Osgoode Hall Law Journal

Article 5
Volume 5, Number 1 (April 1967)

O'Connor v. the Queen, (1966) S.C.R. 619

Brian Donnelly

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Commentary

Citation Information
Donnelly, Brian. "O'Connor v. the Queen, (1966) S.C.R. 619." Osgoode Hall Law Journal 5.1 (1967) : 54-60.
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 OSGOODE HALL LAW JOURNAL [VOL. 5

CIVIL RIGHTS
O'Connorv. The Queen, [1966] S.C.R. 619.
CRIMINAL LAW-"FULL ANSWER AND DEFENSE"-CIVIL RIGHTS-RIGHT
TO COUNSEL.
In recent years, Canadian courts have consistently held that an
accused's right to counsel is confined to his trial.' He may often re-
ceive legal assistance but he cannot count on it. This situation exists
despite the fact the Canadian Bill of Rights2 provides:
S. 2... no law of Canada shall be construed or applied so as to
(c) deprive a person who has been arrestedor detained
(i) of the right to be informed promptly of the reason for his arrest
or detention
(ii) of the right to retain and instruct counsel without delay.
An opportunity to examine and interpret this section arose in the
recent Ontario case of O'Connor v. The Queen. O'Connor, while driv-
ing his car, was stopped by a policeman, placed under arrest for im-
paired driving and escorted to a police station. Two breathalyser
tests were administered, the results of which were sufficient to convict
under normal circumstances. 3 O'Connor was not told that he was
under arrest until the tests had been taken and he was being placed
in a cell for the night. At that time he requested permission to contact
his solicitor and was permitted to make a single telephone call. When
informed his solicitor was away, he requested permission to make
another call to obtain counsel. This time the police refused. At trial
in Magistrate's Court, O'Connor 4was convicted of impaired driving
under s. 223 of the Criminal Code.
On appeal to the High Court,5 Haines, J. ruled that the breath-
alyser tests should be excluded from the evidence. Roach J.A. in the
1 P. v. Steeves, [1964] 1 C.C.C. 266, 42 D.L.R. (2d) 335 (N.S. S.C.), R?. v.
Gull, [1965] 3 C.C.C. 123 (Man. C.A.), and R. v. Piper, (1965) 51 D.L.R. (2d)
534 (Man. C.A.) went so far as to hold that the trial judge need not inform
the accused of his right to counsel at trial. R. v. Gray, (1962) 132 C.C.C. 337
(B.C. Co. Ct.) did hold that a suspect had the right to counsel during interro-
gation once he requests it but there is no duty on the police to inform him of
that right.
2 8-9 Elizabeth II, Chapter 44.
3 The results of these tests were recorded as 2.0 per thousand blood
alcohol and 1.9 per thousand blood alcohol. 1.5 is sufficient to convict under
normal circumstances.
4 S. 223 reads: Everyone who, while his ability to drive a motor vehicle
is impaired by alcohol or a drug, drives or has the care or control of a motor
vehicle, whether it is in motion or not, is guilty of an indictable offence or an
offence punishable on summary conviction.
5 [1965] 1 O.R. 360, 48 D.L.R. (2d) 110. The appeal arose by way of stated
case and the Magistrate submitted these questions for the judgment of the
court:
(1) Was it right in holding that the refusal by the police to allow the accused
while under arrest to contact a lawyer did not amount to a denial to the
accused to make his full answer and defense?
(2) Was it right in holding that the refusal by the police to allow the accused
while under arrest to contact a lawyer did not amount to a denial of
natural justice?
(3) Was it right in convicting the accused under the circumstances when it
found as a fact, that he, while under arrest, had been denied the right to
contact a lawyer?
Haines, J. in effect, answered each of these questions in the negative.
1967] Case Comment

