Our Francophone client was arrested for drinking and driving. At the police station she asked to speak to the French speaking civil or family lawyers who represented her. The police claimed that they tried to call both these lawyers, with no result. The police then put our client on the phone with Duty Counsel. Our client complained about the lawyer she spoke with and asked to speak to a French speaking officer. The police went ahead with the Breathalyzer tests.

In July 2016, our client was found not guilty of over 80 and impaired driving in Ottawa. The judge ruled that the police violated her right to speak with her counsel of choice. The police officers did not take sufficient steps to contact her lawyer of choice. The judge also ruled that her right to speak to a Francophone lawyer and police officer was violated.

Right to counsel of choice in drinking and driving cases

The right to immediately speak to a lawyer upon detention or arrest is one of the most fundamental rights in Canada. The right to counsel under the Charter includes the following:

Ottawa criminal defence lawyer The right to speak to a lawyer is usually suspended during brief roadside drinking and driving investigations, for example at RIDE stops or traffic stops to check sobriety.  However, once someone is arrested they have the right to immediately speak with a lawyer.

Ottawa criminal defence lawyer The police have a duty to take reasonable steps to contact the lawyer someone chooses.

Ottawa criminal defence lawyer If a detainee asks to speak to a lawyer, the police have a duty to hold-off questioning or breath-testing, until the detainee has had a reasonable opportunity to speak with the lawyer. The police must inform the detainee of this “hold-off” period.

Ottawa criminal defence lawyer If counsel of choice is not available right away, the detainee does not have to pick another lawyer immediately. A detainee can wait a reasonable amount of time for their counsel of choice to phone the police back.

Ottawa criminal defence lawyer The counsel of choice does not have to be a criminal lawyer; for example, it may be a civil, real estate, or family lawyer.

Ottawa criminal defence lawyer The detainee is not limited to one consultation with counsel. If a detainee is not satisfied with the consultation, he or she has the right to speak with another lawyer.

The Ontario Court of Appeal has warned that an accused person’s reasons for choosing a lawyer should not be easily second-guessed:

The reasons why clients may choose one lawyer rather than another may vary widely and will often turn on personal preferences or other factors that do not lend themselves to objective measurement. Professional reputation and competence will no doubt be important factors in the choice of counsel, but it would understate the full nature of the relationship to suggest that the choice be limited to those considerations. The very nature of the right is that the subjective choice of the client must be respected and protected. Absent compelling reasons involving the public interest, the government and the courts need not be involved in decisions about which counsel clients may choose to act on their behalf. (R. v. McCallen, [1999] O.J. No. 202, para. 36)

Ottawa DUI and Criminal Lawyer

Charged with drinking and driving, or breath-sample refusal? Contact Brett McGarry to discuss the best strategy for your case.