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| R v Therens | |
|---|---|
| Court | Supreme Court of Canada |
| Decided | [1985] 1 S.C.R. 613 |
| Citation(s) | [1985] 1 S.C.R. 613 |
| Case opinions | |
| When a person was detained for the purpose of giving a breath sample under section 235(1) of the Criminal Code, they have the right to consult counsel. Failure to allow this violates the accused's right to retain counsel. | |
R v Therens [1985] 1 S.C.R. 613 is an early Supreme Court of Canada decision on an accused's right to retain and instruct counsel without delay under section 10(b) of the Canadian Charter of Rights and Freedoms. The Court held that when a person was detained for the purpose of giving a breath sample under section 235(1) of the Criminal Code, they have the right to consult counsel. Since the police did not allow the accused to do so, they violated the accused's right to retain counsel. The Court ruled that the evidence was properly excluded.
Therens had been driving drunk and collided with a tree. At the scene of the accident a police officer made a demand for a breath sample for analysis and required Therens to accompany the office to the police station to take a breathalyzer test. As a result of the test, he was charged with driving with a blood alcohol level above 80 milligrams of alcohol in 100 millilitres of blood.
At trial, Therens applied to have the evidence of the breathalyzer excluded. He argued that the failure of the police to allow him to consult counsel at the police station infringed his right to be informed, upon arrest or detention, of his right to retain and instruct counsel without delay, as guaranteed by under section 10(b) of the Charter. The evidence therefore should be excluded under section 24(2) of the Charter.
The trial judge accepted that argument, excluded the evidence, and acquitted. The Saskatchewan Court of Appeal upheld the acquittal. The Crown then appealed to the Supreme Court of Canada.
The Supreme Court observed that detention can arise from a reasonable perception of the detainee, stating “most citizens are not aware of the precise limits of police authority“. It is reasonable that a person could “assume lawful authority and comply with the demand“ believing it to be a detention. Since Therens was detained, the police were required under s. 10(b) to permit him to consult counsel. Failing to do so was a breach of his right to counsel, warranting exclusion of the breathalyzer certificate under s. 24(2).
| | This article about Canadian law is a stub. You can help Wikipedia by expanding it. |
The right to silence is a legal principle which guarantees any individual the right to refuse to answer questions from law enforcement officers or court officials. It is a legal right recognized, explicitly or by convention, in many of the world's legal systems.
Section 10 of the Canadian Charter of Rights and Freedoms specifies rights upon arrest or detention, including the rights to consult a lawyer and the right to habeas corpus. As a part of a broader range of legal rights guaranteed by the Charter, section 10 rights may be limited by the Oakes test and/or the notwithstanding clause. However, section 10 has also spawned considerable litigation, and has made an impact in numerous cases.
R v Collins [1987] 1 S.C.R. 265 1987 SCC 11 is a leading decision of the Supreme Court of Canada on section 8 and was a leading case on section 24(2) of the Constitution Act, 1982 which allowed for the exclusion of evidence upon infringing the Charter. The Collins test for section 24(2) was developed for determining if the administration of justice was brought into disrepute by the inclusion of the evidence. The test was later replaced in R. v. Grant.
R v Stillman [1997] 1 SCR 607, 1997 SCC 32 was a leading decision of the Supreme Court of Canada on section 24(2) of the Constitution of Canada which allowed for the exclusion of evidence that is obtained in a manner that infringes the Charter. The two-step Stillman test was developed for determining whether the admission of evidence that was obtained through a breach of a Charter right would affect the fairness of the trial. The issue of trial fairness comes into play when applying the first step of the Collins test to exclude evidence under section 24(2).
Section 8 of the Canadian Charter of Rights and Freedoms protects against unreasonable search and seizure. This right provides those in Canada with their primary source of constitutionally enforced privacy rights against unreasonable intrusion from the state. Typically, this protects personal information that can be obtained through searching someone in pat-down, entering someone's property or surveillance.
R v Manninen [1987] 1 S.C.R. 1233 is a leading Supreme Court of Canada decision on an accused Charter right to retain and instruct a lawyer as well as the right to silence.
R v Brydges, [1990] 1 S.C.R. 190 is a leading Supreme Court of Canada decision on the right to retain and instruct counsel under section 10(b) of the Canadian Charter of Rights and Freedoms. The Court held that the right imposed a duty upon the police to provide information and access to a legal aid lawyer if needed. From this case came the term "Brydges Counsel" to refer to legal aid lawyers that assist recently arrested individuals.
R v Bartle, [1994] 3 SCR 173 is a leading Supreme Court of Canada decision on the right to retain and instruct counsel under section 10(b) of the Canadian Charter of Rights and Freedoms ("Charter"). The Court held that a police officer is required to hold off on his or her investigation upon arresting an individual until the detainee has been informed of his or her rights and given sufficient information and access to contact a private lawyer or duty counsel. The case applied the earlier Supreme Court of Canada decision R v Brydges. The judgment was released with three other decisions: R v Pozniak, R v Harper, R v Matheson and R v Prosper.
