• Lewis Waring

Right to Counsel - Liam Pollock

On July 1, 2018, an officer of the Royal Canadian Mounted Police [“the RCMP”] approached a car, which he stated was parked in the middle of the road. Inside the car, Glenn Cure was sleeping in the driver’s seat. After knocking on the window, waking him up, the officer testified that he saw the appellant move his hand toward the gearshift, prompting the officer to open the door of the car and remove the keys from the ignition. Upon inspection, he noticed a beer in the cup holder and detected a strong smell of alcohol on his breath. At this point the appellant got out of the car and the officer saw that Mr. Cure was swaying from side to side, prompting him to make an arrest for care or control while being impaired.


Denial of right to counsel in case of intoxicated driving charges


Once inside the police car, the appellant in R v Cure [“Cure”], a 2020 decision by the Manitoba Court of Queen’s Bench [“the MBQB”], was read the breath demand, his right to counsel and a police caution. The appellant in Cure responded that he understood the rights which the officer had read to him but that he did not have a specific lawyer that he wanted to retain. Due to this fact, the officer decided to call Legal Aid. After the appellant spoke to the lawyer from Legal Aid for a number of minutes, he was later administered breathalyzer tests. Prior to the tests, another officer reread him his rights, and, after asking if he understood them, he stated, “we already did.” After performing two tests, each test showed a blood alcohol level of .12 and .11 respectively.


The appellant in Cure testified that while at his friend’s cottage he drank seven or eight beers between 8 and 10:30 pm. At around 10 pm he took a prescribed pill for headaches. Afterwards he felt dizzy and tried to sleep. However, as it was too hot, the appellant went into his air-conditioned car where he fell asleep. Mr. Cure stated that he had no intention to drive the car and where the officer believed that he was reaching for the gearshift, the appellant said he was actually turning off the ignition. Furthermore, the appellant stated that there was no discussion with the officer about making a call and instead the officer simply called Legal Aid and gave Mr. Cure the phone. He stated that he was not given the opportunity to call a lawyer of his choice, and if he was given the option he would have done so.


Unconstitutionally obtained breathalyzer admissible evidence


The first issue in Cure was whether there were reasonable grounds for a breath demand. As stated in R v Jacob [“Jacob”], there are two aspects to reasonable grounds: a subjective component which asks whether the officer honestly believed that there were grounds for a breath demand and an objective component which asks whether a reasonable person in the officer’s position would believe that there were grounds for a breath demand. After reviewing the facts, it was determined that the trial judge correctly concluded that there were reasonable grounds for a breath demand.


The second issue in Cure was whether the trial judge erred in not finding that the right to consult the counsel of your choice was violated with regards to section 10(b) of the Canadian Charter of Rights and Freedoms [“the Charter”]. The issue that the MBQB brought forth was whether the information given to the appellant at the roadside was enough to trigger the due diligence requirement so that the fault for not consulting with the counsel of choice was on the appellant. In the MBQB’s view, in situations where the individual does not know how to exercise this right with due diligence, he or she should not be expected to do so. The appellant was not given a phonebook nor was he given information necessary to learn how to properly contact a lawyer of his choice. The MBQB stated that it was not surprising that the appellant did not indicate their counsel of choice as someone who had never been arrested before would not be expected to come up with a lawyer’s name. The fact that Legal Aid was contacted prior to any additional discussion with the appellant regarding legal representation meant the officer did not afford the appellant an opportunity to choose his lawyer and therefore violated section 10(b).


The third issue in Cure was whether, despite the violation of the appellants section 10(b) rights, the evidence was still admissible. Evidence in this matter is determined to continue to be admissible unless doing so would “bring the administration of justice into disrepute.” The MBQB described the breach as serious due to the fact that the right to counsel is very important. Furthermore, he found that the officer, in going straight to Legal Aid, showed that the officer didn’t understand the appellant’s rights under section 10(b) of the Charter. The MBQB attributed this to his inexperience, due to the fact that he had only been an officer for six months and this was his first impaired driving case where he was the lead officer. Therefore, while the appellant was unable to access their right to counsel of choice because he did receive legal advice prior to the breathalyser test, the impairment of the right to counsel was not significant. In R v Grant, it was established that in situations “where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence from the accused’s body may be admitted.” The evidence was therefore found to be admissible.


The last issue was in regard to the care or control of the vehicle. Section 258(1)(a) of the Criminal Code states that, in circumstances when it is proven that the accused was in the driver’s seat of the vehicle, the accused will be presumed to have care and control of the vehicle unless proven otherwise. It was found in Cure that the trial judge correctly concluded that the presumption that the appellant had care and control of the vehicle had not been disproven.


As such, the appeal was dismissed. It was found that there were reasonable grounds for a breath demand and that the appellant was in care of the vehicle. While there was a finding of a breach of the appellant’s rights in regard to the breath demand, the evidence was found to be admissible.


Clear instructions for right to counsel required


The ability for individuals to seek proper legal advice is a vital aspect of the Canadian legal system as it helps to lower the legal disadvantage that individuals may face.. However, as shown in Cure, where that right is violated, it does not necessarily mean that the evidence that comes afterwards will become inadmissible. The reasoning behind the admissibility of the breathalyzer evidence in Cure showed just that. Part of the reason why the appellant in this case was not provided with the ability to obtain proper legal advice was that the officer was new and that this was his first time leading an impaired driving case. This seems like an important issue within the case. If this individual had only been on the job for six months and had then become the lead officer on this case, it puts forth an important question as to whether the officer was given the proper education regarding these types of cases in order to perform his job properly. Every individual who goes through the legal system has the right not only to counsel but to the counsel of their choice. Therefore, I would argue that maybe there should be better communication between law enforcement and the legal community. An individual’s rights being met should not be dependent on the experience of the law enforcement officer that is handling your case. As such, I would argue that maybe there should be a more standardized system in order to prevent situations like this from happening in the future. Every person in the justice system has a specific role. As such, it was the officer’s job to understand and properly allow people like Mr. Cure to obtain the proper legal counsel instead of simply calling Legal Aid.


However, I would agree with the assessment of the Justice of the Court of Queen’s Bench. While there was a clear violation of the rights of the individual, in this situation, as according to Grant, this was not a serious violation of the individuals’ rights. The individual was given legal advice and because a breathalyzer test is seen as being none invasive, the test was admissible. Furthermore, in Manitoba, one can be charged with a criminal offence for refusing a breath sample from the police when requested. Therefore, regardless of the appellants lawyer, it seems that most likely that the breathalyzer results would still have been admissible.


Cure shows the balance between an individual’s rights and the admissibility of evidence. While I would argue that the MBQB in Cure came to the correct decision, it is easy to imagine a case where the decision is not as clear. While evidence is important to establish the full picture of a case, the rights of individuals established in section 10 of the Charter to attain a lawyer of their choosing is of equal importance. Therefore, as stated earlier, there should be clearer instruction for those in law enforcement to ensure that situations such as this do not occur in the future.

Check out the Robson Crim MLJ
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