R. v. Hughes (A.F.), (1988) 91 N.B.R.(2d) 181 (PC)

• Judge: Harper, P.C.J.
• Court: Provincial Court of New Brunswick (Canada)
• Case Date: July 22, 1988
• Jurisdiction: New Brunswick
• Citations: (1988), 91 N.B.R.(2d) 181 (PC)

R. v. Hughes (A.F.) (1988), 91 N.B.R.(2d) 181 (PC);

    91 R.N.-B.(2e) 181; 232 A.P.R. 181

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Her Majesty the Queen v. Andrew Francis Hughes

Indexed As: R. v. Hughes (A.F.)

New Brunswick Provincial Court

York County

Harper, P.C.J.

July 22, 1988.

Summary:

The accused was charged with breathalyzer refusal contrary to s. 238(5) of the Criminal Code.

The New Brunswick Provincial Court held that the accused's right to counsel was denied and that certain evidence be excluded from the record. In the result, the court dismissed the information and acquitted the accused.

Civil Rights - Topic 4602

Right to counsel - Denial of - Evidence taken inadmissible - The New Brunswick Provincial Court held that an accused's right to counsel was denied when he was refused permission to call a lawyer prior to giving a second breath sample - The accused had previously elected not to exercise his right to counsel - The court excluded the evidence since its admission could bring the administration of justice into disrepute - See paragraph 23.

Civil Rights - Topic 4604

Right to counsel - Denial of or interference with - What constitutes - An accused was advised of his Charter rights after a breathalyzer demand was given - At the police station the accused elected not to exercise his right to counsel and gave the first of the two required breath samples - Prior to completion of the second sample the accused requested permission to call a lawyer - The request was refused, whereupon the accused refused to provide the second sample - The New Brunswick Provincial Court held that the accused was denied his right to counsel - See paragraph 16.

Civil Rights - Topic 4608

Right to counsel - Right to be advised of - The New Brunswick Provincial Court held that absent a waiver of the right to counsel an accused had a continuing right to consult counsel at all times and at any time during any investigation or testing procedure - See paragraphs 15, 21.

Civil Rights - Topic 4612

Right to counsel - Waiver or abandonment of - An accused was advised of his Charter rights after being given a breathalyzer demand - At the police station the accused elected not to exercise his right to counsel and gave the first of the two required breath samples - Prior to completion of the second sample the accused requested permission to call a lawyer - The request was refused, whereupon the accused refused to provide the second sample - The New Brunswick Provincial Court held that the accused's delay in requesting the advice of counsel did not constitute a waiver of his rights - See paragraphs 13 to 14.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 4602 above].

Cases Noticed:

R. v. Mockler (1982), 35 N.B.R.(2d) 712; 88 A.P.R. 712, consd. [para. 20].

R. v. MacKinnon (1985), 21 C.C.C.(3d) 264 (Alta. C.A.), consd. [para. 20].

R. v. Phillips et al. (1986), 69 A.R. 54; 26 C.C.C.(3d) 60 (C.A.), consd. [para. 20].

R. v. Jensen (1987), 78 N.B.R.(2d) 120; 198 A.P.R. 120, consd. [para. 20].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 24 [paras. 10, 18].

Counsel:

Unavailable.

This charge was heard before Harper, P.C.J., of the New Brunswick Provincial Court, York County, whose decision was delivered on July 22, 1988.