R. v. Schnarr

[1995] O.J. no. 3183

Facts

ON GD

The accused was stopped by police and arrested for impaired driving. He was properly advised of his right to counsel and was given a s. 254(2) demand. The accused advised police that he wanted to contact his lawyer. Police attempted to contact the lawyer of the accused several times and failed. The lawyers home phone number was acquired by police from the local phone book but was found to be out of service. Later testimony revealed that the police were using an out-of-date edition of the phone book. The arresting office and the breathalyser technician both attempted to provide the accused with an alternate lawyer and with access to duty counsel. The accused refused. The breathalyser technician made two formal breath demands and refused both demands. The accused was made aware of the consequences for refusing to submit to a breath sample and still refused. The breathalyser technician was unable to form an opinion as to the ability of the accused to operate a motor vehicle. The accused was acquitted of the charge of impaired driving.

Reasons

ON GD

The denial of the right to retain and instruct counsel is not a reasonable excuse for refusing to comply with a breath demand. In this case, the police complied with the informational component of the right to counsel. The accused requested specific counsel and even thought the officer acted in completed good faith, and with �considerable effort�, the officer did not do all that could have been done to facilitate the fulfillment of the 10(b) right of the accused. The section 10(b) right of the accused was violated. The accused was not required to �resort to legal advice from a stranger�. Although exclusion of evidence under 24(2) of the Charter is the norm in similar cases, the length to which the police went to make contact with the lawyer of the accused and made available to duty counsel precludes exclusion. If the officer had not made available duty counsel, that would have constituted grounds for the exclusion of evidence under 24(2) of the Charter.

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