Right to counsel

This pre-trial criminal ruling addressed four applications arising from historical sexual offence charges involving an underage complainant subject to a publication ban.

The court granted the Crown's application to amend the indictment date range to include an earlier alleged incident, but refused to admit evidence of the accused's prior sexual relationship with another underage person as similar fact evidence because its prejudicial effect outweighed its probative value.

The court permitted the defence to lead evidence of the later relationship and family-law dispute between the accused and the complainant, provided the evidence did not focus on sexual activity or invoke twin-myth reasoning under s. 276 of the Criminal Code.

The court also held that the accused's police statement was voluntary and obtained without breach of s. 10(b), although any use of the statement would require editing to conform to the similar fact ruling.

The accused was charged with operating a motor vehicle with excess blood alcohol after being found asleep at the wheel at an intersection.

Upon arrest, the officer delayed reading the right to counsel instruction for seven minutes while securing the vehicle and retrieving notes.

The court found this delay violated the accused's s. 10(b) Charter rights, noting a systemic misunderstanding of the immediacy requirement by the police service.

Applying the Grant framework, the court excluded the breath test results under s. 24(2) due to the seriousness and repetitive nature of the breach, resulting in the dismissal of the charge.

The court also found a s. 8 breach regarding video monitoring of the cell toilet, but dismissed the s. 9 arbitrary detention claim.

The accused was charged with impaired driving, driving over 80, and failing to comply with a recognizance.

The fail to comply charge was dismissed on a directed verdict.

The court found that police breached the accused's s. 10(b) Charter rights by failing to clarify his right to counsel when he showed obvious confusion, and by failing to facilitate contact with counsel of his choice.

Consequently, the breath test results were excluded under s. 24(2) and the over 80 charge was dismissed.

However, based on the officers' observations of the accused at the scene, including being slumped over the wheel, unsteadiness, and a strong odour of alcohol, the court found the accused guilty of impaired driving.

The accused was charged with operating a motor vehicle with a blood alcohol level over the legal limit.

At trial, the accused brought Charter applications alleging breaches of his rights to counsel and privacy.

The court dismissed the s. 10(b) claims, finding the brief delay in providing rights to counsel was justified and the accused freely chose to speak to duty counsel.

However, the court found a s. 8 breach because the accused was video recorded urinating in his cell without reasonable privacy measures.

Applying the Grant framework, the court excluded the breath sample evidence under s. 24(2) due to the seriousness of the police's ongoing failure to address washroom privacy despite prior judicial pronouncements.

The charge was dismissed.

The accused was charged with driving over 80 after failing an approved screening device (ASD) test and providing Intoxilyzer samples almost three times the legal limit.

At trial, the accused applied to exclude the breath evidence under s. 24(2) of the Charter, alleging breaches of his s. 8 and s. 10(b) rights.

The court found no s. 8 breach, as the officer had reasonable suspicion for the ASD demand and reasonable grounds for the Intoxilyzer demand.

The court found a s. 10(b) breach because the police failed to give a Prosper warning when the accused waived his right to counsel after an unsatisfactory call with duty counsel.

However, applying the Grant framework, the court concluded the evidence should not be excluded.

The accused was found guilty.

The accused was charged with driving with excess blood alcohol after losing control of her vehicle and striking a pole.

At trial, she brought a Charter application alleging her s. 10(b) right to counsel was violated at the roadside and at the police station.

The court found no breach at the roadside but concluded a breach occurred at the station when the officer failed to correct her mistaken belief that she could only contact local counsel.

Applying the Grant framework under s. 24(2), the court admitted the breath samples, finding the breach was in the low-moderate range of seriousness and society's interest in adjudicating drinking and driving offences favoured admission.

A finding of guilt was entered.

The accused was charged with impaired care or control and over 80.

She brought a Charter application alleging violations of ss. 8, 9, and 10(b), arguing the arresting officer lacked reasonable and probable grounds and that her right to counsel was infringed due to a staticky phone line when speaking to duty counsel.

