Section 10(b) of the Charter violated where accused arrested for impaired driving, indicated he wished to speak to a lawyer, but then after the breath demand was asked whether he would comply and he refused.

If you recall an earlier post of mine, R. v. Wiebe 2013 MBPC 27, from June of 2013, a similar situation has resulted again, so I have made this post as a reminder. This time, it comes out of a Quebec court. In Hammoud v. R. 2014 QCCQ 13252, following a traffic stop and after having observed a few symptoms of impairment by alcohol, the officer demanded that Mr. Hammoud provide a breath sample for analysis by an approved screening device. The result was “Fail”. Mr. Hammoud was then placed under arrest for operating a motor vehicle while his ability to drive was impaired by alcohol. The officer informed Mr. Hammoud of his constitutional rights and police warning. When the officer asked Mr. Hammoud “Do you wish to consult a duty counsel or any other lawyer?”, Mr. Hammoud answered “Yes”. Following the breath demand,  the officer asked Mr. Hammoud “Do you understand?” Mr. Hammoud answered affirmatively again. The officer then asked Mr. Hammoud whether he consented to follow him to the police station; Mr. Hammoud responded by asking “Do I have a choice?

That answer raised a doubt in the officer’s mind as to Mr. Hammoud’s comprehension of the information on the card, as it clearly sets out that refusal or failure to comply with the order is a criminal offence that may result in additional charges, so the officer read the card again. He went through each part carefully, and provided additional explanations in his own words as well. When asked if he understand, Mr. Hammoud responded affirmatively. The officer again asked Mr. Hammoud whether he consented to follow him to the police station. Mr. Hammoud answered “No”. To be sure, another officer read the card to Mr. Hammoud one more time, and summarized the information in his own words. The second officer then asked Mr. Hammoud whether he understood. Mr. Hammoud replied that he understood that the officers thought he was impaired and intended to take him to the police station so that he could blow into the breathalyzer. He also understood that if he were to refuse, his driver’s licence would be suspended and his car would be towed. Mr. Hammoud then said, “No, I don’t want to go, my lawyer will take care of it. See you in court.”

If you recall, in R. v. Prosper [1994] 3 S.C.R. 236, a case involving a breathalyzer demand, the majority of the Court ruled that, where an accused has indicated the desire to consult counsel, the police must provide the person with a reasonable opportunity to do so and must “hold off” from attempting to elicit incriminatory evidence, such as breath samples, from the accused until he or she has had this opportunity. In this case, the Honourable Anouk Desaulniers J.Q.C. said allowing detainees to call their lawyer from inside a patrol car may potentially raise issues with respect to safety and confidentiality, but the police could have taken Mr. Hammoud to the police station, which was only a few minutes away, to provide him with an opportunity to make a confidential call to his lawyer, before asking him to respond to a breathalyzer demand, and on a balance of probabilities, ruled his right to counsel under section 10(b) of the Charter had been infringed (of note to the police cadets, this issue pertains to a breath demand. The Supreme Court of Canada has made it clear that requiring a motorist to blow into an approved screening device without being entitled to consult a lawyer is a reasonable limitation on the right to retain and instruct counsel; within limits of course).  The Judge ordered the exclusion of the refusal evidence under section 24(2) of the Charter.

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Filed under APA Cadets, Impaired Driving, Section 10 Charter

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