Ontario Criminal

Charter of Rights

Officer cavalierly violated accused’s right to counsel

Trial of accused for driving with blood alcohol level above legal limit. Accused applied to exclude breath test evidence because his right to counsel was violated. Police officer stopped accused to determine if he had been drinking. Once accused admitted that he had, officer administered roadside screening test that accused failed. Accused was arrested for driving over .08 and he was informed of his right to counsel. He told officer that he did not have lawyer but he accepted officer’s offer to call lawyer for him. Upon arrival at station officer again advised accused of his right to counsel. He asked accused if he understood what he said and if he wanted lawyer but he did not note accused’s response. Only thing officer noted was that accused waived his right to counsel. Officer admitted that accused changed his mind and that he did not properly explain right to counsel to accused. Crown admitted that it could not prove that accused unequivocally waived his right to counsel and right to counsel was therefore violated. Accused acquitted. Officer cavalierly violated accused’s right to counsel. Breath test evidence had to be excluded because admitting it would bring administration of justice into disrepute.

R. v. Spurrell (Sep. 17, 2012, Ont. C.J., R.G. Selkirk J., File No. 12-0368) 103 W.C.B. (2d) 623.

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