R. v. Bartle
92 C.C.C. (3d) 289
The evidence should be excluded under s. 24(2) of the Charter. Admission of the breathalyser tests and the self-incriminatory statement would adversely affect the fairness of the trial. �Where the impugned evidence runs afoul of the "trial fairness" factor, admissibility cannot be saved by resorting to the "seriousness of the violation" factor. The good faith of the police and questions as to the seriousness of the breach, while favouring admission, cannot cure the fact that the admission would render the trial unfair. Notwithstanding the appellant's near admission of guilt and the seriousness of the problem of drunk driving, the evidence should be excluded in the long-term interests of the administration of justice. Section 24(2) must work together with s. 10(b) to ensure that the privilege against self-incrimination and the principle of adjudicative fairness are respected and protected in our criminal justice system.; One of the purposes of s. 10(b) is to provide detainees with an opportunity to make informed choices about their legal rights and obligations. In this case, the admission of the failed breathalyzer results and the self-incriminatory statement would adversely affect the fairness of the trial. It would be speculative on the facts of this case to try and draw any conclusions as to what the accused would have done had he been properly cautioned. (Page 293); The purpose of the right to counsel guaranteed by s. 10(b) of the Charter is to provide detainees with an opportunity to be informed of their rights and obligations under the law and, most importantly, to obtain advice on how to exercise those rights and fulfil those obligations: � ... Accordingly, a person who is ''detained'' within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty (Page 301) To conclude, because the purpose of the right to counsel under s. 10(b) is about providing detainees with meaningful choices, it follows that a detainee should be fully advised of available services before being expected to assert that right, particularly given that subsequent duties on the state are not triggered unless and until a detainee expresses a desire to contact counsel. In my opinion, the purpose of the right to counsel would be defeated if police were only required to advise detainees of the existence and availability of Legal Aid and duty counsel after some triggering assertion of the right by the detainee. (Page 303); Brydges had the effect of adding two new elements to the information component of s. 10(b): (1) information about access to counsel free of charge where an accused meets the prescribed financial criteria set by provincial Legal Aid plans (''Legal Aid''), and (2) information about access to immediate, although temporary legal advice irrespective of financial status (''duty counsel''). (Page 304); The validity of a waiver of a procedural right ''... is dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect...''. This standard applies equally to waivers of Charter rights, including the rights guaranteed by s. 10(b): (Page310); A person who waives the right to be informed of something without knowing what it was that he or she had the right be informed of can hardly be said to be possessed of ''full knowledge'' of his or her rights. (Page 311); The fact that a detainee merely indicates that he knows his rights will not, by itself, provide a reasonable basis for believing that the detainee, in fact, understands their full extent or the means by which they can be implemented. For example, a detainee who states that she knows that she has the right to consult with counsel and who purports to waive her right to be informed of it, might in fact
Arrest for impaired after ALERT failure.Officer read: 1. You have the right to retain and instruct counsel without delay. 2. You have the right to telephone any lawyer you wish. 3. You also have the right to free advice from a Legal Aid lawyer. 4. If charged ... apply to OLAP for legal assistance. No reference made to existence of the 24 hour toll free Legal Aid number printed on the caution card.Did not ask if wanted to call a lawyer "now". Police gave standard secondary caution and breath demand. At station asked if wished to call a lawyer making clear "now". Accused said "no", turned over to breath tech. Breat tech asked if wanted to call a lawyer (no mention of 1-800 number or availability of immediate preliminary legal advice by duty counsel. Accused declined to call a lawyer. 2 breath tests over 80. Accused gave evidence saying thought caution meant could call next business day, refused to call counsel because didn't know who to call, said told breath tech that
Lamer review of purpose of s. 10-(b) at QL p. 11 (IV.) At p. 12 QL: (note timely and comprehensible) "Under these circumstances, it is critical that the information component of the right to counsel be comprehensive in scope and that it be presented by police authorities in a ''timely and comprehensible'' manner: R. v. Dubois (1990), 54 C.C.C. (3d) 166 at p. 190, 74 C.R. (3d) 216,  R.J.Q. 681 (C.A.). Unless they are clearly and fully informed of their rights at the outset, detainees [page302] cannot be expected to make informed choices and decisions about whether or not to contact counsel and, in turn, whether to exercise other rights, such as their right to silence: Hebert. Moreover, in light of the rule that, absent special circumstances indicating that a detainee may not understand the s. 10(b) caution, such as language difficulties or a known or obvious mental disability, police are not required to assure themselves that a detainee fully understands the s. 10(b) caution, it is important that the standard caution given to detainees be as instructive and clear as possible: R. v. Baig (1987), 37 C.C.C. (3d) 181 at p. 183, 45 D.L.R. (4th) 106,  2 S.C.R. 537, and Evans, at p. 305. ... Indeed, the pivotal function of the initial information component under s. 10(b) has already been recognized by this court. For instance, in Evans, McLachlin J., for the majority, stated, at p. 305 that a ''person who does not understand his or her right cannot be expected to assert it''. In that case, it was held that, in circumstances which suggest that a particular detainee may not understand the information being communicated to him or her by state authorities, a mere recitation of the right to counsel will not suffice. Authorities will have to take additional steps to ensure that the detainee comprehends his or her s. 10(b) rights. Likewise, this court has stressed on previous occasions that, before an accused can be said to have waived his or her right to counsel, he or she must be possessed of sufficient information to allow him or her to make an informed choice as regards exercising the right: R. v. Smith (1991), 63 C.C.C. (3d) 313 at pp. 320-4,  1 S.C.R. 714, 4 C.R. (4th) 125, and Brydges, at p. 342."