The recent Supreme Court of Canada decision in R. v. Suter 2018 SCC 34 and the Court of Appeal for Ontario decision in R. v. Culotta  O.J. No. 3946 (C.A.) caused me to reflect on the nature of the legal advice given in the impaired driving/over 80 context. What is the appropriate advice to give to a detainee faced with a demand for a breath or blood sample? And what advice can we give a client who is facing an impaired driving/over 80 investigation who is also receiving medical treatment?
R. v. Suter
Mr. Suter was investigated for impaired driving causing death in unusual circumstances. He had accidentally driven his car forward by placing his foot on the gas instead of the brake in a moment of inattention. He crashed into a patio and killed a two-year-old child. When the police arrived they made a breath demand believing he was impaired. Mr. Suter contacted free duty counsel. The substance of the legal advice provided was described by the sentencing judge. It was brief. The lawyer did not ask how much, if anything, Mr. Suter had had to drink. The advice was full of legal jargon that Mr. Suter had a hard time understanding. The lawyer ultimately “basically told him not to blow.”
The Supreme Court of Canada accepted that this was “bad legal advice,” which the accused followed resulting in him not complying with the demand and being charged with refusing to comply together with other offences. In the end he pleaded guilty to refusing to comply and all impaired driving offences were withdrawn.
Duty counsel was unaware at the time that s.255(3.2) of the Criminal Code provided for the maximum period of imprisonment for life for refusing a breath demand in circumstances where there was a death associated with the driving incident that gave rise to the breath demand (i.e. the same penalty as over 80 cause death or impaired cause death.) But was the substance of the advice provided by duty counsel necessarily “bad advice” in this context notwithstanding the perfunctory nature of it?
R. v. Culotta
Ms. Culotta was operating a motorized boat when it collided with a small rocky island in bad weather. Two other boaters were seriously injured in the accident. The accused was also injured and required medical assistance. The investigating officer made observations consistent with impairment while the accused was in the ambulance. She was arrested for impaired operation although not cautioned nor provided with her right to counsel right way. Ultimately the accused was provided with her rights to counsel but did not consult counsel before getting medical treatment which included blood work being taken to determine her blood alcohol level. The arresting officer also asked that extra blood be drawn for a potential search warrant.
Blood analysis ultimately confirmed that the accused was over the legal limit and that evidence led to her conviction although the accused sought exclusion alleging ss.8, 9 and 10(b) Charter violations.
Although the accused did not speak to counsel before blood was drawn and before providing a statement to the police, the Court of Appeal pondered the question of what advice might have been given at the hospital, but concluded at paragraphs 52 -53 that no s. 10(b) right was invoked or breached.
If Ms. Culotta had sought legal advice from duty counsel or otherwise, what advice ought to have been given? If the police had made a breath demand, would the best advice be to simply comply with the demand? Would it be “bad advice” to suggest she may not want to comply with the breath demand?