Drunk Driving Charges: “Can I talk to a lawyer?” - Nova Scotia Criminal Defence lawyer explains

Probably the most common criminal charges people call us about are charges for impaired driving, or “over 80” or driving under the influence (“DUI”).  All of these terms refer to the same type of situation: being behind the wheel when you are too drunk to drive.

Long term consequences

The consequences of a drunk driving conviction can be serious and lasting. Depending on the circumstances of your case:
  • You can lose your driver’s licence;
  • You may have to pay a fine; or
  • You can be sent to prison.
A criminal conviction can also impact your job and your ability to travel since you may not be able to cross the border.

“What are my rights?”

If you have been arrested for impaired driving you have certain legal rights. These legal rights are so important that they have even been written into the Canadian constitution. It is the responsibility of the arresting officer to ensure that you know and understand your rights.

Constitutional rights

The Canadian Charter of Rights and Freedoms, part of our constitution, states:

s.10 - Arrest or detention - Everyone has the right on arrest or detention:
(b) to retain and instruct counsel without delay and to be informed of that right.

What this means is that if you have been arrested, you have the right to talk to a lawyer.

Duty to tell you

It is the police officer’s duty to inform you of your legal rights under the Charter. This is called the “informational duty”. In other words, if you are arrested, the police have to tell you that you have the right to talk to a lawyer.

Duty to help you

The police also have a duty to help you exercise your legal rights under the Charter. This is called the implimentational duty. In other words, if you are arrested, the police have a duty to help you contact a lawyer.

Timing is everything

If you have been arrested, when do the police have to tell you about your rights under section 10(b) of the Charter?

Protecting the vulnerable 

The purpose of s. 10(b) of the Charter is to protect people when they are most vulnerable. In the case of drunk driving charges, this often happens when you are detained or arrested by the police.

Ensuring that people have the right to retain and speak to a lawyer has two general goals.

Freedom and liberty

The right to speak to a lawyer is designed to help protect people who have been detained regain their freedom or liberty. In other words, you should not have to be detained by the police if you have not broken the law.

Protection from self-incrimination

Everybody who has watched television or the movies has heard the phrase: “You have the right to remain silent”. What that means is that you do not have to say anything or do anything to help the police convict you. This is referred to by lawyers and the courts as the “risk of self-incrimination”.

So in order to protect your freedom and to protect you against self-incrimination, the Canadian Charter makes sure you have the right to speak to a lawyer after you have been detained or arrested.

“When can I talk to a lawyer?”

The whole point of the Charter is to protect people against the risk of involuntary self-incrimination.

The concerns about self-incrimination and the interference with personal freedom that s. 10(b) are designed to protect against arise as soon as you are detained or arrested.
So if the Charter’s right to counsel is to serve its intended purpose, the police must inform you of your right to counsel immediately, as soon as the detention arises.

An example

In one case we defended, our client was driving home. He was stopped by the police and detained at the roadside shortly after 1:19 AM. The officers asked him questions about his sobriety and searched his vehicle. He was only informed of his legal rights at 1:43 AM, after approximately a 20 minute delay.

We argued that the evidence the police obtained when they questioned our client should not be admissible in court for some common sense reasons:
  • Considering the intimidating nature of being detained by the police any statements made by our client couldn’t be regarded as voluntary in any meaningful way;
  • Our client was vulnerable due to the intimidation created from being detained by the police;
  • Since our client wasn’t told of his rights when he was detained, any decision he made about talking to the police could have been the result of intimidation.

Supreme Court of Canada

In our written arguments we pointed out that the Supreme Court of Canada has addressed the question of when the right to counsel arises. For example in R. v. Grant the court had this to say:

[58] In R. v. Suberu, 2009 SCC 33 (CanLII), 2009 SCC 33, [2009] 2 S.C.R. 460, we conclude that the s. 10(b) right to counsel arises immediately upon detention, whether or not the detention is solely for investigative purposes.  That being the case, s. 10(b) of the Charter required the police to advise Mr. Grant that he had the right to speak to a lawyer, and to give him a reasonable opportunity to obtain legal advice if he so chose, before proceeding to elicit incriminating information from him. Because he now faced significant legal jeopardy and had passed into the effective control of the police, the appellant was “in immediate need of legal advice”: R. v. Brydges, 1990 CanLII 123 (S.C.C.), [1990] 1 S.C.R. 190, at p. 206.  Because the officers did not believe they had detained the appellant, they did not comply with their obligations under s. 10(b).  The breach of s. 10(b) is established.

What happened to our client?

As a result of the written brief we filed on behalf of our client, the Crown decided not to call any evidence at his trial. Since there was no evidence that could be used to convict our client, he was acquitted of the charges.

Have more questions?

If you have been charged with drunk driving, impaired driving, "over 80" or driving under the influence, call Ian Hutchison toll free in Atlantic Canada at 1-877-423-2050 or at 423-2050 in Halifax.