Kevin McKenna

The applicant sought the extraordinary remedy of certiorari to quash a completed criminal trial in which he had been required to represent himself after an adjournment request was denied.

The applicant argued that the denial of the adjournment and the requirement to proceed without counsel amounted to a denial of natural justice and jurisdictional error.

The court held that the trial judge’s decision to deny the adjournment was an exercise of judicial discretion within jurisdiction.

Because the merits of the case had been tried and findings were made on the essential elements of the offences, the proper remedy was an appeal rather than certiorari pursuant to s. 776 of the Criminal Code.

The application for certiorari was therefore dismissed.

The accused was charged with impaired operation of a motor vehicle and failure or refusal to comply with a breath demand.

The accused challenged the arrest and breath demand on Charter grounds, alleging lack of reasonable and probable grounds and breach of right to counsel.

The court found reasonable and probable grounds existed for the arrest and that the accused's right to counsel was adequately protected despite officers remaining visible outside a partially open hospital observation room door.

The court found the accused guilty of failure to comply with the breath demand based on his willful and voluntary failure to provide an adequate sample, and guilty of impaired driving based on the totality of the evidence and the adverse inference from his refusal to provide a breath sample.