Right to counsel

The appellant appealed her conviction, arguing her s. 10(b) Charter rights were breached.

The Court of Appeal dismissed the appeal, upholding the trial judge's finding that the appellant understood her rights and therefore no breach occurred.

The court further noted that even if a breach had occurred, the breathalyzer results would have been admissible under s. 24(2) of the Charter.

The appellant was convicted of refusing to comply with a roadside demand for a breath sample.

At trial, she testified that a panic attack prevented her from providing a sample.

The trial judge rejected her evidence, relying on her failure to mention the panic attack to the officer at the roadside and on inconsistent statements she made before being advised of her right to counsel.

The Court of Appeal allowed the appeal and ordered a new trial, holding that the trial judge erred by using pre-counsel roadside statements to impeach the appellant's credibility and by using her pre-trial silence to draw adverse inferences against her.

The appellant sought leave to appeal his summary conviction on two grounds related to his right to counsel under s. 10(b) of the Charter.

He argued that s. 10(b) ensures a minimum level of competency from duty counsel and that police should have facilitated a further call.

The Court of Appeal dismissed the application, noting that the Supreme Court of Canada has held police have no obligation to monitor the quality of legal advice, and duty counsel is not a state actor.

The second ground was dismissed due to an insufficient evidentiary record.

The moving parties, two not-for-profit corporations in receivership, sought an interim order allowing their boards of directors to retain counsel for an appeal and directing that the legal fees be paid from the corporations' assets.

The motion judge had previously ruled the boards could not retain counsel without leave of the court or the receiver's approval.

The Court of Appeal granted the motion, holding that the boards' right to pursue the appeal would be hollow without counsel, and ordered that reasonable legal fees be paid from the corporations' assets.

The appellant was convicted of fraud over $5,000 after his trial counsel was removed from the record by an application judge due to unpaid legal fees.

The appellant was forced to represent himself for the remainder of the trial.

On appeal, the Court of Appeal held that the application judge erred in removing counsel absent a fundamental disagreement, serious breakdown in communications, or ethical dilemma.

The removal violated the appellant's right to counsel, and actual prejudice was not required to order a new trial, though prejudice likely existed.

The appeal was allowed and a new trial ordered.

The Law Society and the respondent lawyer brought separate appeals from a Divisional Court decision that set aside a Law Society Appeal Panel's order upholding a finding of professional misconduct and disbarment.

The Divisional Court had remitted the matter to a new hearing panel due to breaches of natural justice.

The Court of Appeal dismissed both appeals.

It held that the Hearing Panel breached natural justice by refusing a brief adjournment to allow the lawyer to be represented by counsel, and by proceeding immediately to the penalty phase without adequate notice.

The Court also upheld the Divisional Court's refusal to stay the proceedings for undue delay, binding the new hearing panel to the original findings on delay up to the start of the first hearing.

The accused was arrested for impaired driving and advised of her right to counsel at the roadside, including the right to free legal advice 'right now'.

She declined to call a lawyer and was not re-advised of her rights upon arriving at the police station.

The trial judge convicted her, but the summary conviction appeal court allowed her appeal, finding the roadside caution misleading.

The Court of Appeal allowed the Crown's appeal and restored the conviction, holding that the use of the word 'now' properly conveys the immediacy of the right to counsel and does not require the officer to specify that the call will be made from the police station.

The appellant was convicted of arson after representing himself at trial.

He had been denied legal aid and his Rowbotham application for state-funded counsel was dismissed by the trial judge, who held that such orders were reserved for cases posing unique challenges.

On appeal, the Court of Appeal found that the trial judge applied too stringent a test.

The case was complex, involving expert witnesses and similar fact evidence, and the appellant lacked the capacity to defend himself effectively.

The Court held that the erroneous denial of counsel resulted in an appearance of unfairness, constituting a miscarriage of justice without the need to prove actual prejudice.

The appeal was allowed and a new trial ordered.

The appellant appealed his conviction and sentence.

On the conviction appeal, he argued that police conducted an unauthorized search and breached his s. 10(b) Charter rights following an investigative detention.

The Court of Appeal declined to entertain the Charter arguments as they were not raised before the trial judge.

Furthermore, the court found that the police's actions did not amount to a search, as the appellant's clothing was in plain view and no pat-down occurred until after his arrest.

On the sentence appeal, the appellant sought a reduction of his 4.5-year sentence to a reformatory term to contest a deportation order.

The court dismissed the sentence appeal, finding the sentence was within an acceptable range and a major adjustment was not warranted.

The appellant appealed his conviction for refusing a breath demand.

He argued he mistakenly believed the demand was for an approved instrument and that he did not have to comply because he had not been informed of his right to counsel.

The Court of Appeal upheld the summary conviction appeal judge's decision, finding that a violation of section 10(b) of the Charter is not a reasonable excuse to refuse an approved instrument demand, though it may result in exclusion of evidence under section 24(2).

The appeal was dismissed.

