In R v Ward,
2020 ONSC 5808, and Jamieson v Her Majesty
the Queen, 2020 NBQB 194, the Ontario Superior Court of
Justice and the Court of Queen's Bench of New Brunswick
considered different aspects of the relationship between an
accused's right to counsel without delay pursuant to s. 10(b)
of the Charter and a motorist's obligation to provide
a breath sample under s. 254(2)(b) of the Criminal Code
(now s. 320.27(1)(b)).
In Ward, the Court reiterated that a
"forthwith" demand for a breath sample by means of an
approved screening device ("ASD") constituted a
reasonable limit on a person's right to consult counsel. In
Jamieson, the Court confirmed that an officer must obtain
the breath sample within a reasonable time after the ASD demand is
made in order for delayed access to counsel to be justified. In
both cases, the courts confirmed that delay will be assessed in the
specific factual circumstances of the case.
