2,734
edits
Difference between revisions of "Motor Vehicle Offences for Drugs and Alcohol (13:IX)"
From Clicklaw Wikibooks
Motor Vehicle Offences for Drugs and Alcohol (13:IX) (view source)
Revision as of 18:46, 20 September 2022
, 18:46, 20 September 2022→2. Refusing to Provide a Sample
| Line 158: | Line 158: | ||
:'''NOTE:''' '''Providing a breath sample is not a voluntary procedure''': the peace officer demands the sample. The driver may refuse only if they have a “reasonable excuse”. | :'''NOTE:''' '''Providing a breath sample is not a voluntary procedure''': the peace officer demands the sample. The driver may refuse only if they have a “reasonable excuse”. | ||
In some cases, a reasonable excuse has been held to include the right to first consult with a lawyer in private before providing the sample. This only applies when the driver is taken to the police station or medical facility for testing (not to roadside breathalyzer tests/mandatory demands). Where an accused chooses to exercise the right to retain counsel, the police officer must provide them with a reasonable opportunity to retain and instruct counsel, like | In some cases, a reasonable excuse has been held to include the right to first consult with a lawyer in private before providing the sample. This only applies when the driver is taken to the police station or medical facility for testing (not to roadside breathalyzer tests/mandatory demands). Where an accused chooses to exercise the right to retain counsel, the police officer must provide them with a reasonable opportunity to retain and instruct counsel, like offering them a phone to use: ''[http://canlii.ca/t/22kmf R v Elgie]'' (1987), 48 MVR 103 (BCCA); ''[http://canlii.ca/t/1ftmx R v Manninen]'', [1987] 1 SCR 1233. The officer must refrain from attempting to elicit evidence until the detainee has been offered this opportunity. If the police officer does not inform the driver of their 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: ''[http://canlii.ca/t/1l0b0 R v Orbanski and Elias]'', [2005] 2 SCR 3. The Court in ''[http://canlii.ca/t/1ftg5 R v Thomsen]'' (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 is a reasonable limitation on the exercise of that right”. | 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: ''[http://canlii.ca/t/1l0b0 R v Orbanski and Elias]'', [2005] 2 SCR 3. The Court in ''[http://canlii.ca/t/1ftg5 R v Thomsen]'' (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 is a reasonable limitation on the exercise of that right”. | ||
