Published On: Oct 17,2016
We represented an individual that was charged with Impaired Driving, Over-80, and Dangerous Driving under the Criminal Code of Canada. A number of defences were raised prior to trial through an application under the Canadian Charter of Rights and Freedoms, namely:
The video footage of the alleged incident had been destroyed or was not used in this investigation against the within accused person. Our office sought judicial a stay of proceedings based on a breach of his/her right to fair trial under sections 7 and 24(1) of the Charter for the destruction of evidence or the failure to collect and preserve relevant evidence as the case may be or the exclusion of evidence under section 24(2);
The failure of the Lethbridge Police Service to adhere to Section 8 and 9 of the Charter, the “Forthwith” requirement under Section 254(2) of the Code given the fifteen (15) minute delay at the road-side prior to the administration of the Approved Screening Device (“ASD”). It was posited by the defence that the impugned delay constituted a Charter breach resulting in a section 8 and 10(b) violation. It was argued that the exception to 10(b) as articulated by the Supreme Court of Canada in v. Thomsen, infra, had no application to the case at bar. In R. v. Cote, 1992 CarswellOnt 68 (OCA), the court stated: “Where a demand is made within the terms of s. 254(2) of the Criminal Code, there is a constitutionally permissible limitation on the right to counsel guaranteed by s. 10(b) of the Charter. However, if the police officer making the demand for a breath sample does not comply with the requirements of the section, including that the sample be taken forthwith, the demand does not constitute a demand made under the authority and there is no obligation to comply.” Given these circumstances, it was posited, in the Charter Notice, that the right to counsel at the road-side did arise as a result of the intervening delay. There was no reason for the police officer to delay reading the road-side demand. Our client did not contribute to this delay. This delay would have afforded our a “realistic opportunity” to consult; and receive advise from counsel, if the accused was advised of the same by the police. The accused did have access to a cell phone and would have exercised his 10(b) rights, if the informational component were evinced at the road-side; and
Finally, we advanced the argument that our client’s rights to counsel were violated under Section 10(b) of the Charter, given his equivocated responses to the police when asked if he wanted to speak to lawyer; and the officer’s failure to provide our client with a waiver of his rights prior to proceeding with the collection of the evidentiary breath samples as required by the seminal case of Regina v. Prosper,  3 SCR 236, where the stated:
“Courts must ensure that the right to counsel is not too easily waived. An additional informational obligation on police is triggered once a detainee, who has previously asserted this right, indicates a change of mind and no longer wants legal advice. The police must at this point tell the detainee of the right to a reasonable opportunity to contact counsel and of the obligation on the part of the police to hold off during this period. Any indication of a change of mind must be clear and the burden of establishing an unequivocal waiver is on the Crown. The waiver must be free and voluntary and must not be the product of either direct or indirect compulsion. The standard required for an effective waiver of counsel is very high. A person who waives a right must know what is being given up if the waiver is to be valid. The s. 10(b) right to counsel, however, must not be turned into an obligation on detainees to seek the advice of a lawyer.”
In light of the first argument raised in the Charter Notice, the Crown Prosecutor, with good reason, invited the Court to acquit our client of all charges against him on the Information before the Court on the day of trial. For a consultation, call Mr. J. S. Patel at 403-585-1960.