R. v. Schmautz

53 C.C.C. (3d) 556



From the decision: "In assessing whether to admit or exclude the evidence of the appellant's refusal to comply with the breathalyzer demand in the instant appeal, it is important to bear in mind the following facts: first, as I have previously mentioned, there existed a factual link between the detention and the right to be informed of the right to counsel. The appellant was told that he was being questioned in [page563] relation to a hit-and-run accident and was soon after detained for him to comply with a breathalyzer demand in relation to his having driven the alleged hit-and-run car. From a factual standpoint, the latter offence is undoubtedly connected to the former. Secondly, it must be noted that the appellant was never physically "detained" by the police officers nor was he taken to police headquarters for questioning. He remained in his own home and was at liberty to contact a lawyer at any time he deemed necessary. He was, in the light of the criteria set out by this court in R. v. Therens, supra, legally "detained" as regards s. 10 of the Charter, but this form of detention is to be contrasted with the physical restraint usually imposed following an arrest. Thirdly, the evidence shows that the police officers acted in good faith throughout the proceedings and never wilfully or knowingly breached the appellant's rights."