A “Prosper Warning” at this point in law enforcement should not be a foreign concept…

In R. v. Roberts 2019 YKTC 2, an officer responded to a complaint of a possible impaired driver. Following the traffic stop, the officer effected her arrest for impaired driving. As per legal procedure, the officer provided her with her Charter right to legal counsel. She stated that she understood her Charter right to counsel and said that she wished to speak to legal counsel. She said that she did not wish to speak to a Legal Aid lawyer; however, she did not specify a particular lawyer that she wished to speak to. She also did not say that she wished to make a call to a lawyer right away.

Roberts was taken back to the Detachment, a drive of approximately three or four minutes. There was no discussion en route in regards to Roberts speaking to legal counsel. Upon pulling into the Detachment, the officer told Roberts that he would take her to the interview room in order to allow her to contact counsel. Roberts stated that she did not want to call a lawyer anymore. The officer then directed Roberts into the interview room, where he asked Roberts again whether she wished to call a lawyer. Roberts stated for a second time that she did not want to speak to a lawyer. This was approximately one and one-half minutes after first stating that she did not wish to speak to a lawyer, and 11 or 12 minutes after initially stating that she wished to speak to a lawyer.  There was no further discussion or comment by either Roberts or the arresting officer in regard to the issue of legal counsel. After the second time that Roberts said “no” to speaking to legal counsel, the officer felt that she had made up her mind. He said that he did not feel like he should force legal counsel on her if she did not want it.  Roberts provided samples of breath, which exceeded 80mg%.

The arresting officer testified that since the arrest of Roberts, he has learned what a Prosper warning is (this post is meant to educate, not to show this officer in a bad light), and although he had been an officer in excess of 10 years at the time of this occurrence, this was the first case that he had faced this issue of the need to provide a Prosper warning. He said that he had never previously been instructed about the need to provide a Prosper warning when an individual under arrest changes their mind after making an initial request to speak with legal counsel. He said that it was his understanding that he was not the only police officer who was unaware of the need to provide a Prosper warning in such circumstances. 

My fellow officers, Prosper has been the law since 1994. This was not a recent change in the law that could excuse ignorance of it. The expectation is that as officers, we will understand the law as it was stated in Prosper and act in compliance with the requirements of the law.  As an educator in law enforcement, one of my primary duties is to ensure that officers enforcing the laws in Canadian society have an acceptable level of understanding of the fundamental principles governing the actions of those acting on behalf of and in the name of the “State”.

To that end, please be aware that the requirement to provide a Prosper warning is triggered when a detainee who has indicated that they wish to exercise their Charter right to counsel, then changes their mind. Taken one step further, a Prosper warning is required when a detainee who has asked to speak to legal counsel, has then taken further steps to contact counsel, but has been, through no fault of their own, frustrated in those attempts and then changes his or her mind. And, as in this case, even in circumstances where the detainee changes his or her mind about speaking to legal counsel prior to making any actual efforts to do so, a Prosper warning is nonetheless required (some provincial “Charter cards” name the Prosper warning such things as “Confirmation of waiver of rights to counsel”, etc., but are nonetheless Prosper warnings).

There are also several decisions across our country (some I have posted on) that have found Section 10 Charter violations where, following an ambiguous response such as “Not right now” (Munro, Ontario case), “Maybe later” (Kehoe, Alberta case), or “At this point I don’t want to call a lawyer” (Dyck, another Alberta case), which are not unequivocal and capable of supporting many interpretations, the arresting officer did not seek clarification of the response or give the Prosper warning.

Take my suggestion for what it’s worth, but such responses must be clarified and a Prosper warning given as a “best” practice to reduce such Section 10(b) Charter breaches. At the very least, in such cases it may be a good practice of re-advising detainees of the right to counsel, and stating to the arrestee something to the effect that, “If you change your mind at any time tonight during this whole process that you want to talk to a lawyer, just let myself or any other officer know and we’ll make sure you get in contact with a lawyer, okay?” (as in the R. v. MacGregor 2012 NSCA 18 at para. 7 case).  Recruits that I have instructed are likely glutted with hearing me state the latter.

In the case at hand, the evidence of the breath tests was excluded from trial, and the evidence of the officer’s observations of Roberts after she exited her vehicle at his request was excluded from trial as well. As in this case, reading the Prosper warning to ensure that Roberts’ change of mind and waiver of the right to speak to legal counsel was clear and unequivocal, would likely have taken less than 30 seconds to provide this information to her. Any delay subsequently resulting from Roberts then deciding to exercise her right to speak to legal counsel would be reasonable and in accord with the Charter right to counsel.

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