R v Prosper, [1994] 3 S.C.R. 236 is a decision of the Supreme Court of Canada on the right to duty counsel upon arrest or detainment by police under section 10(b) of the Canadian Charter of Rights and Freedoms. The Court found that merely reading the accused his or her rights is insufficient to discharge the right to counsel; the police must also provide the accused with access to legal aid or duty counsel.
R v Dersch, [1993] 3 S.C.R. 768 is a leading Supreme Court of Canada decision on the right against unreasonable search and seizure under section 8 of the Canadian Charter of Rights and Freedoms. The Court held that sharing of personal information of patients, such as blood test results, between health care professionals or law enforcement violates section 8 of the Charter and should be excluded under section 24(2).
Clarkson v R, [1986] 1 S.C.R. 383 is a leading Supreme Court of Canada decision on the right to retain and instruct counsel under section 10(b) of the Canadian Charter of Rights and Freedoms. The Court held that in order for an accused to waive their right to retain and instruct counsel they must be clear and unequivocal, and the accused must be aware of the consequences of the waiver.
R v Ladouceur, [1990] 1 S.C.R. 1257 is a leading decision of the Supreme Court of Canada on the constitutionality of random police traffic checks. The Court found that the random checks violated the right not to be arbitrarily detained or imprisoned under section 9 of the Canadian Charter of Rights and Freedoms. However, the violation was saved under section 1 as it was a valid form of deterrence for a pressing problem of traffic safety.
R v Latimer, [1997] 1 SCR 217, was a decision by the Supreme Court of Canada in the controversial case of Robert Latimer, a Saskatchewan farmer convicted of murdering his disabled daughter Tracy. The case involved consideration of arbitrary detention under section 9 of the Canadian Charter of Rights and Freedoms and rights to an explanation for detention and rights to counsel under section 10. The Supreme Court ultimately overturned Latimer's conviction due to the Crown's improper actions at the jury selection stage. As a result, the decision was the first given by the Supreme Court in the Latimer case, the second being R v Latimer on cruel and unusual punishment under section 12 of the Charter.
Duke v R [1972] S.C.R. 917 was a decision by the Supreme Court of Canada on the Canadian Bill of Rights, concerning the right of an accused to make full answer and defence to a criminal charge.
R v Grant, 2009 SCC 32 is a leading decision of the Supreme Court of Canada on section 9, section 10 and section 24(2) of the Canadian Charter of Rights and Freedoms ("Charter"). The Court created a number of factors to consider when determining whether a person had been detained for the purpose of sections 9 and 10 of the Charter. The Court also created a new test for determining whether evidence obtained by a Charter breach should be excluded under section 24(2) of the Charter, replacing the Collins test.
Impaired driving is the term used in Canada to describe the criminal offence of operating, having care or the control of a motor vehicle while the person's ability to operate the motor vehicle is impaired by alcohol or a drug. Impaired driving is punishable under multiple offences in the Criminal Code, with greater penalties depending on the harm caused by the impaired driving. It can also result in various types of driver's licence suspensions.
R v Kang-Brown, [2008] 1 S.C.R. 456, 2008 SCC 18, is a constitutional decision by the Supreme Court of Canada on the limits of police powers for search and seizure. The Court found that police do not have the right to perform a sniffer-dog search of public spaces when such search is not specifically authorized by statute. In this case, a suspect's section 8 rights under the Canadian Charter of Rights and Freedoms ("Charter") were violated when a police officer stopped him at a bus station and sniffer-dog searched his bag finding drugs in his possession.
R v AM, [2008] 1 S.C.R. 569, 2008 SCC 19, is a constitutional decision by the Supreme Court of Canada on the limits of police powers for search and seizure. The Court found that police do not have the right to perform a sniffer-dog search of public spaces when such search is not specifically authorized by statute. In this case, a student's section 8 rights under the Canadian Charter of Rights and Freedoms ("Charter") were violated when a police officer sniffer-dog searched his unattended backpack in the gymnasium of his school finding drugs in his possession.
R v M (MR), [1998] 3 SCR 393 is a leading decision of the Supreme Court of Canada on search and seizure by teachers and principals in Canadian schools (not colleges or universities). In this case, a student's section 8 rights under the Canadian Charter of Rights and Freedoms ("Charter") were not violated by being searched by a school principal with a police constable present.
R v Cook, [1998] 2 SCR 597, is a leading Charter decision of the Supreme Court of Canada. The Court held that Canadian police located in the United States were still subject to the Charter when interrogating a suspect for a murder in Canada.