Right to counsel

The appellant appealed his convictions for possession of fentanyl and cocaine for the purpose of trafficking and possession of proceeds of crime.

The appeal raised four grounds: (1) whether the first case management judge erred in denying leave to cross-examine the affiant; (2) whether the second case management judge erred in dismissing the motion to relitigate the cross-examination application; (3) whether the application judge erred in rejecting the Charter section 8 challenge to the search warrant; and (4) whether the application judge erred in admitting evidence despite a violation of the appellant's section 10(b) rights.

The Court of Appeal dismissed all grounds of appeal and upheld the convictions.

The accused was charged with operating a motor vehicle with a blood-alcohol concentration exceeding the legal limit contrary to section 320.14(1)(b) of the Criminal Code.

The accused brought a Charter application to exclude breath sample evidence, alleging multiple breaches of his rights including: (1) arrest and approved instrument demand without reasonable grounds; (2) delayed notification of the right to counsel; (3) failure to facilitate access to counsel at the roadside and counsel of choice at the station; and (4) video recording of cell toilet use.

The court found one Charter breach—a nine-minute delay in informing the accused of his right to counsel—but admitted the evidence under section 24(2) of the Charter, finding that exclusion would harm the administration of justice more than admission.

The accused was found guilty.

The appellant was convicted of multiple firearm-related offences following a trial in the Ontario Court of Justice.

The Crown's case relied heavily on two statements made by the appellant to police on May 18, 2020.

The appellant appealed, arguing that he was detained during the execution of a search warrant at his residence without being advised of his rights under the Canadian Charter of Rights and Freedoms, and that his subsequent arrest was unlawful.

The Court of Appeal found that the trial judge erred in concluding the appellant was not psychologically detained when police questioned him in the garage of his home during the search warrant execution.

The court held that the appellant's ss. 10(a) and 10(b) Charter rights were violated, and that his arrest was consequently unlawful, constituting a breach of s. 9.

However, applying the s. 24(2) test, the court determined that the statements should not be excluded from evidence, as the admission would not bring the administration of justice into disrepute.

The appeal was dismissed.

The defendant was charged with refusing to comply with a breath demand under section 320.15(1) of the Criminal Code.

The trial involved a directed verdict application and a Charter application alleging violations under sections 7, 8, 9, 10(a), and 10(b).

The court found that while the directed verdict application was dismissed, the defendant's refusal to provide a breath sample was provisional only, pending access to counsel.

The police failed to meet the reasonable diligence standard by denying the defendant's repeated requests for access to the internet to find private counsel.

The court found no actus reus for the refusal offence and acquitted the defendant.

The accused was charged with an Over 80 offence following a RIDE program stop.

The accused alleged that the arresting officer steered him towards duty counsel after arrest, thereby breaching his constitutionally guaranteed right to counsel of choice.

The Crown conceded that steering occurred but argued it did not constitute a breach.

The court found that the officer's imprecise and careless communications misled the accused about the scope of his right to counsel of choice.

The officer failed to provide reasonable opportunities to contact alternative counsel and failed to adequately respond to the accused's expressed dissatisfaction with duty counsel.

The court found a breach of section 10(b) of the Charter and excluded the breath test evidence, resulting in an acquittal.

The defendant was charged with care or control of a motor vehicle while over 80 milligrams of alcohol per 100 millilitres of blood, contrary to section 253(1)(b) of the Criminal Code.

The defendant challenged the admissibility of breath test results on three grounds: (1) breach of section 10(b) Charter rights to counsel; (2) failure to comply with the "as soon as practicable" requirement under section 258(1)(c) of the Criminal Code; and (3) loss of the presumption of accuracy under section 320.31(1).

The court found a breach of the right to counsel but admitted the evidence under section 24(2) of the Charter.

The court found the breath samples were taken as soon as practicable despite a 14-minute delay at the police station.

The court found the breath test results admissible at common law and reliable, and convicted the defendant.

The accused was charged with impaired driving and driving with a blood alcohol concentration exceeding 80 milligrams per 100 millilitres of blood following a motor vehicle collision.

The defence raised multiple Charter applications challenging the lawfulness of the arrest, the failure to preserve video evidence, and alleged breaches of the right to counsel.

The court dismissed all Charter applications and found the accused guilty on both charges, though a conditional stay was entered on the impaired driving charge.

