10(b) Charter right to access counsel and ambiguous responses.

R. v. Dyck 2016 ABPC 82 – again, my usual preamble, this is a provincial court level decision, but it bears some merit. Dyck failed a screening breath test administered pursuant to the investigating officer’s demand and was arrested for impaired driving. In accordance with the usual practice, Dyck was asked if he understood the right to counsel as read by the officer. He said he did. He was then asked if he wanted to contact a lawyer and he said, “at this point I don’t want to call a lawyer”. Dyck was driven to a nearby police office. He was processed and placed in a holding cell. Shortly thereafter, evidentiary breath samples were demanded and provided, and once the paper work was prepared and served, he was released.

Dyck was never asked again if he wanted to contact counsel. Even once at the police station, he was neither offered access to a phone, nor provided any more information about accessing counsel. The officer testified that Dyck never asked, but if he had, he would have been provided an opportunity to contact counsel. In the circumstances, the officer neither sought nor obtained any formal waiver of the right to counsel.

Essentially, the Judge ruled that an ambiguous response at the roadside regarding contacting counsel should not be automatically interpreted as a failure to invoke the right to contact counsel, thereby discharging the police from any further Section 10(b) duties. Where there is an indication that the accused may not have understood the right as read, then it will not suffice for the police to rely on the “mechanical recitation” of the rights. The officer must take steps to ensure the detainee understands. Some follow up by the officer to be sure the accused understood the right was required and a breach of Dyck’s rights under the Charter Section 10(b) was shown.

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