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Stephen R. Biss

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Mississauga, ON

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We represent young persons at all GTA Youth Court Courthouses including Brampton, Milton, Orangeville, Guelph, and Toronto.

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R. v. Waterman

[1998] M.J. No. 381

Reasons

MA QB

In assessing whether to admit or exclude the evidence of the appellant's refusal to comply with the breathalyzer demand in the instant appeal, it is important to bear in mind the following facts: first, as I have previously mentioned, there existed a factual link between the detention and the right to be informed of the right to counsel. The appellant was told that he was being questioned in [page563] relation to a hit-and-run accident and was soon after detained for him to comply with a breathalyzer demand in relation to his having driven the alleged hit-and-run car. From a factual standpoint, the latter offence is undoubtedly connected to the former. Secondly, it must be noted that the appellant was never physically "detained" by the police officers nor was he taken to police headquarters for questioning. He remained in his own home and was at liberty to contact a lawyer at any time he deemed necessary. He was, in the light of the criteria set out by this court in R. v. Therens, supra, legally "detained" as regards s. 10 of the Charter, but this form of detention is to be contrasted with the physical restraint usually imposed following an arrest. Thirdly, the evidence shows that the police officers acted in good faith throughout the proceedings and never wilfully or knowingly breached the appellant's rights. In assessing whether to admit or exclude the evidence of the appellant's refusal to comply with the breathalyzer demand in the instant appeal, it is important to bear in mind the following facts: first, as I have previously mentioned, there existed a factual link between the detention and the right to be informed of the right to counsel. The appellant was told that he was being questioned in [page563] relation to a hit-and-run accident and was soon after detained for him to comply with a breathalyzer demand in relation to his having driven the alleged hit-and-run car. From a factual standpoint, the latter offence is ... [T]he right to retain and instruct counsel, in modern Canadian society, has come to mean more than the right to retain a lawyer privately. It now also means the right to have access to counsel free of charge where the accused meets certain financial criteria set up by the provincial Legal Aid plan, and the right to have access to immediate, although temporary, advice from duty counsel irrespective of financial status. These considerations, therefore, lead me to the conclusion that as part of the information component of s. 10(b) of the Charter, a detainee should be informed of the existence and availability of the applicable systems of duty counsel and Legal Aid in the jurisdiction, in order to give the detainee a full understanding of the right to retain and instruct counsel. ... [T]he right to retain and instruct counsel, in modern Canadian society, has come to mean more than the right to retain a lawyer privately. It now also means the right to have access to counsel free of charge where the accused meets certain financial criteria set up by the provincial Legal Aid plan, and the right to have access to immediate, although temporary, advice from duty counsel irrespective of financial status. These considerations, therefore, lead me to the conclusion that as part of the information component of s. 10(b) of the Charter, a detainee should be informed of the existence and availability of the applicable systems of duty counsel and Legal Aid in the jurisdiction, in order to give the detainee a full understanding of the right to retain and instruct counsel.