The court dismissed the Charter application, finding the officer had ample objective and subjective grounds based on the accused's driving, physical indicia of impairment, and admissions.

The court also found no s. 10(b) violation, as the accused failed to be duly diligent in exercising her rights and indicated to police that she was satisfied with the legal advice received.

The accused was found guilty of the over 80 charge.

The accused was charged with impaired driving and driving over 80 after civilians observed him asleep at the wheel and swerving continuously.

The accused raised Charter challenges under ss. 8, 10(a), and 10(b), and argued breath samples were not taken as soon as practicable.

The court dismissed the ss. 8 and 10(a) claims and found the breath samples were taken expeditiously.

Although the Crown conceded a s. 10(b) breach regarding the implementational duty to wait for counsel of choice, the court admitted the evidence under s. 24(2) because the accused spoke to duty counsel and his counsel of choice never called back.

The accused was found guilty on both counts.

The accused was charged with impaired operation and operating a motor vehicle with a blood alcohol concentration over 80mg.

At trial, the impaired operation count was withdrawn.

The accused brought a Charter application alleging violations of his s. 10(b) right to counsel.

The court found multiple breaches of the accused's right to counsel, including the police officer's failure to properly inform the accused of the police obligation to wait a reasonable time for counsel of choice to call back, failure to wait a reasonable time before contacting duty counsel, failure to facilitate contact with counsel of choice by not searching the internet for alternate numbers, and failure to provide the result of the first breath sample before taking the second.

Applying the Grant framework, the court excluded the breath evidence under s. 24(2) of the Charter and acquitted the accused.

On an application to exclude an accused's police statement in a prosecution involving alleged human trafficking and sexual offences against underage complainants, the court found breaches of ss. 10(a) and 10(b) of the Charter.

Although the accused had been advised he was under arrest for human trafficking and had spoken with counsel, police later questioned him extensively about sexual assault, sexual interference, and invitation to sexual touching without advising him that those offences were under investigation or renewing his right to counsel in relation to that changed jeopardy.

Applying the Grant framework, the court held the breach was serious, significantly impaired the accused's informed choice and right against self-incrimination, and exclusion would not undermine adjudication on the merits because other evidence remained available.

Specified portions of the statement were excluded.

On a summary conviction appeal from a conviction for failing to provide a breath sample, the court held that the trial judge erred in the s. 10(b) Charter analysis.

The trial judge improperly treated the appellant's response of 'yeah, yeah' as an implicit waiver of the right to counsel without the clear and unequivocal waiver required by Prosper, and failed to apply the proper forthwith analysis under Quansah to the roadside screening demand.

The court further held that the resulting statements should be excluded under s. 24(2) applying Grant, because the police conduct seriously infringed a fundamental right.

The conviction was set aside and a new trial ordered.

The applicant sought exclusion of evidence obtained after police entered his home following an emergency report that his young child had wandered onto a major roadway.

The court held the initial entry and protective sweep were authorized under the common law police duty framework applied in emergency child safety situations, but found later Charter breaches when the applicant was detained and questioned without being advised of his right to counsel and when the search continued after the focus shifted to criminal investigation.

Applying the s. 24(2) framework, the court found the breaches were not sufficiently serious or impactful to justify exclusion.

The application to exclude the grow operation evidence was dismissed.

On a blended voir dire in a sexual offence prosecution, the accused sought exclusion of two utterances made at arrest and during transport, and a videotaped police interview, on voluntariness and Charter grounds.

The court applied the confessions rule and held the utterances were spontaneous and voluntary, and the interview statement was also voluntary despite deceptive police comments about consent, which did not rise to community-shocking trickery.

The court found no breach of ss. 10(a), 10(b), or 7 of the Charter, including because the accused was informed of the charges and consulted duty counsel before the interview.

