R. v. Hogan, (1974) 2 N.R. 343 (SCC)

• Judge: Fauteux, C.J.C., Abbott, Martland, Judson, Ritchie, Spence, Pigeon, Laskin and Dickson, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 22, 1973
• Jurisdiction: Canada (Federal)
• Citations: (1974), 2 N.R. 343 (SCC);48 DLR (3d) 427;18 CCC (2d) 65;[1975] 2 SCR 574;9 NSR (2d) 145;2 NR 343;1974 CanLII 185 (SCC)

R. v. Hogan (1974), 2 N.R. 343 (SCC)

MLB headnote and full text

R. v. Hogan

Indexed As: R. v. Hogan

Supreme Court of Canada

Fauteux, C.J.C., Abbott, Martland, Judson, Ritchie, Spence, Pigeon, Laskin and Dickson, JJ.

June 12, 1974.

Summary:

This case arose out of a charge of driving a motor vehicle with a blood alcohol content in excess of that prescribed by s. 236 of the Criminal Code. The accused was denied the right to consult with counsel before a breath sample was taken, contrary to s. 2(c)(ii) of the Canadian Bill of Rights. The accused was convicted after trial in the Provincial Magistrate's Court. On appeal to the County Court by way of trial de novo the appeal was dismissed and the conviction was affirmed. On appeal to the Appeal Division of the Nova Scotia Supreme Court the appeal was dismissed and the conviction was affirmed - see 5 N.S.R.(2d) 73.

On appeal to the Supreme Court of Canada the appeal was dismissed and the conviction was affirmed.

The Supreme Court of Canada stated that the evidence derived from the breath sample was admissible notwithstanding the breach of the Canadian Bill of Rights. The Supreme Court of Canada refused to adopt a rule of absolute exclusion of all evidence obtained under the circumstances where one of the provisions of the Canadian Bill of Rights has been violated - see paragraph 16.

Laskin and Spence, JJ., dissenting, in the Supreme Court of Canada, would have allowed the appeal and would have quashed the conviction because of the breach by police of the Canadian Bill of Rights. Laskin, J., stated that constitutional guarantees against illegal police activity can best be vindicated by excluding evidence obtained through such invasions - see paragraph 41. Laskin, J., stated that the admission of illegally obtained evidence supports the philosophy of the end justifying the means - see paragraph 42. Spence, J., stated that the demand for a breath sample authorized by s. 237 of the Criminal Code must be interpreted to mean a lawful demand and that a demand which breaches the Canadian Bill of Rights is not a lawful demand - see paragraph 46.

Evidence - Topic 7554

Competency of evidence - Breach of the Canadian Bill of Rights - Denial to an accused of the right to counsel - Charge of impaired driving - Demand for a breath sample - The accused was denied the right to consult with counsel before a breath sample was taken - The Supreme Court of Canada held that the evidence derived from the breath sample was admissible notwithstanding the breach of the Canadian Bill of Rights.

Civil Rights - Topic 4610

Right to counsel - Charge of impaired driving - Demand for a breath sample - The accused was denied the right to consult with counsel before a breath sample was taken - The Supreme Court of Canada held that the breach of Canadian Bill of Rights did not render inadmissible evidence of the blood alcohol content of the accused.

Criminal Law - Topic 1379

Motor vehicles - Impaired driving - Breathalyzer - Admissibility of evidence of blood alcohol content - The accused was denied the right to consult with counsel before a breath sample was taken - The Supreme Court of Canada held that the evidence of the blood alcohol content of the accused was admissible notwithstanding the breach of the Canadian Bill of Rights.

Cases Noticed:

Brownridge v. The Queen, [1972] S.C.R. 926, dist. [para. 9]; folld. [para. 24].

R. v. Wray, [1971] S.C.R. 272, folld. [paras. 13, 38].

Mapp v. Ohio (1961), 367 U.S. 643, dist. [para. 16]; folld. [para. 40].

R. v. Drybones, [1970] S.C.R. 282, folld. [paras. 17, 31].

King v. The Queen, [1969] 1 A.C. 304, folld. [para. 18].

R. v. Steeves, [1964] 1 C.C.C. 266, not folld. [para. 32].

O'Connor v. The Queen, [1966] S.C.R. 619, dist. [para. 32].

Kuruma v. The Queen, [1955] A.C. 167, folld. [para. 37].

R. v. Doyle (1886), 12 O.R. 347, folld. [para. 38].

People v. Defore (1926), 242 N.Y. 13, refd to. [para. 38].

Weeks v. U.S. (1914), 232 U.S. 383, folld. [para. 40].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 235 [para. 3]; sect. 237(1) [para. 2].

Canadian Bill of Rights, R.S.C. 1970, app. III, sect. 2(c)(ii) [para. 8].

Counsel:

R.B. Duplak and R.L. Weldon, for the appellant;

G. Stewart, for the respondent.

This appeal was heard by the Supreme Court of Canada on November 22, 1973. Judgment was delivered June 12, 1974, and the following reasons for judgment were filed:

RITCHIE, J. - see paragraphs 1 to 21;

PIGEON, J. - see paragraph 22;

LASKIN, J. - see paragraphs 23 to 45;

SPENCE, J. - see paragraphs 46 and 47.

FAUTEUX, C.J.C., ABBOTT, MARTLAND, JUDSON, and DICKSON, JJ., concurred with RITCHIE, J.