The court found the officer had reasonable and probable grounds to arrest based on observations of impairment, that the loss of video evidence did not breach the accused's right to make full answer and defence, and that the right to counsel was not breached.

The accused was charged with impaired care and control of an automobile and over 80 while having care and control of an automobile arising from an incident on February 16, 2018.

The Crown alleged the accused was observed driving erratically on Highway 401 during rush hour, leading to a traffic stop where the officer observed signs of impairment including the odour of alcohol, dilated pupils, and bloodshot eyes.

The accused was arrested and provided with Duty Counsel at the station.

The accused subsequently requested to call his own lawyer, which request was denied by the breath technician.

The court found no breach of Charter section 10(b) rights based on the accused's concession that he had no issue with the advice given by Duty Counsel, despite his discomfort speaking with a stranger.

The breath test readings were 152 and 149.

The court found the accused guilty of over 80 but not guilty of impaired driving, finding the indicia of impairment minimal and insufficient to prove impairment beyond a reasonable doubt.

The accused was sentenced to a $1,000 fine with one year to pay and a one-year driving prohibition.

The accused was charged with operation of a motor vehicle with a blood alcohol concentration exceeding 80 mg% contrary to s. 253(1)(b) of the Criminal Code.

The Crown relied on breath samples obtained via an approved instrument.

Three main legal issues emerged at trial: (1) whether the presumption of identity under s. 258 of the Criminal Code applied following the repeal of that section by Bill C-46; (2) whether the Crown satisfied the requirements of s. 320.31 regarding the presumption of accuracy without producing a certificate of analyst; and (3) whether the accused's rights under s. 10(b) of the Canadian Charter of Rights and Freedoms were violated when police failed to diligently pursue contact with her counsel of choice before offering duty counsel.

The court found that s. 258 remained applicable to legacy charges, that the presumption of accuracy was established through qualified technician testimony, and that while a Charter violation occurred, the breath evidence was admissible under s. 24(2) analysis.

The accused was convicted.

The applicant, charged with drug trafficking, brought a pre-trial motion (voir dire) to exclude three statements made to police (roadside, video, off-video) and evidence obtained via a search warrant, alleging violations of his Charter rights to counsel and unreasonable search and seizure, and lack of reasonable and probable grounds for arrest.

The Crown sought to admit the statements.

The court found the roadside statement inadmissible due to a Charter s. 10(b) violation.

However, the video and off-video statements were deemed voluntary and admissible, as the applicant had consulted duty counsel and did not diligently indicate inadequate advice or a change in circumstances to re-trigger the right to counsel of choice.

The court also found that reasonable and probable grounds for arrest existed and upheld the search warrant, despite a minor inaccuracy in the Information to Obtain, as sufficient information remained to authorize it.

The appellant, Rahman Wahab, appealed his conviction for operating a motor vehicle with excess blood/alcohol, arguing that his s. 10(b) Charter right to counsel of choice was violated.

The trial judge had misapprehended the timing of the appellant's assertion of this right.

However, the appeal court found that the appellant was not reasonably diligent in communicating his request for specific counsel, and the police had made reasonable efforts to facilitate counsel.

Therefore, no s. 10(b) Charter violation occurred.

Even if there had been a breach, the breath sample analyses would not be excluded under s. 24(2) of the Charter, given the minimal impact on rights and the strong societal interest in adjudicating drinking and driving cases.

The appeal was dismissed.

The applicant, Adrian Rover, sought to exclude evidence under sections 8, 9, 10(b), and 24(2) of the Charter of Rights and Freedoms, alleging unlawful arrest, an invalid search warrant based on illegally obtained third-party information, and a violation of his right to counsel.

The court found that the police had reasonable and probable grounds for Rover's arrest and for the arrest of third parties, thus upholding the validity of the search warrant.

While acknowledging a breach of Rover's right to counsel due to police delay, the court applied the Grant analysis and determined that the admission of the evidence would not bring the administration of justice into disrepute, dismissing the application to exclude evidence.

Jarrett Sauve, charged with various weapons offences, challenged the admissibility of his utterances and videotaped statement to police.

The applications were based on alleged violations of his right to counsel under section 10(b) of the Charter and involuntariness under the common law confessions rule.

The court conducted a voir dire and found that initial utterances to D/Cst.

McGillis were made when Sauve was not detained, thus no Charter breach.

Utterances to Cst.

St-Amand were deemed spontaneous, and no Charter breach was found.

