R. v. Fletcher

R. v. Fletcher

The court found on the balance of probabilities that s.10(b)'s implementational duty was breached because after duty counsel indicated he could not provide meaningful advice police failed to provide reasonable tools (such as a telephone book or list of criminal lawyers) to secure further consultation, there was no valid waiver, and exclusion of the accused's words of refusal under s.24(2) was required after applying the Grant factors.

Citation
2021 NSPC 55
Parties
Crown: Her Majesty the Queen; Accused: Gerald Lewis Fletcher
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
29 December 2021
Procedural Posture
Criminal Impaired Operation and Refusal to Provide Breath Sample / Trial and Decision Following Voir Dire
Outcome
The accused's words of refusal are excluded from evidence at trial due to a breach of s.10(b) and absence of a valid waiver; judgment accordingly
Legal Topics
Right to Counsel (s.10(b)), Implementational Duty, Waiver of Counsel, Exclusion of Evidence Under S.24(2), Breathalyzer/refusal
Source Language
English
Criminal Law Constitutional Law Evidence Right to Counsel (s.10(b)) Implementational Duty Waiver of Counsel Exclusion of Evidence Under S.24(2) Breathalyzer/refusal

Case Brief

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Parties

Her Majesty the Queen

Crown

Gerald Lewis Fletcher

Accused

Procedural Posture

Criminal Impaired Operation and Refusal to Provide Breath Sample / Trial and Decision Following Voir Dire

Legal Issues

  1. 1 Did the initial contact with duty counsel satisfy the s.10(b) right to counsel?
  2. 2 After the Prosper warning, did the officer satisfy the implementational duty to secure counsel for the detainee?
  3. 3 Was there a valid waiver of the right to counsel by the accused?

Ratio Decidendi

The court found on the balance of probabilities that s.10(b)'s implementational duty was breached because after duty counsel indicated he could not provide meaningful advice police failed to provide reasonable tools (such as a telephone book or list of criminal lawyers) to secure further consultation, there was no valid waiver, and exclusion of the accused's words of refusal under s.24(2) was required after applying the Grant factors.

Court Disposition

The accused's words of refusal are excluded from evidence at trial due to a breach of s.10(b) and absence of a valid waiver; judgment accordingly

Orders

  • Exclude Mr. Fletcher's words of refusal from evidence at trial
  • Judgment accordingly