Is a police force required to provide a proper warning to an accused who has made a reasonable effort to obtain independent legal advice?

Ontario, Canada


The following excerpt is from R. v. Desrosiers, 2005 ONCJ 212 (CanLII):

[2] The defendant has brought a Charter application alleging that his section 10(b) Charter rights have been violated in that the police failed to provide him with a proper “Prosper” warning [Prosper v. The Queen, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236, 92 CCC (3d) 353 (SCC)] after he agreed to allow the breath tests to be taken into the Intoxilyzer 5000C after it became apparent that duty counsel, whom he tried to contact for independent legal advice, was not readily available after a considerable delay in waiting for duty counsel to call back. This case therefore puts into issue whether the police are obliged to provide a special warning to an accused person after an accused person has made a reasonable effort to obtain independent legal advice and then has not been able to secure such independent legal advice on account of unavailability of duty counsel to respond to give him timely advice.

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