SECTION 10(B) - RIGHT TO COUNSEL AT ROADSIDE REVIEWED
Saturday, March 14, 2015 at 8:00PM Mr. Caswell was convicted of refusing to comply with a demand for a roadside breath sample (see R. v. Caswell, 2014 ABPC 55). His conviction was affirmed by a judge of the Alberta Court of Queen’s Bench (see R. v. Caswell, 2014 ABQB 640):
The appeal judge concluded the trial judge was correct in finding the applicant’s constitutional right to counsel had not been breached. The appeal judge found the suspension of the right to consult a lawyer when a roadside breath demand is made, so long as the test can be done “forthwith”, is justified by both the societal objective of facilitating the detection and deterrence of impaired driving and by practical operational realities. While cellular technology has improved since the Supreme Court’s decision in R v Thomsen in 1988, the societal objective continues to be relevant. The appeal judge also noted that the Court of Appeal in Mitchell held that the fact it might have been possible to access legal advice in the particular circumstances of a case does not detract from the overall purpose and justification for suspending the right to counsel during roadside sobriety investigations. As the ASD demand was made forthwith and the constable had properly instructed the applicant on the ASD demand, the appeal judge found the applicant had no reasonable excuse for failing to comply with the demand.
The Alberta Court of Appeal has granted leave to appeal the above decision: R. v. Caswell, 2015 ABCA 97