The accused was found slumped over in the driver's seat of his vehicle. He told police that he had consumed 5 beer and was receiving fellatio when the collision occurred. A breath demand was made. He indicated he wanted to speak to a lawyer. At the police station he was given a telephone book, told the number to legal aid and placed in the phone room. He chose not to make any calls and sat there for several minutes. Police proceeded with the investigation. The accused argued that police should have read the Prosper warning.
The court did not agree. It pointed out that the need to read the Prosper warning only arises in narrow circumstances. Namely, where the detainee has asserted his or her right to counsel, the detainee has been reasonably diligent in exercising that right but has been unsuccessful in obtaining legal advice, and has indicated that he or she has changed his or her mind and no longer requires legal advice.
R. v. Marcoux, 2011 ABPC 357