R. v. Benjamin

R. v. Benjamin

A Prosper warning is required only when the detainee has been reasonably diligent in attempting to contact counsel, is unable to reach counsel (apparent to police), and then expressly or impliedly changes his mind about contacting counsel connected to that inability; here the defendant made only a three‑minute call to his father, made no further attempts, was asked and clearly waived his right, so no Prosper warning was required, the s.10(b) right was not breached, the Certificate of Analysis was admissible and the defendant is guilty under s.253(b).

Citation
2003 NSPC 62
Parties
Crown: Her Majesty the Queen; Defendant: Steven Robert Benjamin
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
18 December 2003
Procedural Posture
Criminal / Trial Verdict
Outcome
Defendant found guilty of impaired operation contrary to s.253(b) of the Criminal Code; s.253(a) charge dismissed.
Legal Topics
Right to Counsel, Waiver of Rights, Prosper Warning, Breathalyzer Admissibility, Impaired Driving
Source Language
English
Criminal Law Constitutional Law Evidence Law Right to Counsel Waiver of Rights Prosper Warning Breathalyzer Admissibility Impaired Driving

Case Brief

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Parties

Her Majesty the Queen

Crown

Steven Robert Benjamin

Defendant

Procedural Posture

Criminal / Trial Verdict

Legal Issues

  1. 1 Whether a Prosper warning was required before eliciting breath samples
  2. 2 Whether the defendant validly waived his s.10(b) right to counsel
  3. 3 Whether the breath analysis evidence was admissible

Ratio Decidendi

A Prosper warning is required only when the detainee has been reasonably diligent in attempting to contact counsel, is unable to reach counsel (apparent to police), and then expressly or impliedly changes his mind about contacting counsel connected to that inability; here the defendant made only a three‑minute call to his father, made no further attempts, was asked and clearly waived his right, so no Prosper warning was required, the s.10(b) right was not breached, the Certificate of Analysis was admissible and the defendant is guilty under s.253(b).

Court Disposition

Defendant found guilty of impaired operation contrary to s.253(b) of the Criminal Code; s.253(a) charge dismissed.

Orders

  • Charge under s.253(a) dismissed
  • Convicted under s.253(b); Certificate of Analysis admitted into evidence