The accused brought an application to exclude a confession to police on the basis that his right to retain and instruct counsel without delay under s. 10(b) of the Charter was breached.
The accused had requested a specific lawyer who was unavailable, and police waited approximately forty minutes before commencing an interview without providing a Prosper warning.
The court held that the accused did not effectively waive his right to counsel and that a Charter breach occurred because police failed to provide a reasonable opportunity to contact counsel.
However, applying the s. 24(2) framework in R. v. Grant, the court admitted the statement, finding the police conduct was not deliberate and that society’s interest in adjudicating a serious home invasion offence outweighed the breach.
