SECTION 10(B) - RIGHT TO COUNSEL - NOT ASKING "DO YOU WISH TO CALL A LAWYER?" NOT A BREACH

Mr. Knoblauch was arrested for impaired driving and read his rights to counsel.  The patrol car video showed that he had not been asked the question “Do you wish to call a lawyer?”. Once they got to the detachment Mr. Knoblauch was asked “if he wanted to call a lawyer” and he said “No”. There was a conviction at trial but, on appeal, a breach was found due to the officer not asking the question “Do you wish to call a lawyer?”. However the Saskatchewan Court of Appeal restored the conviction and repeated some important guidelines:

It is now well settled that s. 10(b) imposes certain duties on police officers when arresting or detaining individuals, namely: (a) to inform a detainee, without delay, of his or her right to retain and instruct counsel; (b) if a detainee has indicated a desire for counsel, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and (c) to refrain from questioning or otherwise attempting to elicit evidence from a detainee until he or she has had a reasonable opportunity to consult and retain counsel (except in urgent and dangerous circumstances). The first duty identified has been described as an informational one, while the second and third duties are implementational in nature and “are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel” (emphasis added). R. v. Knoblauch, 2018 SKCA 15