R. v. Prosper
Encyclopedia
R. v. Prosper, [1994] 3 S.C.R. 236 is a decision of the Supreme Court of Canada
on the right to duty counsel
upon arrest
or detainment by police under section 10(b)
of the Canadian Charter of Rights and Freedoms
. The Court found that merely reading the accused his or her rights is insufficient to discharge the right to counsel; the police must also provide the accused with access to legal aid
or duty counsel.
Cyril Prosper was pulled over by the police for driving erratically. The police noticed that he was severely inebriated and arrested him. They read him his rights and provided him access to a telephone and telephone directory to call a lawyer. He declined to call a lawyer in private practice as he said he could not afford it. He then agreed to take a Breathalyzer
test.
At trial Prosper successfully argued that Breathalyzer results were taken in violation of his Charter rights to counsel under section 10(b).
The question before the Supreme Court was first, whether section 10(b) of the Charter imposes a substantive constitutional obligation on governments to ensure that duty counsel is available upon arrest or detention to provide free and immediate preliminary legal advice upon request.
Second, whether the evidence should be excluded under section 24(2)
of the Charter as it would bring the administration of justice into disrepute.
The court unanimously held that the Charter does not impose an obligation to ensure duty counsel is available upon arrest. In a five to three decision the Court held that the evidence should be excluded.
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
on the right to duty counsel
Duty counsel
In Ontario, Canada a duty counsel is a lawyer paid by Legal Aid Ontario who provides limited legal services in criminal, family law and child protection matters to people who arrive at court without representation, mainly in the Ontario Court of Justice....
upon arrest
Arrest
An arrest is the act of depriving a person of his or her liberty usually in relation to the purported investigation and prevention of crime and presenting into the criminal justice system or harm to oneself or others...
or detainment by police under section 10(b)
Section Ten of the Canadian Charter of Rights and Freedoms
Section Ten of the Canadian Charter of Rights and Freedoms specifies rights upon arrest or detention, including the rights to consult a lawyer and the right to habeas corpus. As a part of a broader range of legal rights guaranteed by the Charter, section 10 rights may be limited by the Oakes test...
of the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
. The Court found that merely reading the accused his or her rights is insufficient to discharge the right to counsel; the police must also provide the accused with access to legal aid
Legal aid
Legal aid is the provision of assistance to people otherwise unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial.A number of...
or duty counsel.
Cyril Prosper was pulled over by the police for driving erratically. The police noticed that he was severely inebriated and arrested him. They read him his rights and provided him access to a telephone and telephone directory to call a lawyer. He declined to call a lawyer in private practice as he said he could not afford it. He then agreed to take a Breathalyzer
Breathalyzer
A breathalyzer or breathalyser is a device for estimating blood alcohol content from a breath sample...
test.
At trial Prosper successfully argued that Breathalyzer results were taken in violation of his Charter rights to counsel under section 10(b).
The question before the Supreme Court was first, whether section 10(b) of the Charter imposes a substantive constitutional obligation on governments to ensure that duty counsel is available upon arrest or detention to provide free and immediate preliminary legal advice upon request.
Second, whether the evidence should be excluded under section 24(2)
Section Twenty-four of the Canadian Charter of Rights and Freedoms
Section Twenty-four of the Canadian Charter of Rights and Freedoms provides for remedies available to those whose Charter rights are shown to be violated...
of the Charter as it would bring the administration of justice into disrepute.
The court unanimously held that the Charter does not impose an obligation to ensure duty counsel is available upon arrest. In a five to three decision the Court held that the evidence should be excluded.