References in the interview to separate child abuse allegations and a Children’s Aid Society investigation were ordered excised as irrelevant.

The appellant was arrested for multiple assaults and asserted his right to counsel.

After failing to reach his lawyer of choice, he consulted with duty counsel and expressed satisfaction with the advice.

During the subsequent police interrogation, he repeatedly requested to speak with a lawyer and have one present, but the police denied these requests and continued questioning until he confessed.

The Supreme Court of Canada dismissed the appeal, holding that s. 10(b) of the Charter does not require the presence of counsel during an interrogation, nor does it require police to provide further opportunities to consult counsel absent a change in circumstances.

The appellant appealed a conviction for possession of cocaine for the purpose of trafficking arising from a street-level police encounter initiated on mere suspicion.

The court held that the police unlawfully detained the appellant, used immigration questioning as a pretext to create grounds for arrest, and then conducted an illegal search incident to that arrest.

The court found breaches of ss. 8, 9 and 10(b) of the Charter and concluded that the seized crack cocaine would not have been obtained absent those violations.

The evidence was excluded under s. 24(2), the conviction was quashed, and an acquittal was entered.

The appellant, a young person, appealed both conviction and sentence.

The conviction appeal alleged error in the finding that the appellant spoke to a lawyer before giving a statement to police, but the court held that finding was supported by multiple police witnesses and noted the appellant did not testify on the voir dire.

On sentence, the court accepted that the offence and the appellant’s conduct warranted a severe sentence, but found reincarceration inappropriate given nearly a year already served, three months of pre-trial detention, and fresh evidence showing the appellant was attending school and doing well.

The sentence was varied to time served with one year of probation on specified terms.

The appellant appealed her conviction on the basis that statements obtained following a breach of her right to counsel should have been excluded.

The court held that the trial judge was entitled to find that the appellant was eager to volunteer information for her own advantage and would have acted the same way even if given the toll-free number.

The court further upheld the finding that the breach was technical rather than serious, with police acting in good faith.

The appeal court concluded that admission of the statements would not bring the administration of justice into disrepute and dismissed the conviction appeal.

The appellant appealed convictions for sexual assault and robbery, a dangerous offender designation, and an indeterminate sentence arising from a violent hotel-room attack.

He argued breaches of the right to counsel and search and seizure protections, challenged the reliability of identification and DNA evidence, and disputed the dangerous offender finding and sentencing analysis.

The Court of Appeal held that the appellant had been properly informed of his rights, had a reasonable opportunity to contact counsel, voluntarily provided the blood sample, and that the identification and DNA evidence were properly assessed.

The court further upheld the dangerous offender finding under s. 753 of the Criminal Code and confirmed that the trial judge properly considered the appellant's lack of responsibility and remorse in assessing dangerousness and treatment prospects.

The appeal was dismissed in its entirety.

The appellant appealed a conviction for importing marijuana arising from a controlled delivery and a subsequent search of her apartment.

The court held that police breached s. 10(b) by questioning the appellant while detained without advising her of the right to counsel, and that later admissions obtained after formal compliance remained temporally, contextually and causally connected to the original breach.

Once those admissions were excised, the information to obtain did not justify the search warrant, rendering the apartment search contrary to s. 8.

The admissions and the seized material were characterized as conscriptive evidence and excluded under s. 24(2).

Without that evidence, the conviction could not stand and an acquittal was entered.

The appellant challenged criminal convictions and argued, among other things, that there had been a breach of s. 11(b) of the Charter.

The Court of Appeal rejected the delay argument but held that the trial judge erred in refusing a brief adjournment after defence counsel was removed from the record on the trial date.

The court found the assumption that any new lawyer would face the same difficulties was unwarranted on the record.

The interests of justice required a short adjournment to permit the accused to retain counsel or prepare to proceed on his own.

Leave to appeal was granted, the convictions were quashed, and a new trial was ordered.