Right to counsel

The child, who was the subject of a high-conflict custody and child protection dispute, ran away and sought assistance from a legal clinic.

The father obtained an urgent motion order restraining the legal clinic and its lawyer from representing or contacting the child.

The legal clinic and the child appealed.

The Divisional Court allowed the appeal, finding that the motion judge erred by conflating a child's right to standing in a proceeding with their fundamental right to seek independent legal advice.

The court held that children are entitled to seek legal advice without permission from their parents or the court.

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 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 based in part on DNA evidence and a statement he made to police.

On appeal, he argued his s. 10(b) Charter right to counsel was breached when police questioned him before he had a reasonable opportunity to consult his counsel of choice.

The Court of Appeal agreed, finding the police failed to hold off questioning after the appellant indicated he was still trying to reach his lawyer.

The court concluded the statement was conscriptive evidence that should have been excluded under s. 24(2) of the Charter.

The appeal was allowed and a new trial ordered.

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 police officer was found guilty of neglect of duty for delaying a detainee's right to counsel for 90 minutes after the initial justification for the delay (officer safety) had passed.

The Hearing Officer imposed a reprimand, but the Ontario Civilian Commission on Police Services substituted a six-month reduction in rank.

On appeal, the Divisional Court found the Commission's decision unreasonable, as it failed to consider mitigating factors and wrongly concluded that a reprimand was an unavailable penalty for a Charter breach.

The appeal was allowed and the reprimand restored.

The appellant appealed his conviction, arguing the trial judge erred in refusing an adjournment when he attended the trial date with newly retained counsel, forcing him to proceed unrepresented during the Crown's case.

The Court of Appeal dismissed the appeal, finding that although the trial judge might have made further inquiries before refusing the adjournment, the fairness of the trial was not compromised.

The trial judge granted a lengthy adjournment after the Crown's case, allowing the appellant to retain counsel who was provided with transcripts and disclosure, and who subsequently recalled a Crown witness and presented the defence.

The appellant appealed a Summary Conviction Appeal Court decision that set aside her acquittal.

The appellant argued her s. 10(b) Charter rights were breached because she misunderstood her right to contact her own lawyer rather than duty counsel at the roadside.

The Court of Appeal dismissed the appeal, holding that an unexpressed desire to speak to one's own lawyer, which is not conveyed to the investigating officer, cannot result in a s. 10(b) breach.

The appellant appealed his conviction, arguing that the trial judge erred in his Charter analysis under ss. 9, 10(a), 10(b), and 24(2).

The Court of Appeal upheld the trial judge's findings that the detention was appropriate until the scene was secured, and that despite breaches of ss. 10(a) and 10(b), the violations were not sufficiently serious to merit the exclusion of the drug evidence.

The appeal was dismissed.

The Crown appealed an acquittal for operating a vehicle 'over 80'.

The accused was stopped and a roadside breath demand was made, but the officer had to wait 16 minutes for a screening device to arrive.

During this time, the accused was not advised of his right to counsel, despite having a cellular phone and being near a police station.

The Court of Appeal dismissed the Crown's appeal, holding that because the officer was not in a position to require a breath sample before there was a realistic opportunity to consult counsel, the demand was not made 'forthwith' under s. 254(2) of the Criminal Code, and the failure to provide s. 10(b) Charter rights was not justified.

The appellant appealed his sexual assault conviction, arguing the court should have appointed counsel after he was denied Legal Aid.

The Court of Appeal found no error, noting the appellant's failure to cooperate with his initial lawyer or provide required financial information to Legal Aid.

The trial judge had appointed counsel to cross-examine the complainant and provided appropriate assistance to the self-represented appellant.

The Court also dismissed grounds of appeal relating to the admission of expert evidence on aboriginal healing practices and other evidentiary rulings.