R. v. Therens  1 S.C.R. 613: The violation of the respondent's rights is not the result of the operation of the law but of the police action. No need to consider in this case whether, the "breathalyzer scheme" is a reasonable limit to one's rights under the Charter
Whether respondent's right to counsel subject, by virtue of s. 235(1) of the Code, to a limit prescribed by law.
Respondent lost control of his motor vehicle and it collided with a tree. A police officer demanded respondent provide samples of his breath for analysis pursuant to s. 235(1) of the Criminal Code. Respondent accompanied the officer to the police station, complied with the demand, and was subsequently charged with driving a motor vehicle while having an excessive blood alcohol level contrary to s. 236(1) of the Code. At trial, respondent's counsel objected to the admission of the certificate of analysis and applied, pursuant to s. 24 of the Charter, (page 614) for its exclusion on the ground that he had been denied the right, guaranteed by s. 10(b) of the Charter, to be informed, upon arrest or detention, of his right to retain and instruct counsel without delay.
Per Beetz, Estey, Chouinard and Wilson JJ.: The Court is not concerned with s. 1 of the Charter because Parliament, in s. 235(1) of the Code, has not purported to limit respondent's right under s. 10(b) of the Charter. Section 1 subjects all Charter rights, including s. 10, "only to such reasonable limits prescribed by law...." Here the limit on the respondent's right to consult counsel was imposed by the conduct of the police officers and not by Parliament.
Per Dickson C.J. and McIntyre and Le Dain JJ.: Section 235(1) of the Code does not purport to place a limitation on the right to counsel. A s. 235(1) demand must be made "forthwith or as soon as practicable" and the person to whom the demand is made must provide a breath sample "then or as soon thereafter as is practicable". The two-hour operating requirement imposed by s. 237(1)(b)(ii) does not preclude any contact at all with counsel prior to the breathalyser test. When detained because of a s. 235(1) demand, the right to be informed of the right to retain and instruct counsel without delay is not, therefore, subject to a limit prescribed by law within the meaning of s. 1 of the Charter.
Per Lamer J.: The violation of the respondent's rights is not the result of the operation of the law but of the police action. Therefore, there is no need to consider in this case whether, under s. 1 of the Charter, the (page 616) "breathalyzer scheme" set up through s. 235(1) and s. 237 of the Criminal Code is a reasonable limit to one's rights under the Charter.
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