, in fact,
be seen as rather close to Therens: if subsection 234.1(1), in so far as it
directs a breath sample to be taken “forthwith”, thus precluding access to
counsel, were invalid, then the peace officers might be said to have only
ostensible statutory authority. Their action would be based, as in Therens,
only on their reasonable, though mistaken, apprehension of the law. The
Le Dain approach might thus effectively preclude the exclusion of evidence
under subsection 24(2) wherever the police were simply following the leg-
islature’s prescriptions. Perhaps it was this kind of difficulty that impelled
Estey J. to avoid an inquiry such as Le Dain J.’s and simply treat Therens
as a paradigm case.
III. Conclusion
Therens leaves many questions unresolved, of which one category might
be termed “methodological”. It is not clear from Therens that the Supreme
Court has worked out with much sophistication or coherence a theory of
Charter interpretation. I cannot say from Therens what meaning and im-
portance the Court is giving to notions such as “framers’ intention” and
“purpose”. Another category of questions could be labelled “substantive”.
Thus, for example, the majority here decides the case without telling us
1985]
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what the test in subsection 24(2) should be taken to mean. Further, although
they did not have to be answered in Therens, questions of the relation of
subsection 24(2) to section 1 emerge by implication: these may prove in-
transigent when the Court has to deal with them directly.