For the videotaped statement, the court concluded that Sauve had waived his right to counsel and that the statement was voluntary, not induced by threats or oppression.

Consequently, all challenged statements were ruled admissible.

John Paul Budarick appealed his conviction for impaired operation of a motor vehicle.

The appeal raised two grounds: whether the trial judge erred in finding that Constable Crowhurst had the subjective belief required to make a blood demand under s. 254(3)(a)(ii) of the Criminal Code, and whether the trial judge erred in concluding there was no s. 10(b) Charter violation when police did not offer a second opportunity to consult counsel after making a blood demand following a breath demand.

The court dismissed the appeal, finding no error in the trial judge's conclusions on either ground.

The applicant sought an order to release seized funds for legal fees and a declaration that s. 462.37(3) of the Criminal Code violates Charter rights if applied to such fees, creating a conflict of interest for counsel.

The Crown resisted, arguing lack of jurisdiction and prematurity for the constitutional issue.

The court found jurisdiction to release the funds, distinguishing previous case law, and determined the applicant had no other means to pay.

However, the court dismissed the declaratory relief, deeming the constitutional question premature as several contingencies must occur before s. 462.37(3) could apply, and emphasized that an offender truly unable to pay a fine in lieu of forfeiture would not face incarceration.

The defendant was charged with impaired driving causing bodily harm after a single-vehicle accident where his car struck a house, injuring his passenger.

The Crown presented evidence of the defendant's blood alcohol concentration (BAC) and the circumstances of the accident, including his attempt to hide beer bottles.

The defence argued a Charter s. 10(b) breach regarding privacy during legal consultation at the hospital and offered an alternative explanation for the accident involving the passenger grabbing the steering wheel due to a cat on the road.

The court dismissed the Charter argument, finding police took reasonable steps for privacy in an emergency setting.

The court also rejected the defence's explanation for the accident, finding the passenger's testimony unreliable and accepting her prior inconsistent statement to a witness as substantive evidence.

The court concluded that the defendant's ability to operate the vehicle was impaired by alcohol, which was a significant contributing cause of the accident and the passenger's injuries, and found the defendant guilty.

The accused was charged with driving with excess alcohol in his system after police responded to a trouble call at a restaurant.

The court found that the accused's Charter rights under sections 8, 9, and 10(b) were violated through unlawful detention and search.

The initial detention by the first officer lacked lawful justification, being based on a vague safety concern rather than investigative grounds.

The subsequent detention and search by two other officers, who stopped and searched all vehicles leaving the scene, was excessive and unjustified given the nature of the incident (a fight with a bottle, not a weapons offense).

The accused was not informed of his right to counsel during the detention related to the fight investigation.

The breath samples were obtained as a direct result of these unlawful detentions and were excluded under section 24(2) of the Charter.

Without the breath evidence, the Crown could not prove the charge.

The accused was charged with refusing a roadside screening demand after being pulled over for traffic violations.

The Crown alleged the accused unequivocally refused to provide a breath sample.

The court found that while the accused was legally obliged to comply with the demand, she was operating under a mistaken understanding of her legal rights and was confused rather than defiant.

The accused repeatedly requested access to counsel, which was not facilitated.

The court found a reasonable doubt existed as to whether the refusal was complete and unequivocal, particularly given the accused's confusion, her requests for legal advice, and the availability of counsel that could have clarified her obligations.

The charge was dismissed.

This is a child protection proceeding under the Child and Family Services Act involving a crown wardship application.

The respondent father, who is self-represented and receiving Ontario Disability Support Program benefits, sought a legal aid certificate to retain counsel for trial.

Legal Aid Ontario refused to issue a certificate.

The court held that the father has a constitutional right to counsel under section 7 of the Canadian Charter of Rights and Freedoms and that all four criteria from New Brunswick v. J.G. are satisfied.

The court adjourned the hearing to allow Legal Aid Ontario and the Attorney General to make submissions on the court's motion to appoint publicly funded counsel.

The accused was charged with operate over 80 following a traffic stop.

The Crown sought to rely on breath sample readings from an Intoxilyzer device.

The court found that the accused's section 10(b) Charter rights were breached with respect to facilitation of the right to speak to counsel of choice.

The police failed to adequately facilitate contact with counsel of choice and instead imposed duty counsel upon the accused.

The court excluded the breath sample evidence under section 24(2) of the Charter, finding that admission would bring the administration of justice into disrepute.

The accused was acquitted.