Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Charter of Rights and Freedoms — Criminal law — Motor vehicles — Impaired driving or driving over the legal limit — Roadside screening test — Failing or refusing to provide breath sample — Accused convicted of failing to comply with demand made to him to provide sample for analysis by approved screening device under s. 254(2) of Criminal Code — In circumstances where contact with counsel is feasible without meaningfully delaying provision of sample, whether right to counsel under s. 10(b) of Charter is lawfully suspended — Whether refusal to comply with s. 254(2) demand is admissible as evidence of guilt — Whether accused is required to decide whether to comply with s. 254(3) demand and therefore, to provide sample forthwith, in advance of consulting counsel — Whether accused’s right to counsel was breached — Criminal Code, R.S.C., 1985, c. C-46, s. 254(2).

The applicant, Mr. Caswell, was convicted of failing without lawful excuse to comply with a demand made to him as a motorist by a police officer to provide a breath sample suitable for analysis by an approved screening device, under s. 254(2) of the Criminal Code. When the officer made the screening device demand, Mr. Caswell told the officer that he would not provide a sample before he spoke to his lawyer. Mr. Caswell had a cell phone with him but was told by the officer to leave it in the car. The roadside device was brought to the scene within minutes of Mr. Caswell being stopped. The officer told him repeatedly that he would not be able to speak to a lawyer until after he had performed the screening test. At trial, Mr. Caswell argued that his s. 10(b) Charter right to counsel was breached. The trial judge, however, found no breach. She concluded that the inability to consult with a lawyer prior to taking the screening test was not a reasonable excuse for not providing a sample. A summary conviction appeal judge agreed, as did a unanimous Court of Appeal.