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CONSTITUTIONAL ISSUES - Legal rights - Right to retain and instruct counsel without delay

Tuesday, April 06, 2021 @ 9:23 AM  


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Application by Bowen for the exclusion of evidence. Bowen was charged with impaired driving and driving with a blood-alcohol level exceeding .08. After Bowen failed an approved screening device test, he was arrested for impaired driving. The arresting officer read Bowen his rights and the breath demand from her issued Charter card. At the RCMP detachment, Bowen was placed in the phone room but subsequently said he just wanted to get the test over with. The officer read the waiver from her Charter card and asked if he understood. He replied that he did. The officer then asked if he wanted to waive his right to contact a lawyer and he replied in the affirmative. Bowen then provided two samples of his breath. At issue was whether the purported Prosper warning read to Bowen by the officer from her issued Charter card was valid, given the officer’s purported reversal of two words. Bowen took the position that his s. 10(b) of the Canadian Charter of Rights and Freedoms (Charter) rights were violated.

HELD: Application dismissed. Bowen was provided with a reasonable opportunity to exercise his s. 10(b) Charter rights. He appeared to change his mind about contacting counsel and the officer properly attempted to obtain a waiver. In court, the officer misread the pre-printed waiver as she inverted two words. It was probable that she also misread the waiver to Bowen on the date in question. However, the words spoken substantially complied with a proper Prosper warning. The officer therefore provided a valid waiver and Prosper warning of the right to counsel. As a result, there was no breach of Bowen’s s. 10(b) Charter rights. Even if there had been a breach, the court would have nonetheless declined to exclude the evidence.

R. v. Bowen, [2021] A.J. No. 207, Alberta Provincial Court, J. Sihra Prov. Ct. J., February 10, 2021. Digest No. TLD-April52021002