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Difference between revisions of "Motor Vehicle Offences for Drugs and Alcohol (13:IX)"
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Motor Vehicle Offences for Drugs and Alcohol (13:IX) (view source)
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In some cases, a reasonable excuse has been held to include the right to first consult with a lawyer in private. Where an accused chooses to exercise the right to retain counsel, the police officer must provide him or her with a reasonable opportunity to retain and instruct counsel: ''R v Elgie'' (1987), 48 MVR 103 (BCCA); ''R v Manninen'', [1987] 1 SCR 1233. If the police officer does not inform the driver of his or her right to retain and instruct counsel (''Charter'' s 10(b)), the breath or blood sample, if given, may be excluded from evidence if admitting it “would bring the administration of justice into disrepute” (''Charter'' s 24(2)). | In some cases, a reasonable excuse has been held to include the right to first consult with a lawyer in private. Where an accused chooses to exercise the right to retain counsel, the police officer must provide him or her with a reasonable opportunity to retain and instruct counsel: ''R v Elgie'' (1987), 48 MVR 103 (BCCA); ''R v Manninen'', [1987] 1 SCR 1233. If the police officer does not inform the driver of his or her right to retain and instruct counsel (''Charter'' s 10(b)), the breath or blood sample, if given, may be excluded from evidence if admitting it “would bring the administration of justice into disrepute” (''Charter'' s 24(2)). | ||
As with all ''Charter'' rights, the right to retain counsel is subject to reasonable limits prescribed by law and demonstrably justified in a free and democratic society: ''R v Orbanski and Elias'', [2005] 2 SCR 3. The Court in ''Thomsen v R'' (1988) 63 | As with all ''Charter'' rights, the right to retain counsel is subject to reasonable limits prescribed by law and demonstrably justified in a free and democratic society: ''R v Orbanski and Elias'', [2005] 2 SCR 3. The Court in ''Thomsen v R'' (1988) 63 CR (3d) 1 held that “[w]hile a demand for a breath sample into a screening device constitutes a detention under s 10 of the ''Charter'', the suspension of the accused's ability to implement the right to retain and instruct counsel until arrival at the detachment for breath testing [under s 254(3)] is a reasonable limitation on the exercise of that right”. | ||
The length of time constituting a sufficient and reasonable opportunity for an accused to exercise the right to retain and instruct counsel will depend on the circumstances of each case. An otherwise short period of time may not be unreasonable due to the behaviour and attitude of the individual under investigation by the police. Police officers are always mindful of the fact that they must take a breath sample within two hours of the time the offence was allegedly committed (''R v Dupray'', (1987), 46 MVR (2d) 39 (BC Co Ct)). | The length of time constituting a sufficient and reasonable opportunity for an accused to exercise the right to retain and instruct counsel will depend on the circumstances of each case. An otherwise short period of time may not be unreasonable due to the behaviour and attitude of the individual under investigation by the police. Police officers are always mindful of the fact that they must take a breath sample within two hours of the time the offence was allegedly committed (''R v Dupray'', (1987), 46 MVR (2d) 39 (BC Co Ct)). | ||