10(b) - COURTS DISAGREE ON WHETHER FALLING ASLEEP ON THE PHONE IS A LACK OF DILLIGENCE

In R. v. Kvemshagen,2011 ABPC 271, the accused made attempts to contact a lawyer before falling asleep at the phone. He was then asked to provide a breath sample. The court held that the accused was afforded a reasonable opportunity to contact a lawyer but had not been duly diligent in his contact attempts when he fell asleep. A Prosper warning was not required before moving forward with the investigation.

The court came to a different conclusion in R. v. Weeks, 2007 ABPC 344. In that case, the court held that since there was no proof that the accused had fallen asleep voluntarily, it could not be said that he acted without diligence. The police should have roused him and given him another opportunity to contact counsel.