Fawzia Cockar

The appellant appealed a conviction for operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams, arguing that police breached her Charter s. 10(b) right to counsel by failing to advise her of the availability of French-speaking duty counsel.

The trial judge had found that the appellant understood both English and French, indicated no language preference, and did not raise any concern when speaking with English-speaking duty counsel.

The appellate court held that the police satisfied both the informational and implementational components of the right to counsel and that no special circumstances required further inquiry into language preference.

The court also held that the appellant failed to exercise reasonable diligence in raising any alleged difficulty with counsel.

The conviction was therefore upheld and the appeal dismissed.

The appellant appealed a summary conviction for failing without reasonable excuse to comply with a demand to provide a breath sample under s.254(5) of the Criminal Code.

The appellant argued the trial judge erred by finding he was capable of providing a sample despite evidence he was vomiting, coughing, and complaining of chest pain, and by failing to properly apply the W.(D.) credibility framework.

He also raised a new ground alleging procedural unfairness because the trial proceeded in his absence contrary to s.650(1).

The court held that s.650(1) does not apply to summary conviction trials and that ss.800(2) and 803(2)(a) permitted the trial to proceed in the accused’s absence, particularly where defence counsel consented.

The appellate judge found no error of law or palpable and overriding error in the trial judge’s factual findings and concluded the evidence reasonably supported the conviction.