Prosper warning did not have to be given in mechanical fashion

Right to counsel

Prosper warning did not have to be given in mechanical fashion

Accused appealed her conviction for over 80 on grounds she was denied her Charter right to counsel. Officer testified that accused was initially wavering about wanting counsel, decided to contact duty counsel and then accused told him that she just wanted to get on with it. Officer told accused they could wait longer and could speak to counsel “right now” but did not advise accused that police had responsibility to wait. Appeal dismissed. Prosper warning did not have to be given in mechanical fashion. While officer did not say explicitly that police were under obligation to delay taking of breath samples, it was manifest that they would do so if she wished to exercise her right to counsel. It was implicit in what officer said that accused’s right to speak to duty counsel would take precedence over breath testing process which was substantially what Prosper required police to convey to accused.
R. v. Lobo (Oct. 30, 2015, Ont. S.C.J., MacDonnell J., File No. CR-14-10000139-00AP) 125 W.C.B. (2d) 365.