R. v. Benjamin (S.R.), (2003) 223 N.S.R.(2d) 388 (PC)

• Judge: Tufts, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: December 04, 2003
• Jurisdiction: Nova Scotia
• Citations: (2003), 223 N.S.R.(2d) 388 (PC);2003 NSPC 62

R. v. Benjamin (S.R.) (2003), 223 N.S.R.(2d) 388 (PC);

 705 A.P.R. 388

MLB headnote and full text

Temp. Cite: [2004] N.S.R.(2d) TBEd. MY.048

Her Majesty the Queen v. Steven Robert Benjamin

(1316816; 2003 NSPC 62)

Indexed As: R. v. Benjamin (S.R.)

Nova Scotia Provincial Court

Tufts, P.C.J.

December 4, 2003.

Summary:

The accused was charged with driving while having an excessive blood-alcohol content. He argued that his right to counsel (Charter, s. 10(b)) was violated and sought to exclude the certificate of analysis.

The Nova Scotia Provincial Court dismissed the application and convicted the accused.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The accused was dealt with as a suspected impaired driver - He was advised of his right to counsel and taken to the police station - He indicated that he wanted to call a lawyer - He was allowed to call his father to obtain a telephone number - The police arranged the call - After three minutes, the accused emerged from the telephone room and stated that he would take the breathalyzer - The officer asked the accused if he wished to speak to a lawyer - The accused said no - The accused failed the breathalyzer and was charged with driving while having an excessive blood-alcohol content - He argued that his right to counsel (Charter, s. 10(b)) was violated - He argued that the officer, knowing the defendant did not speak to a lawyer, was obliged to advise him first of his right to a reasonable opportunity to contact counsel and secondly of the police obligation during this time not to elicit incriminating evidence - The Nova Scotia Provincial Court rejected the argument - The accused was given a full opportunity to contact counsel - It could not be said that he was unable to contact counsel after being reasonably diligent in attempting to do so - Therefore, the "Prosper warning" was not required - The officer correctly clarified whether the defendant still wanted to speak to a lawyer - The defendant waived his rights clearly and unequivocally.

Civil Rights - Topic 4605

Right to counsel - General - Denial of - Due to lack of time or opportunity - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4610

Right to counsel - General - Impaired driving (incl. demand for breath or blood sample) - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4612

Right to counsel - General - Waiver or abandonment of - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4620.4

Right to counsel - General - Duty of accused to act diligently - [See Civil Rights - Topic 4604 ].

Cases Noticed:

R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321; 92 C.C.C.(3d) 353; 33 C.R.(4th) 85, refd to. [para. 5].

R. v. Mood (J.L.) (2002), 200 N.S.R.(2d) 195; 627 A.P.R. 195 (S.C.), refd to. [para. 8].

R. v. Wohlberg (D.V.) (2003), 230 Sask.R. 196 (Q.B.), refd to. [para. 9].

R. v. Manolescu (C.J.) (2002), 319 A.R. 211 (Q.B.), refd to. [para. 10].

R. v. Rezansoff (B.) (2003), 337 A.R. 169 (Q.B.), refd to. [para. 11].

R. v. Mercredi, [2001] S.J. No. 569, refd to. [para. 12].

R. v. Russell (B.E.) (2000), 232 N.B.R.(2d) 297; 598 A.P.R. 297; 150 C.C.C.(3d) 243 (C.A.), refd to. [para. 13].

R. v. Coutereille (G.P.) (1995), 65 B.C.A.C. 185; 106 W.A.C. 185 (C.A.), refd to. [para. 14].

R. v. Maloney (D.F.) (1995), 147 N.S.R.(2d) 139; 426 A.P.R. 139 (C.A.), refd to. [para. 15].

R. v. Lavallee (N.) (1999), 256 A.R. 346 (Prov. Ct.), refd to. [para. 16].

R. v. Turney (T.) (2000), 284 A.R. 234 (Prov. Ct.), refd to. [para. 17].

R. v. Durham (D.G.) (1994), 137 N.S.R.(2d) 128; 391 A.P.R. 128 (Prov. Ct.), refd to. [para. 18].

R. v. Luong (G.V.) (2000), 271 A.R. 368; 234 W.A.C. 368 (C.A.), refd to. [para. 19].

Counsel:

Darrell I. Carmichael, for the Crown;

Chris Manning, for the defence.

This application was heard in Kentville, Nova Scotia, on December 4, 2003, before Tufts, P.C.J., of the Nova Scotia Provincial Court, who delivered the following decision orally on that date, and written decision on May 11, 2004.