Client stopped by police for an impaired investigation. Blew a fail in the roadside screening device so was arrested and a breath demand was made. Client was advised of his right to call a lawyer and he asserted this right. Officer apparently attempted to call legal aid duty lawyer for client while in the police call, on speaker phone. Lawyer could not be reached. Client said he would call at the police station. Enroute to the station client changed his mind and said he would not provide a breath sample. Officer warned that he would be charged with refusal. Client maintained that he did not want to provide a sample. Charged with impaired and refusal.
Held: Actions of the police officer revealed clear violations of the right to counsel, including the right to contact counsel in private and that once the right to call a lawyer has been asserted, the opportunity must be given to call counsel prior to eliciting evidence – in this case the “refusal”. In discussions with Crown, they agreed to withdraw the charges without setting a trial date.