The accused, a seasonal worker and undischarged bankrupt, refused to accept a conditional legal aid certificate requiring him to make monthly payments of $300, believing he could not afford them.

The motion judge granted a Rowbotham order, finding the conditional offer tantamount to a denial of legal aid.

The Crown appealed.

The Court of Appeal allowed the appeal and set aside the order, holding that the accused's refusal to accept the terms of the certificate did not equate to a denial of legal aid, which is a prerequisite for a Rowbotham order.

The appellant was convicted of first degree murder after stabbing his stepmother 30 times in a parking lot.

He appealed the conviction on several grounds, including the admission of his initial statement to police, the adequacy of jury instructions regarding eyewitness identification, post-offence conduct, the intent required for murder, and the failure to give a complete W. (D.) instruction.

The Court of Appeal dismissed the appeal, finding that the appellant was not detained during his initial police interview, and that while there were minor errors in the jury charge, they did not amount to a reversible error or cause a substantial wrong or miscarriage of justice given the overwhelming evidence of guilt.

The appellant was convicted of producing marijuana after police found a grow operation in a house.

When the appellant pulled into the driveway, an officer detained him and asked if he lived there without first informing him of the reasons for his detention or his right to counsel.

The appellant admitted he lived there.

The trial judge found a Charter breach but admitted the statement.

The Court of Appeal held that the failure to promptly inform the appellant of the reasons for his detention violated s. 10(a) of the Charter.

The admission of the conscriptive statement rendered the trial unfair.

The appeal was allowed, the conviction set aside, and a new trial ordered.

The appellant was convicted of attempted murder and robbery.

On appeal, he argued for the first time that his s. 10(b) Charter rights were violated when police elicited an unrecorded statement from him after he requested counsel but before he was given an opportunity to consult one.

The Court of Appeal allowed the issue to be raised, finding a sufficient evidentiary record and no prejudice to the Crown.

The Court held that subsequent recorded statements, taken after the appellant consulted counsel, were tainted by the initial breach due to their close temporal and contextual connection.

The statements were excluded under s. 24(2) as conscriptive evidence, and a new trial was ordered.

The appellant appealed his conviction, arguing that he did not make an informed waiver of his s. 10(b) Charter rights because he was not told the details of the complainant's allegations.

The Court of Appeal held that the trial judge's findings of fact supported the conclusion of an informed waiver, and that the appellant was not entitled to know the details of the allegations before waiving his right to counsel.

The court also found no error in the jury charge on consent.

The appeal was dismissed.

The appellant appealed his conviction and sentence for assault, arguing he did not understand his right to counsel under s. 10(b) of the Charter.

The Court of Appeal upheld the trial judge's credibility finding that the appellant understood his rights at all material times.

The court also found the sentence was not demonstrably unfit given the serious nature of the assault.

Both the conviction and sentence appeals were dismissed.

The appellant appealed his summary conviction for having care and control of a motor vehicle with a blood alcohol level over 80 milligrams.

He argued that his Charter rights under s. 8 and s. 10(b) were violated, and that the Crown failed to prove care and control.

The Court of Appeal dismissed the appeal, finding that the appellant waived his right to counsel by stating 'I'll blow first' and that there were sufficient grounds to demand a breath sample.

The court also upheld the trial judge's finding of care and control based on the appellant standing beside the vehicle with keys in the ignition.

The appellant was convicted of driving with a blood alcohol level over 80 milligrams.

At trial, she sought to exclude her breath samples under s. 24(2) of the Charter, arguing her s. 10(b) right to counsel was breached because a video camera was present in the room where she spoke to duty counsel.

The trial judge dismissed the motion, finding no evidence the camera was on or monitored, and that the appellant failed to establish a reasonable belief that her privacy was compromised.

The summary conviction appeal court and the Court of Appeal upheld the decision, concluding the appellant did not prove her Charter rights were infringed.

The appellant appealed his convictions for carrying ammunition in a careless manner and possession of a restricted firearm, arguing that the police lacked articulable cause to stop his vehicle and that his Charter rights under ss. 9, 10(a), and 10(b) were violated.

The Court of Appeal upheld the trial judge's finding that the police had articulable cause to stop the vehicle based on a seatbelt infraction and suspicious driving behaviour.

The Court also agreed that although the appellant's s. 10 rights were violated, the real evidence obtained (a firearm and bullets) should not be excluded under s. 24(2) of the Charter as its admission would not bring the administration of justice into disrepute.

The young person appealed a conviction for dangerous driving and the resulting disposition of 30 days open custody, 18 months probation, and a one-year driving prohibition.

The young person, who was self-represented at trial with assistance from a parent, argued that the representation was inadequate, full answer and defence was prevented, and the verdict was unreasonable.

The Court of Appeal dismissed the conviction appeal, finding the trial judge properly assessed the overwhelming evidence of dangerous driving, which included evading a police roadblock and running multiple red lights.

The disposition appeal was allowed in part, reducing the community service requirement from 75 to 25 hours due to the practical hardship it caused the young person's family, with the Crown's consent.