Ms. B had just recently arrived back to Canada. Her plane had only just landed not long before she was stopped by the Ontario R.I.D.E. program as she drove home from the airport. She explained to the officer that she was feeling jetlagged but the officer could smell an odour of alcohol coming from her breath. She was placed under arrest after failing the approved screening device test. Ms. B worked in the United States of America was her primary concern was whether, upon a conviction for a DUI, she could travel back and forth to the States. Her job was on the line and she was incredibly distraught. After being detained, the interrogating officer asked if she would like to speak to her lawyer which or client replied “not right now”. However, this is an issue as the police are required to ask not only if a detained individual would like to speak with their lawyer of choice, but also notify them of the option to speak with duty counsel or another free lawyer. They are also required to allow and remind a detained individual of their right to speak with counsel during the course of a custodial interrogation if the accused has previously expressed interest in speaking with a lawyer.
Ms. B wanted to have the charges dismissed so that she could keep her job in the United States.
Our strategy was to raise a Charter Application as the arresting and interrogating officer failed to honour Ms. B’s section 10 b) protected Charter right – the right to retain and instruct counsel without delay and to be informed of that right.
Our client’s case resulted in a stay of proceedings, which resulted in no criminal record for impaired driving. The judge concluded that Ms. B.’s section 10 b) Charter right had been violated as the officer failed to satisfy Ms. B’s right to speak with counsel, and remind her of that right. Specifically, with Ms. B stating that she did not want to speak with counsel “right now” implied that she would like to at some point. The officer failed to remind her of her protected Charter right and it was the officer’s obligation to reiterate her rights to counsel.