R. v. Clarke

[1997] N.B.J. No. 154



The accused left a pub in Riverview Mall around midnight on December 13, 1993, intending to walk to his mother's house, some five minutes away. He experienced stomach pains and turned back to the Mall parking lot where he got into his vehicle. He sat in the driver's seat, started the engine, turned on the lights, undid his belt, reclined his seat and fell asleep. At 3:38 a.m., Constable of the RCMP arrived. On awakening the respondent, the officer observed symptoms of impairment and read him the breathalyzer demand and right to counsel address. He was unable to reach counsel of his choice and subsequently decided to contact a duty counsel. After speaking to the lawyer, he agreed to take the breathalyzer test, which revealed an excessive blood alcohol level.



�Care and Control� and �Right to Counsel of the choice of the Accused�



��the mental element involved in these cases is voluntary intoxication. The care and control offence lies not in the intention to drive the vehicle, but in voluntarily becoming intoxicated and in taking some actions by which the offender is involved with the vehicle in a way which may cause danger to the public.� (Para 8), There is no necessity of proving that the offender was posing an immediate danger to the public in order to find him guilty. It is the possibility that the vehicle may be put in motion, intentionally or unintentionally, by a person who is intoxicated, that poses a problem of public safety.� (Para 9), �Once the respondent has availed himself of the services of counsel, he cannot contend that his right to be informed of the right to counsel, pursuant to paragraph 10(b) of the Charter, has been breached so as to exclude the certificate obtained after the breathalyzer test has been performed. Similarly, I do not accept that he can argue that his right to retain counsel of his choice has been breached where he chose to consult alternative counsel, because he was unable to reach counsel of his choice after having made a number of attempts. Mr. Clarke gave a breath sample voluntarily, after speaking to counsel which he called himself; there was no violation of his Charter rights under paragraph 10(b).� (Para 7)