R. v. Burns

R. v. Burns

On the balance of probabilities the accused did not fully understand his s.10(b) rights because the arresting officer's strong French accent constituted special circumstances requiring additional steps to ensure comprehension; the police therefore breached s.10(b), and applying the Grant s.24(2) framework the seriousness and impact of the breach warranted exclusion of the breathalyzer evidence (certificate of analysis).

Citation
2017 NSPC 82
Parties
Crown: Her Majesty The Queen; Accused: Ben Mark Scott Burns
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
18 October 2017
Procedural Posture
Criminal / Voir Dire (pre Trial Admissibility)
Outcome
Application granted; s.10(b) Charter breach found; breath evidence (certificate of analysis) excluded under s.24(2) of the Charter.
Legal Topics
Section 10(b) Charter Right to Counsel, Brydges/duty Counsel and Toll Free Number, Language Barrier and Special Circumstances, Section 24(2) Exclusion of Evidence (grant Framework), Breathalyzer Evidence Admissibility
Source Language
English
Criminal Law Constitutional Law Evidence Law Section 10(b) Charter Right to Counsel Brydges/duty Counsel and Toll Free Number Language Barrier and Special Circumstances Section 24(2) Exclusion of Evidence (grant Framework) Breathalyzer Evidence Admissibility

Case Brief

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Parties

Her Majesty The Queen

Crown

Ben Mark Scott Burns

Accused

Procedural Posture

Criminal / Voir Dire (pre Trial Admissibility)

Legal Issues

  1. 1 Whether police satisfied the informational component of s.10(b) by informing the detainee of right to counsel and availability of duty counsel
  2. 2 Whether the arresting officer's strong French accent constituted 'special circumstances' requiring extra steps to ensure comprehension
  3. 3 Whether failure to inform about duty counsel/toll-free number breached s.10(b)

Ratio Decidendi

On the balance of probabilities the accused did not fully understand his s.10(b) rights because the arresting officer's strong French accent constituted special circumstances requiring additional steps to ensure comprehension; the police therefore breached s.10(b), and applying the Grant s.24(2) framework the seriousness and impact of the breach warranted exclusion of the breathalyzer evidence (certificate of analysis).

Court Disposition

Application granted; s.10(b) Charter breach found; breath evidence (certificate of analysis) excluded under s.24(2) of the Charter.

Orders

  • Breach of s.10(b) of the Canadian Charter of Rights and Freedoms declared in respect of the applicant
  • Results of the breathalyzer tests and the certificate of analysis are excluded pursuant to s.24(2) of the Charter