R. v. Ell, (1979) 2 Sask.R. 195 (CA)

• Judge: Culliton, C.J.S., Woods and Brownridge, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: October 10, 1979
• Jurisdiction: Saskatchewan
• Citations: (1979), 2 Sask.R. 195 (CA)

R. v. Ell (1979), 2 Sask.R. 195 (CA)

MLB headnote and full text

R. v. Ell

(No. 8169)

Indexed As: R. v. Ell

Saskatchewan Court of Appeal

Culliton, C.J.S., Woods and Brownridge, JJ.A.

October 10, 1979.

Summary:

This case arose out of a charge against the accused of refusal to give a breath sample for analysis in a roadside screening device contrary to s. 234.1 of the Criminal Code of Canada. The accused was stopped on a highway and asked to take a roadside test. The accused refused to take the test on the ground that he wanted first to consult legal counsel. The accused was charged with refusal. The accused was acquitted at trial on the ground that the accused was detained within the meaning of the Canadian Bill of Rights and thus the denial of his request to consult counsel constituted a reasonable excuse for failure to comply with the demand for a breath sample. The Crown appealed to the Saskatchewan Court of Appeal.

The Saskatchewan Court of Appeal allowed the appeal, set aside the acquittal of the accused and ordered the conviction of the accused. The Court of Appeal held that the accused was not detained within the meaning of s. 2(c)(ii) of the Canadian Bill of Rights and had no right to counsel before taking the test.

Civil Rights - Topic 4610

Right to counsel - Demand for breath sample - Roadside screening device - Canadian Bill of Rights, s. 2(c)(ii) - The Saskatchewan Court of Appeal held that a person who is asked (under s. 234.1 of the Criminal Code) to give a breath sample for analysis in a roadside screening device has not been detained within the meaning of s. 2(c)(ii) of the Canadian Bill of Rights and has no right to counsel before taking the test.

Cases Noticed:

R. v. Chromiak, 14 A.R. 22; 42 C.C.C.(2d) 556, folld. [para. 6].

R. v. Murphy 1978, 40 C.R.N.S. 395; 18 Nfld. & P.E.I.R. 266, refd to. [para. 6].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 234.1.

Canadian Bill of Rights, R.S.C. 1970, App. III, sect. 2(c)(ii).

Counsel:

C.R. Quinney, for the Crown appellant;

M.F. Mulatz, for the respondent.

This appeal was heard by CULLITON, C.J.S., WOODS and BROWNRIDGE, JJ.A., of the Saskatchewan Court of Appeal.

The judgment of the Saskatchewan Court of Appeal was delivered by CULLITON, C.J.S., at Regina, Saskatchewan, on October 10, 1979.