Ontario Court of Appeal 6 reversed the decision and restored the con-
7
viction. An appeal to the Supreme Court of Canada failed.
As treated by each of these courts, the case involves three main
issues. First, was there a denial of the accused's right to make a full
answer and defense under s. 709 of the Criminal Code? Secondly, was
the accused's right to retain and instruct counsel denied under s. 2(c)
(ii) of the Canadian Bill of Rights? Thirdly, if there was an infringe-
ment of either or both of these rights, should the accused be acquitted?
S. 709 () of the Criminal Code reads:
The prosecution is entitled personally to conduct his case, and the defend-
ant is entitled to make his full answer and defense.
Haines J. in the High Court of Ontario held that the refusal by
the police to permit O'Connor to obtain counsel was a denial of natural
justice and a denial of his right to make a full answer and defense.
He was of the opinion that the accused has the right to know the
case against him and to confront that case with evidence adduced on
his behalf. The right to counsel was requisite. Both the Court of
Appeal and the Supreme Court of Canada agreed that the operation
of s. 709 is confined to the trial of the accused. Neither court gave
reasons for this interpretation of s. 709.
Mr. Justice Haines in the High Court expressed the view that it
was the early participation of counsel which lends some reality to the
concept of confrontation between the accused and the state. Implicit
in his view is the idea that the need for counsel is as important at
the interrogation stage as it is at the trial. This opinion was expressed
in Regina v. Gray8 and is the basis of recent decisions of the United
States Supreme Court.9 Since there is a need for counsel at the interro-
gation stage, should not s. 709 of the Criminal Code be interpreted
as being applicable to pre-trial events? To say that an accused can
make a full answer and defense at trial despite the fact he has had
rights abrogated, abridged or infringed during interrogation is a con-
tradiction in terms. The Supreme Court of Canada has given these
words a narrow and restricted meaning, which, it is submitted, is
wrong.
In deciding the case, Haines J. made reference solely to the con-
duct of the police in denying to the accused the right to retain and
instruct counsel without delay. There was a denial of the right to
confrontation at a crucial stage of the criminal process. He was of
6 [19651 2 O.R. 773, 52 D.L.R. (2d) 106. Roach, J.A. held the accused did
have an opportunity to make his "full answer and defense" since this phrase
relates only to trial proceedings and that the denial of right to counsel did
not affect the admissibility of the breathalyser tests. Porter C.3.0. and
MacKay J.A. concurred.
7 Ritchie J. delivered the main judgment. Taschereau C.J.C., Fauteux
and Hall JJ. concurred. Spence J. delivered a brief judgment agreeing in
result with Ritchie J. but confining his opinion to the questions submitted by
the Magistrate.
8 (1962) 132 C.C.C. 337. (B.C. Co. Ct.).
9 Massiahz v. U.S., 377 U.S. 201 (1963); Escobedo 'V. Iflinoi., 378 U.S. 478
(1964); Mirandav. State of Arizona, 86 S. Ct. 1602 (1966).
 OSGOODE HALL LAW JOURNAL (VOL.5
the opinion that had O'Connor been able to retain counsel, the latter
may have discovered a defect in the breathalyser apparatus, some
physical disability, or requested the taking of a blood test which
may have provided some other explanation than the impairment by
alcohol.' 0 Ritchie J. in the Supreme Court of Canada dismissed this
argument by stating that the facts did not suggest the presence of
coinsel after the tests were administered, would have resulted in
ascertaining any factors affecting the admissibility of this evidence.
This statement is undoubtedly correct. However, the point is that such
a discovery would certainly affect the weight to be given to the
breathalyser tests. By providing an alternative explanation of the
accused's impairment, the validity of the test results would be ques-
tioned, leaving the trier of fact to choose between the alternatives.
One could argue then that the accused should be acquitted, not be-
cause the results of the breathalyser tests are inadmissible but due
to the fact he may have been deprived of the opportunity to present
some other explanation.
Ritchie J. also held that it is immaterial that the absence of his
lawyer deprived O'Connor of his right to refuse to take the tests
since s. 224(3)" of the Criminal Code permits the admissibility of
such tests notwithstanding failure to warn the accused of that right.
The learned judge then relies on the case of Attorney General of
Quebec v. Begin12 as establishing the proposition that illegally obtain-
ed evidence is admissible.
In effect, the O'Connor case decided that the right to counsel
commences at trial. It did leave open the possibility that where an
accused is not told of the charge against him and the trial court finds
he would have made efforts to obtain counsel had he been informed
of the charge, any evidence obtained before he is told may be inad-
10 48 D.L.R. (2d) 110, at 116-117.
11 S. 224 (3) reads: In any proceeding under S. 222 or 223, the result of
a chemical analysis of a sample of the blood, urine, breath or other bodily
substance of a person may be admitted in evidence on the issue whether that
person was intoxicated or under the influence of a narcotic drug or whether
his ability to drive was impaired by alcohol or a drug, notwithstanding that
he was not, before he gave the sample, warned that he need not give the
sample or that the results of the analysis of the sample might be used in
evidence.
12 [19553 5 D.L.R. 394, 112 C.C.C. 209. The issue was whether blood tests
were admissible as evidence of drinking. The accused did consent so there
was no problem of illegally obtained evidence. Therefore, the statement that
illegally obtained evidence, if relevant, is admissible as long as it is voluntary
is obiter and it was open to the court in O'Connorto re-examine the Canadian
position on this matter. Secondly, H. W. Arthurs in Civil Liberties Vol. 1,
No. 2, October 1965, points out that Begin was decided five years before the
Bill of Rights was enacted. He then suggested that the requirement of "due
process" should be read into Canadian criminal procedure. Section 1(a) reads:
"... the right of the individual to life, liberty, security of the person and
enjoyment of property, and the right not to be deprived thereof except by
due process of law." One could argue that since O'Connor was not warned
of his right not to take the tests that the conviction was not by due process
of law. For an illustration of how the courts have dealt with this matter see
Regina v. Martin, (1961) 35 C.R. 276, at 289-291.
19671 Case Comment

