Constitutional Law – Charter of Rights, Section 10(b)
The accused was charged with operating an aircraft while impaired by alcohol and causing bodily harm to his passenger, contrary to s. 255(2) of the Criminal Code, and operating an aircraft while his blood alcohol level exceeded .08, contrary to s. 255(2.1) of the Code. Prior to trial, the defence brought a Charter application alleging that the accused’s s. 10(b) Charter rights had been breached and requesting that the result of the Intoxilyzer tests be excluded from the evidence under s. 24(2) of the Charter. A blended voir dire and trial was held with the evidence from the former being applied to the latter. The RCMP officer who arrived at the scene of the accident testified that after the accused failed the ASD test, he arrested him on the impaired charge and made a formal demand for breath samples, advised him of his right to counsel, and cautioned him. The accused stated that he wanted to call a lawyer, indicating that he wanted the number of Legal Aid. After arriving at the detachment, the officer placed the accused in an interview room because the telephone in the telephone room was not working. The officer provided him with his personal cell phone so that he could call Legal Aid. In cross-examination, the officer said that he advised the accused that he could have access to resources in order to call any lawyer, but the accused wanted to speak to Legal Aid. The officer left the room but when he saw that the call had ended and that the accused was then speaking on his own cell phone, the officer entered the room and told him to end the call. When he asked the accused if he had received legal advice, he replied: “not much.” The officer testified that he never discussed legal advice with a detainee and that the accused gave the usual response to the question. The accused testified for the purpose of the voir dire only. He stated that the arresting officer had taken him to an interview room and after he had spoken to duty counsel, he called his mother on his cell phone to ask her for the name of the lawyer who had represented him in past family matters. The officer entered the room and told him to end the call. The officer did not provide him with a telephone book, a list of local lawyers or an opportunity to search the internet, although he admitted that he never asked for them, nor did he advise the officer that he wanted to speak to another lawyer or the reason why he called his mother. He also acknowledged that he had received a second police caution from the breath technician before he provided breath samples.
HELD: The application was dismissed. The court found that the accused had not proven on a balance of probabilities that his s. 10(b) Charter right had been violated and there was no need to consider whether to exclude the Intoxilyzer evidence. The officer had met both the informational and implementational duties under s. 10(b). Regarding the implementational duties, the court accepted the officer’s evidence that he had informed the accused about the resources available to him to find a lawyer, despite the fact that he hadn’t recorded it in his notes. It is not a constitutional imperative that failure to provide such resources amounts to a prima facie breach of s. 10(b) of the Charter. The officer had not interfered with the accused’s exercise of the right to counsel when he entered the interview room and the accused had not informed him why he was speaking to his mother. Further, the accused did not clearly express his dissatisfaction with the legal advice he received and there was no obligation on the officer to facilitate a call to another lawyer.