R. v. Howlett

R. v. Howlett

Court found a s.10(b) breach because the duty counsel who assisted the detainee was administratively suspended and therefore did not meet the Criminal Code definition of 'counsel', but under the Grant s.24(2) analysis admission was appropriate because the police acted in good faith following protocol, the breach was not deliberate or egregious, the breath samples were reliable and crucial to the merits, and exclusion would not be required to maintain confidence in the administration of justice; accordingly the exclusion application was dismissed and the breath evidence admitted.

Citation
2017 NSPC 71
Parties
Crown: The Queen; Defendant: Michael Howlett
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
14 December 2017
Procedural Posture
Criminal Impaired Driving (care and Control; Over 80/refusal) / Pre Trial Charter Application (s.10(b) Challenge; S.24(2) Exclusion Application)
Outcome
Charter s.10(b) breach found but application to exclude evidence dismissed; breathalyzer evidence admitted.
Legal Topics
Right to Counsel S.10(b) Charter, Definition of Counsel (criminal Code S.2), Duty Counsel and Suspension, Exclusion of Evidence S.24(2) / Grant, Breathalyzer / Intox Ec/ir II, Police Good Faith Obligations
Source Language
English
Criminal Law Constitutional Law Evidence Professional Regulation/administrative Law Right to Counsel S.10(b) Charter Definition of Counsel (criminal Code S.2) Duty Counsel and Suspension Exclusion of Evidence S.24(2) / Grant +2 more

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Parties

The Queen

Crown

Michael Howlett

Defendant

Procedural Posture

Criminal Impaired Driving (care and Control; Over 80/refusal) / Pre Trial Charter Application (s.10(b) Challenge; S.24(2) Exclusion Application)

Legal Issues

  1. 1 Whether detainee's s.10(b) right to counsel was violated when duty counsel was administratively suspended
  2. 2 Whether the person who acted as duty counsel qualified as 'counsel' under Criminal Code s.2 and for s.10(b) purposes
  3. 3 Whether breath samples obtained after the alleged Charter breach should be excluded under s.24(2) / Grant

Ratio Decidendi

Court found a s.10(b) breach because the duty counsel who assisted the detainee was administratively suspended and therefore did not meet the Criminal Code definition of 'counsel', but under the Grant s.24(2) analysis admission was appropriate because the police acted in good faith following protocol, the breach was not deliberate or egregious, the breath samples were reliable and crucial to the merits, and exclusion would not be required to maintain confidence in the administration of justice; accordingly the exclusion application was dismissed and the breath evidence admitted.

Court Disposition

Charter s.10(b) breach found but application to exclude evidence dismissed; breathalyzer evidence admitted.

Orders

  • Application to exclude breathalyzer evidence dismissed
  • Breathalyzer results obtained on February 12, 2017 admitted into evidence