missible on the ground he was deprived of his right to counsel. That

13
inference was not drawn by the Magistrate in this case.
Finally, does the denial of the right to counsel permit the acquittal
of the accused? Haines J. in the High Court stated that Parliament
obviously intended that an abuse of the system of criminal justice 14
nullifies the proceedings. Relying on a dictum in Regina v. Steeves,
Ritchie J. flatly rejects this contention.
The denial of the right to counsel before trial is not a ground for
quashing a conviction. The remedies of an accused who is denied
counsel during interrogation may be civil' s or criminal. 6 A civil suit
is hardly comforting to a man serving a prison sentence nor is it
likely to eradicate illegal and unfair police practices. A criminal
prosecution of the one who infringed the accused's right to counsel,
if stringently enforced (and it is most unlikely that it would be)
is more satisfactory since it might act as a deterrent to reduce the
number of instances of illegal police practices, but it is not as satis-
factory as the American position.

The United States Supreme Court has recognized certain basic

legal rights which our Canadian courts have not considered. The Sixth
Amendment to the Constitution of the United States reads:
In all criminal prosecutions the accused shall enjoy the right.., to have
the assistance of counsel for his defense.
13 57 D.L.R. (2d) 123, at 131, per Spence, J.: "There may well be cases
where the same failure to warn the accused that he is under arrest and to
state the charge against him results in the obtaining of evidence which could
not otherwise have been obtained. It is not my view that we are in any way
bound in the consideration of such cases by the result in the present appeal."
14 42 D.L.R. (2d) 335 (N.S.S.C.), [19641 1 C.C.C. 266. In relying on the
Steeves dictum, Ritchie J. indicates concern that a guilty person may be ac-
quitted. At page 127 of the report, he quotes from the judgment of flsley C.J.
in the Steeves case: "Reflection on the consequences of such a rule, if it were
to exist in, for example, the case of capital murder will indicate, I think, that
the relevant provision of the Canadian Bill of Rights cannot mean that."
15 Coffin J. in Regina v. Steeves, [1964] 1 C.C.C. 266, suggests the accused
might have a civil remedy. At 279-280 he refers to a number of cases which
discussed such a remedy. They include Commerford v. Board of School
Commissions of Halifax, [1950] 2 D.L.R. 207; Fry v. W. H. ,Schwartz & Sons
Ltd., [19513 2 D.L.R. 198; Bevins v. Walker Stores Ltd., [1952] O.R. 205,
[1952] 2 D.L.R. 142; Koechlin v. Waugh and Hamilton, [1957] O.W.N. 245,
118 C.C.C. 24, 11 D.L.R. (2d) 447. However, Haines J. in the High Court
rejected the suggestion of a civil remedy since Parliament has no right to
confer a civil cause of action. He relies on Transport Oil Ltd. v. Imperial Oil
Ltd., [1935] 2 D.L.R. 500, and Gordon v. Imperial Tobacco Sales Co., [1939]
O.R. 122, [1939] 2 D.L.R. 27, in support of these statements. He also referred
to the note on Transport Oil Ltd. in (1941) 19 CAN. BAR REv. 51.
16 Coffin J. also discusses the possibility of a criminal remedy under s. 107
of the Criminal Code. See page 279 of the report. For a discussion of this topic
see TARNOPOLSKY, W. S., ThE CANADIAN BILL op RIGHTS (Toronto: Carswell,
1966), 180-181. It is highly unlikely that such a remedy exists at the present
time.
 OSGOODE HALL LAW JOURNAL [VOL,. 5

