CITATION: R. v. Traicheff, 2010 ONCA 851
DATE: 20101214
DOCKET: C49592
COURT OF APPEAL FOR ONTARIO
Winkler C.J.O., Laskin and Goudge JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Jeffrey Traicheff
Appellant
Joseph A. Neuberger, for the appellant
Greg Skerkowski, for the respondent
Heard and released orally: December 8, 2010
On appeal from the decision of the summary conviction appeal court dated October 9, 2008 by Justice Elizabeth Quinlan of the Superior Court of Justice, dismissing the appeal from the conviction entered on November 23, 2007 by Justice Vibert A. Lampkin of the Ontario Court of Justice
By the Court:
[1] The appellant asks for leave to appeal his conviction for over 80. The trial judge found that the appellant’s s. 10(b) Charter rights were breached but that the breathalyzer readings were admissible under s. 24(2). His decision was upheld on appeal.
[2] In finding a breach of s. 10(b) of the Charter, the trial judge said at para. 27 of his reasons:
Appropriately the police should advise the detainee after waiting a reasonable period of time for his lawyer to return the call that no call has come in from his lawyer and ask him if he would like to consult another lawyer. Alternatively the police should ask the detainee whether he has another telephone number where his counsel of choice could be reached or give him a telephone directory to see if he could find his lawyer’s name and another telephone number where he could be reached.
We agree with these observations. Indeed, they reflect the Supreme Court of Canada’s decision in R. v. Willier, 2010 SCC 37, 2010 S.C.C. 37 (S.C.C.) where at para. 41 McLachlin C.J.C. and Charron J. wrote that s. 10(b) requires the police to afford detainees not only a reasonable opportunity to contact counsel of their choice but as well to facilitate that contact.
[3] Departing from the practice outlined by the trial judge is not a technicality. That said, in this case, we agree with the trial judge and the summary conviction appeal court judge that the breathalizer readings were admissible under s. 24(2) of the Charter.
[4] Leave to appeal is granted but the appeal is dismissed.
“Winkler C.J.O.”
“John Laskin J.A.”
“S.T. Goudge J.A.”