Le fait pour un suspect de simplement mentionner vouloir parler à un tiers sans autre détail n'oblige pas la police à contacter ce dernier aux fins de l'exercice du droit à l'avocat

R. v. Webber, 2002 BCCA 692

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[1]         HUDDART J.A.:  The only issue on this appeal is whether the summary conviction appeal judge erred in not finding a breach of the appellant's right to counsel.  In able and succinct submissions, Mr. Blazina sought to persuade this Court that the police officers who stopped the appellant in a roadside check about 10:45 p.m. on 3 December 1998, did not fulfil their obligation to facilitate his obtaining the legal advice he told them he wanted, before they decided he had refused to provide a breath sample and took him to the cells.

[2]         Counsel raised the interesting question of whether a failure to provide a reasonable opportunity to consult counsel is to be considered as a reasonable excuse, as it was in Brownridge v.  The Queen (1972), 1972 CanLII 17 (SCC), 7 C.C.C. (2d) 417, or is to be considered only on a s. 24(2) application to exclude evidence for violation of s. 10(b) of the Charter, as the Ontario Court of Appeal suggest in R. v. Williams (1992), 1992 CanLII 7657 (ON CA), 78 C.C.C. (3d) 72, leave to appeal to S.C.C. refused at 80 C.C.C. (3d) vi and 89 C.C.C. (3d) vi.

[3]         On the view I take of this appeal, I need not address that question.  This is because the trial judge found the appellant was interested only in speaking to Sergeant McDougall, whom he described as a friend he trusted.  There is ample evidence that is all the appellant wanted to do, despite the efforts of Constable Ksionzyk to persuade him to try to call a lawyer.

[4]         The appellant's own evidence was consistent with that finding.  He would blow only if he could call Sergeant McDougall.  That was the appellant's attitude when he was first advised of his rights at the roadside check and as he was being taken to the cells after the police officers had recorded his refusal.

[5]         Sergeant McDougall is not a lawyer.  Constable Ksionzyk's refusal to direct a call to Sergeant McDougall was not a reasonable excuse for a failure to comply with a demand for a breath sample.  It follows the appeal must be dismissed.