Impaired driving trial. When arrested at the roadside, and asked about calling a lawyer, accused responded: “not at this moment”. Police officer took this comment as unequivocal. Right to counsel not raised again throughout the investigation. Issue regarding implicit assertion and/or waiver.
Held: No s. 10(b) breach.
Henry, 2004 ABQB 440 (wherein the accused said “not right now”) binding. The accused never asserted her right to counsel, and the investigating officer was of the clear opinion that she understood her rights, and did not request an opportunity to exercise the same. Analysis in Gross, 2012 ABPC 286 adopted. The general wording of the right to counsel conveys to a detainee the ongoing nature of the right (ie, a telephone “will be provided”). The standard 10(b) warning conveys future conduct by police in the event that the accused asserts the right.
C. Millsap – Defence Counsel