R. v. Oester

[1989] A.J. No. 648



The facts of this case are not in dispute. The accused was observed operating his motor vehicle in a suspicious manner. After investigation, a policeman arrested him, read him his rights and made a demand on him to provide samples of his breath suitable for analysis. Upon arrival at the police station, the accused was asked if he wanted "to call an attorney". In response to this, the accused replied: �And I said no, but I ... be alright if I called a friend, or my boss, or just another person . . ..� The accused did in fact call his boss and spoke to him on the telephone for approximately 2 minutes. The police officer testified that he was present throughout such entire telephone conversation and that the accused was approximately 3 to 5 feet away from him during this time. When questioned why he did not give the accused a private area in which to make his telephone call, the police officer indicated that he did not feel it was necessary to do so. The accused confirmed that the purpose of the call to his boss was to ask his boss whether he should comply with the request made by the police officer to "blow". He stated that he did not call a lawyer because he did not know any lawyers.



Moreover, the fact that the courts have determined that the right to counsel also includes the right to consult counsel in private bolsters the conclusion that counsel should be interpreted so as to apply only to those persons qualified to practise law with whom an accused can establish a solicitor-client relationship. Communications between a solicitor and his client are subject to solicitor-client privilege. In order to protect that privilege, the common law has historically recognized that a person must have the opportunity to consult with his solicitor in private. No such privilege has been found to attach to discussions between an accused and a third party consulted by him who is not a lawyer.



Whether the accused's right to counsel under the Canadian Charter of Rights and Freedoms (Charter) has been violated and if so, whether, as a result, the breathalyzer evidence obtained under the particular circumstances of the subject case should be excluded under s. 24(2) of the Charter.