R. v. Prosper [1994] 3 S.C.R. 236: Right to retain and instruct counsel-- Appellant unable to contact legal aid lawyer and unable to afford private lawyer -- whether the breathalyser evidence should be excluded.

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR NOVA SCOTIA

Constitutional law -- Charter of Rights -- Right to retain and instruct counsel and to be informed thereof -- Free duty counsel -- Arrest made outside normal working hours -- Rights read to person under arrest mentioning availability of legal aid -- Appellant wishing to speak with lawyer and provided list of legal aid lawyers -- Appellant unable to contact legal aid lawyer and unable to afford private lawyer -- Breathalyser test taken and failed -- Whether s. 10(b) of the Charter imposing substantive constitutional obligation on governments to provide free and immediate preliminary legal advice upon request -- Whether appellant's s. 10(b) right was violated -- If so, whether the breathalyser evidence should be excluded under s. 24(2) -- Canadian Charter of Rights and Freedoms, ss. 1, 7, 10(b), 24(2) -- Criminal Code, R.S.C., 1985, c. C-46, ss. 253(a), (b), 254(3), (5), 258(1)(c)(ii), (d), 503(1)(a).

Late one Saturday afternoon, two police officers observed the appellant driving erratically. Following a chase on foot, he was arrested and charged with car theft, with having care and control of a motor vehicle with a blood alcohol level above the legal limit contrary to s. 253(b) of the Criminal Code, and with having the control of a motor vehicle while impaired contrary to s. 253(a). He had a strong smell of alcohol on his breath, bloodshot eyes, his speech was intermittent and slurred and he was swaying from side to side. A section 10(b) Charter caution was read to him from a card, advising of the right to apply for free legal aid. The appellant indicated that he wanted to speak with a lawyer. The police provided him with a list of legal aid lawyers and, when this search proved unsuccessful, gave him a telephone book to continue his search. The police did not at first realize that all but one of the lawyers on the list were currently unavailable outside regular office hours, but they informed the appellant of this fact upon learning of this situation. The appellant declined to call lawyers in private practice because he could not afford their services. He then agreed to take the breathalyser tests.

The trial judge dismissed the s. 253(a) charge on the ground that he had a reasonable doubt. The defence, while conceding that all elements on the s. 253(b) charge had been proved, successfully argued that appellant's s. 10(b) Charter rights had been infringed, that the breathalyser certificate should be excluded under s. 24(2) of the Charter and that the charge should be dismissed. The Court of Appeal allowed the Crown's appeal, substituted a conviction under s. 253(b) of the Code and remitted the matter back to the trial court for sentencing. At issue here were whether the s. 10(b) Charter right to retain and instruct counsel without delay imposed a substantive constitutional obligation on governments to ensure that duty counsel is available upon arrest or detention to provide free and immediate preliminary legal advice upon request, whether appellant's s. 10(b) right was violated, and if so, whether the breathalyser evidence should be excluded under s. 24(2) of the Charter.

Held (La Forest, L'Heureux-Dubé, Gonthier and Major JJ. dissenting): The appeal should be allowed.

The issues are decided as follows:

Section 10(b) of the Charter
Section 10(b) of the Charter does not impose a substantive constitutional obligation on governments to ensure that duty counsel is available upon arrest or detention to provide free and immediate preliminary legal advice upon request (unanimous). Section 10(b) was violated: per Lamer C.J. and Sopinka, Cory, McLachlin and Iacobucci JJ. (La Forest, L'Heureux-Dubé, Gonthier and Major JJ. dissenting).

Section 24(2) of the Charter
The evidence should be excluded as its admission would bring the administration of justice into disrepute: per Lamer C.J. and Sopinka, Cory, McLachlin and Iacobucci JJ. (La Forest, L'Heureux-Dubé and Gonthier JJ. dissenting). Major J. did not address this issue.

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