Negotiating Charter Breaches: R v Berger

All throughout the first year of law school, while navigating through different subjects, one of the major challenges is to understand just how a particular area of law fits in the great big jigsaw puzzle that is the Law. Through the last couple of years, the workings of these cogs and mechanisms have slowly started becoming clearer to me, but even more importantly, I have come to realize the exalted position that the Charter holds in Canadian law.

Two years, and many, many more Charter cases later, I never cease to be amazed by the alacrity with which courts seem to negotiate the protection of an individual’s Charter rights, when these are alleged to have been breached. And since most change in law is incremental, I am also constantly amazed by the patience exercised by judges when law enforcement agencies and officials attempt to countermand the legal steps and tests put in place, through what must often seem like the most inane slip-ups.

Naturally, a breach of a Charter right then, is an infringement of an individual’s most basic rights in Canadian law; what is interesting, however, is the struggle the courts face to classify breaches into “more, or less serious” categories, which is something the Alberta Court of Appeal (“ABCA”) did in the recent decision of R v Berger, 2012 ABCA 189 [Berger]. In ruling that the appellant’s s. 10(b) Charter right to be represented by counsel had been breached through the actions of a police officer, the ABCA pointed out that the seriousness of a Charter breach is based not just on extraordinary or dramatic circumstances, but can also happen in the context of more mundane occurrences, such as an officer’s compromising an individual’s right to counsel, while chasing after the gathering of evidence.


Michael Todd Berger, the appellant, was stopped by a traffic officer, who thought that Berger’s ability to drive might have been impaired by alcohol. To test this theory, the officer gave Berger a roadside examination, which he failed. After this, the appellant was arrested, advised of his right to seek a lawyer’s counsel, told that he would need to provide the police office with a breath sample, and taken to the police station. Berger was then left in the designated “phone room” by the officer, after having been provided with the number for a legal aid service, as well as for other lawyers. He tried to contact the legal aid line, and found that it was busy. When the officer entered the room in about 15 minutes, Berger told him that he was still attempting to contact a lawyer, and the officer told him to “[k]eep trying” (para 3). Finally, a frustrated Berger told the officer that he could not get legal advice, inquiring about other options available to him. The latter then told him that he could either continue to try and contact legal aid, or go ahead and provide a breath sample to the officer. What Berger was not told, however, was that he could “hold off” on the sample until he did reach a lawyer (para 4); essentially, this third choice, which was never given to him, was what became the major point of contention in the ABCA’s ruling.

Eventually, Berger did reach counsel, but only after having provided two breath samples to the officer. However, while doing so, he pointedly mentioned that he did not want to waive his s.10(b) right to counsel, but, given the circumstances, didn’t see what else he could do, except provide the officer with the sample. Also, the gathered evidence in the form of the two samples showed the appellant to be in excess of the legal limit allowed, and he was charged with drunk driving.

On appeal to the ABCA, the major issue was whether the breathalyzer evidence that the police officer had gathered from Berger should have been excluded from trial, pursuant to s. 24(2) of the Charter, which states that any evidence that has been collected by infringing on the rights and freedoms of an individual must be excluded from trial. Since the breath samples were already deemed to have been collected by infringing on Berger’s s.10(b) rights (by the Crown’s own admission), the ABCA’s analysis of the case consisted primarily of whether the trial judge should have considered the breath samples to be admissible evidence.


To determine whether evidence should be excluded from trial, the s. 24 vein of inquiry considers the following three factors: (a) the degree of serious of the Charter-infringing conduct, (b) its impact on the appellant’s Charter-protected interests, and c) whether societal interest would be harmed on the evidence’s exclusion (para 10). The ABCA chose not to consider this third arm of the test, choosing instead to focus on the first two.

The ABCA referred to the Supreme Court of Canada rulings in R v Grant, [2009] 2 SCR 353 [Grant] and R v Côté, [2011] 3 SCR 215 [Côté] to determine the level of seriousness of Charter violations by the police and state-enforcement agencies, which ranged from “inadvertent or minor…. to willful or reckless disregard….” Another factor that was considered was good faith on the part of the state’s officer, with deliberateness or intent in conducting the violation on the part of the official being a very strong reason to exclude evidence for being collected improperly.

The case of R v Luong, 2000 ABCA 301 [Luong] established two components of s.10(b) that had to be fulfilled by a state official when detaining an accused. The first is termed the informational component, which is focused around the accused’s being given adequate information of the seriousness of the situation (i.e. that he or she might face legal consequences for the alleged act, that the accused is told of the nature of the offence, is provided with the correct legal information to find a lawyer or seek counsel, and that the accused understands the seriousness of the situation and can speak for him or herself). In Berger, the ABCA deemed that the officer had carried out his duties fulfilling this component satisfactorily, since Berger was told of the offence, was read his rights, and was given the information and opportunity to contact legal counsel (the legal aid phone number and access to the phone room). This component was not found to be at issue, and the officer’s actions were found to be in good faith.

For the second Luong component – the implementational one – to be engaged, the accused should have expressed the desire to seek counsel. In Berger, the appellant’s explicit request for counsel instantly engaged this component. The ABCA did not agree with the Crown’s argument that Berger’s granting of the samples constituted a waiver of his right to request counsel, because he had clearly indicated that the only reason he was granting the sample was because he did not have a choice, since the officer had given him none. Further, the fact that Berger found a lawyer to talk to soon after giving the samples indicated that he had always intended to seek counsel, and this right had not been waived.

The ABCA then held that the officer had “permitted the Charter breach to occur” (para 15), by not letting Berger know that he had the option of holding back the sample until he could reach a lawyer, and by failing to correct Berger’s belief that it was impossible to reach counsel in the circumstances, had “seized the opportunity to gather evidence when it presented itself” (para 3). These actions of the officer could not have deemed to be in good faith, because of their deliberate nature, which, as Grant and Côté had already established, negated considerations of good faith on the part of state officers.

Finally, in determining that the officer had breached Berger’s Charter rights, the ABCA distinguished between an egregious breach and serious one, classifying the one in Berger as the latter. As far as the ABCA was concerned, because the officer could have waited to gain the sample after Berger had spoken to counsel, and because he failed to follow the implementational component properly, he breached Berger’s Charter rights unnecessarily. In other words, because the Charter breach could have been avoided with reasonable due diligence from the officer, his conduct was found to be a serious breach of Berger’s Charter rights.


The ABCA has done two things with this ruling: it has tightened the standard of care that a state official must take, when dealing with an accused’s s. 10(b) rights, and it has also sent the clear message that Charter breaches, even those that are not outrageous or shocking, will be considered serious if they are unnecessary. By making this distinction, the ABCA has upheld the fundamental tenet of our legal system that very little, and nothing else, will be considered a legitimate breach of a Charter right; breaching an individual’s rights then, is to be seemed as a last resort, when other plausible and reasonable avenues of law enforcement have failed. The standard thus remains high, as it should.

The ABCA also raised the question of proper police conduct, and by bringing in the element of intent when considering the officer’s behaviour, the ABCA also emphasizes conscientiousness and due diligence on the part of law enforcement officials – a point that can apparently not be driven home enough.

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