BC Criminal Defence Lawyer Blog

No right to a criminal lawyer before roadside breathalyzer

Section 10(b) of the Canadian Charter of Rights and Freedoms states:

Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.

The obvious question arises:  Am I entitled to talk to a lawyer before providing a breath sample and/or performing a roadside sobriety test?

Short answer:  no.

The Supreme Court of Canada addressed this matter in the case R. v. Orlanski [2005] SCJ No. 37.  Canada's top court found that, yes, being pulled over and asking to provide a breath sample is being detained, and therefore one is entitled to a lawyer.  However, section 1 of our Charter states that our guaranteed rights are subject to reasonable limits declared by law.

Section 254 of the Criminal Code of Canada, which sets out Canada's criminal offences, declares that upon suspicion of impaired driving a police officer can demand a breath sample and/or demand a roadside sobriety test.  Section 254 is a law that limits the 'right to counsel' Charter right.  What our top court decided was that demanding a breath sample and/or roadside sobriety test without an opportunity to contact a lawyer is a reasonable law.

What this means is that one is not entitled to talk to a lawyer before breathing into a roadside breathalyzer and/or performing a roadside sobriety test.