COURT OF APPEAL FOR ONTARIO
Laskin, MacPherson and Karakatsanis JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Walter Beierl
Appellant
Anthony Moustacalis, for the appellant
Phil Perlmutter, for the respondent
Heard: October 20, 2010
On appeal from the decision of the summary conviction appeal court dated June 29, 2009 by Justice R. Cary Boswell of the Superior Court of Justice, dismissing the appeal from the conviction entered on June 19, 2007 by Justice Peter Bourque of the Ontario Court of Justice.
APPEAL BOOK ENDORSEMENT
Introduction
1The appellant seeks leave on two grounds: first, whether the guarantee of the right to counsel under s. 10(b) of the Charter ensures a minimum level of competency; and second, whether on this record, the police had a legal obligation to facilitate a further telephone call between the appellant and duty counsel.
Analysis
2In our view, neither ground warrants granting leave. The first ground of appeal is largely foreclosed by the recent judgment of the Supreme Court of Canada in R. v. Willier, 2010 SCC 37, [2010] S.C.J. No. 37 where, at para. 41, the majority held that the police have no obligation under s. 10(b) to monitor the quality of the legal advice received by a detainee from duty counsel.
3The alternative argument that duty counsel himself (or herself) is a state actor and is required by s. 10(b) to give basically competent legal advice runs counter to the reasoning of our colleague, Gillese J.A., in R. v. Pea, 2008 CanLII 89824 (ON CA), [2008] O.J. No. 3887, reasoning with which we concur. Thus, we decline to grant leave on the first ground.
4On the second ground, we agree with the Crown that there is not a proper evidentiary record to consider the issue. The issue was not raised at trial, and thus the Crown did not have an opportunity to explore matters that might reasonably bear on this issue. Leave to appeal on this second ground is therefore also refused.
Disposition
5Accordingly, the application for leave to appeal is dismissed.