R. v. LaPointe

Parties

Procedural Posture

Criminal Impaired Driving (summary Conviction) / Trial Charter Application Re S.10(b) and S.24(2) Exclusion

Legal Issues

1. 1 Whether police breached s.10(b) by failing to inform and implement access to counsel of choice (French-speaking) without delay
2. 2 Whether police breached the right to consult counsel in private by overhearing and inadvertently recording the detainee’s call to duty counsel
3. 3 Whether the breath sample results should be excluded under s.24(2) of the Charter

Ratio Decidendi

Police complied with informational and general implementational duties and the accused voluntarily chose to speak with English duty counsel; however the partial overhearing and inadvertent recording of the detained person’s call amounted to a serious breach of the right to consult counsel in private and, applying the Grant factors, the seriousness and impact of that breach outweighed the societal interest in admitting reliable breath readings, so the breath evidence was excluded under s.24(2) and the accused was acquitted of the over‑80 offence.

Court Disposition

Breathalyzer evidence excluded under s.24(2) of the Charter; accused acquitted of the remaining s.320.14(1)(b) offence.

Orders

• Exclude breath sample results obtained from the Approved Instrument under s.24(2) of the Canadian Charter of Rights and Freedoms
• Defendant David LaPointe found not guilty of the offence contrary to s.320.14(1)(b) of the Criminal Code