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digest of the week - “No right to your cell phone”

2013 CarswellAlta 177
R. v. Brisebois
Alberta Provincial Court
Judgment: January 29, 2013

Criminal law | Charter of Rights and Freedoms | Arrest or detention [s. 10] | Right to counsel [s. 10(b)] | Right to retain and instruct counsel of choice

Accused was stopped by police officer and was observed to have strong smell of alcohol on breath — Accused failed roadside test and was taken to police station — Accused told officer that he wanted to contact lawyer, before giving breath sample — Accused was placed in phone room, but later told officer that he needed his cell phone to retrieve his lawyer's number — Accused was not given opportunity to retrieve cell phone — Accused refused breath demand and was charged with failure to give sample — Accused applied to have evidence of refusal excluded, on basis that his s. 10(b) rights under Canadian Charter of Rights and Freedoms were violated — Application granted — Officer was not required to help accused retrieve cell phone, so that he could contact counsel of choice — Officer would have to go out of his way to retrieve cell phone, and it was more urgent to take sample — Reasonable opportunity to contact counsel was provided to accused.
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