The accused telephoned police and indicated that he had struck something or someone on the highway. The police responded and found the body of a pedestrian, which had apparently been struck by the car of the accused. The accused was placed under arrest and advised of his right to �call of lawyer� but was not informed of his right to counsel without delay. The accused was then taken to the police station where he failed the breathalyser test. Even though a telephone was available in the same room as the breathalyser, the use of the telephone was not offered to the accused until after the two tests had been administered. At trail and appeal, both justices found that because the accused was a repeat offender, he should have already know about his right to counsel.
The right to counsel does not depend upon prior knowledge of the accused. The fact that the accused had a prior conviction is not grounds to suspect that the accused has a working knowledge of his rights and therefore does not require his s. 10(b) Charter right. It is the duty of the police to ensure the s. 10(b) rights of the accused are fulfilled.
In this case, the police should have given the accused access to council before administering the breathalyser test. The fact that counsel probably would have told the accused to submit to the breath demand does not negate the right of the accused to consult counsel.