The courts have interpreted this to mean that an accused has

the right to counsel at the interrogation stage of a criminal proceed-
ing. A recent case 17 established that a suspect must be told he has the
right to the presence of a lawyer prior to any questioning. The remedy
for failure to comply with this is acquittal.
At this point, it might be useful to compare the wording of s.
2 (c) (ii) of the Canadian Bill of Rights with that of the Sixth Amend-
ment.
S. 2 (c) of the Bill of Rights states that a person who is "arrested
or detained" shall not be deprived of the right to counsel. The words
"arrested and detained" can only evidence an intention on the part
of Parliament to insure that the right to counsel would be available
immediately upon arrest or detention. This view is fortified by the
concluding words "without delay".
The Sixth Amendment, on the other hand, commences with the
words: "In all criminal prosecutions". This phrase suggests that the
right to counsel be confined to trial for it is there that an accused is
"prosecuted". It is noteworthy that the word "proceeding" is not used.
It would encompass every stage of the criminal process. However, it
was not employed and there is no mention of a pre-trial stage now
that the right to counsel is to be made available "without delay". Yet
American law recognizes the accused's right to counsel before he is
asked a single question.
A comparison of the two sections leads one to observe that the
Canadian provision lends itself more readily to the American interpre-
tation than does the Sixth Amendment itself. Why the Canadian
interpretation has not developed in the American tradition is difficult
to understand.
If the right to counsel is confined to trial, can the adversary
system properly function? This system is alleged to begin when a
person is deprived of his freedom in any way, but frustrated unless
the suspect is allowed legal advice. The interrogatory stage is weight-
ed heavily in favour of the police and a suspect is usually defenseless
without a lawyer. The presence of counsel would insure that the
accused is informed of his rights and by obtaining the facts earlier
counsel can take advantage of fresh leads and assess the strength of
the Crown's case, thus enabling him to prepare a better defense. Only
when the accused has this right can the adversary system be said to
exist prior to trial. Also, the presence of counsel would be the most
complete safeguard against abusive techniques of interrogation.18
Finally, with counsel present earlier in the criminal proceeding, there
should be a great reduction in the number of accused who plead
"guilty". The resulting increase in the number of cases that get to
trial, will allow more people to make a "full answer and defense"
17 Mirandav. Arizona, 86 S. Ct. 1602 (1966).
18 This is the basis of Chief Justice Warren's majority opinion in Miranda.
Most of his judgment discussed the need to eradicate unfair, illegal and
brutal police practices.
1967] Case Comment

and to have "a fair hearing in accordance with the principles of

fundamental justice" as provided by s. 2 (e) of the Bill of Rights. 19
The main objection to the American position is the possibility
of unwarranted acquittals resulting from restricted techniques of
interrogation. Directly opposed to this argument is the existence of
widespread abuses of police power. Do we want a society where
police are permitted to break one law in order to enforce another?
Surely, there must be a point where law enforcement submits to
human dignity. Is it too much to expect that the police obey the law
while enforcing it? Liberty may be as much endangered from illegal
20
methods used to convict as from the actual criminals themselves.
CONCLUSION
It is submitted that once an accused requests permission to con-
tact counsel he should be given that opportunity. If he is refused
permission then he should be acquitted. The words of the Bill of
Rights do not provide that the suspect has the right to the presence
of counsel but only that he has a right "to retain and instruct counsel
without delay". For the reasons given above, it is preferable that
counsel be present during interrogation. However, at the very least,
once legal assistance is requested, no more should be done until the
accused has been able to contact his lawyer for advice. Only then
will s. 2 (c) (ii) of the Bill of Rights have any meaning and only then
can it be said that the accused has had a fair hearing and has been
able to make his full answer and defense.
The problem raised in O'Connor will require an attempt by the
courts to achieve a balance between effective enforcement of the law
and protection of the individual from arbitrary or unfair police prac-
tices. It is clear that the United States Supreme Court considers the
civil rights of an individual more important than the occasional ac-
quittal of a guilty person. It is submitted that the Canadian position
should be similar and it is regrettable that the Supreme Court of
Canada has passed up this opportunity to achieve that end. In light
of present day police practices, the same opportunity will probably
arise in the near future. At that time it is hoped the court will re-
examine the relevant provisions of the Bill of Rights and give them
a meaning more in accordance with their wording, 21
the intentions of
the framers, and the human values of our society.
::
BRiAN DONNELLY.
19 For discussion of this whole field see (1965) 53 CAts. L. Rv. 337,
(1961) 45 VUNw. L. REv. 693, 44 Ky. L.J. 103, (1963) 48 MINN. L. REV. 1.
See also Escobedo v. Illinois, 378 U.S. 478, at 488-489 and Law Society of Upper
Canada, SPECIAL LEcTURES, 1963, at 57.
20 See Jackson v. Denno, 378 U.S. 368, at 385-386, (1964).
21 There may be hope that the Supreme Court of Canada will yet recog-
nize the right to counsel during the interrogation stage of a criminal pro.
ceeding. If O'Connor had been denied counsel before the breathalyser tests
were administered the court might have come to a different result. Spence J.
in limiting his judgment to the questions submitted by the Magistrate seems
to indicate there may be situations where such a right to counsel will be
recognized.
Brian Donnelly, B.A., B.Comm. (Sir George Williams University, Mont-
real), is a second year student at Osgoode Hall Law School.