A. Burgess

This is an addendum to a trial judgment addressing a Charter breach issue that the trial judge initially failed to apply to certain charges.

The accused was charged with impaired driving, refusal to provide a breath sample, obstruction of police, breach of recognizance (two counts), simple possession of cocaine, possession of cocaine for trafficking, possession of fentanyl for trafficking, and possession of proceeds of crime.

The trial judge initially found the accused guilty on five charges but failed to apply the defence's Charter application under s. 10(b) and s. 24(2) to those charges.

Upon realizing this error during sentencing, the judge reopened the convictions to apply the Charter analysis.

The judge found that police breached the accused's right to counsel at the police station and excluded evidence on certain charges, resulting in acquittals on simple possession of cocaine, breach of recognizance for drug possession, and refusal to provide a breath sample.

The accused remained convicted on impaired driving, obstruction of police, and breach of recognizance for curfew violation.

The accused was charged with impaired driving, refusing to provide a breath sample, obstructing police, failing to comply with recognizance conditions, simple possession of cocaine, possession of cocaine for trafficking, possession of fentanyl for trafficking, and possession of proceeds of crime.

The Crown proved impaired driving, refusal to provide breath sample, obstruction, and recognizance breaches beyond a reasonable doubt.

However, the court found that police breached the accused's right to counsel under s. 10(b) of the Charter by failing to provide a reasonable opportunity to contact counsel immediately upon arrest for the trafficking charges and by ignoring a request to contact a friend with a lawyer.

The court excluded evidence of drugs found under the police cruiser seat under s. 24(2) of the Charter, resulting in acquittals on the trafficking and proceeds charges.

The accused was convicted of impaired driving and the admitted charges.

The appellant sought to quash convictions for sexual interference arising from allegations that he repeatedly touched a child complainant under her clothing during family tickling incidents at a cottage.

The appeal argued that the trial reasons were insufficiently responsive to the defence theory of mistake, that the trial judge materially misapprehended the evidence, and that demeanour evidence was given undue weight.

Applying the functional sufficiency-of-reasons approach and reviewing the credibility analysis, the court held that the trial judge adequately addressed the live issues, made no material misapprehension, and did not over-rely on demeanour.

The appeal was dismissed and the surrender order was confirmed.