Robert Kozak

The appellant appealed a conviction for operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams, arguing that police breached her Charter s. 10(b) right to counsel by failing to advise her of the availability of French-speaking duty counsel.

The trial judge had found that the appellant understood both English and French, indicated no language preference, and did not raise any concern when speaking with English-speaking duty counsel.

The appellate court held that the police satisfied both the informational and implementational components of the right to counsel and that no special circumstances required further inquiry into language preference.

The court also held that the appellant failed to exercise reasonable diligence in raising any alleged difficulty with counsel.

The conviction was therefore upheld and the appeal dismissed.

The appellant appealed a summary conviction for failing without reasonable excuse to comply with a demand to provide a breath sample under s.254(5) of the Criminal Code.

The appellant argued the trial judge erred by finding he was capable of providing a sample despite evidence he was vomiting, coughing, and complaining of chest pain, and by failing to properly apply the W.(D.) credibility framework.

He also raised a new ground alleging procedural unfairness because the trial proceeded in his absence contrary to s.650(1).

The court held that s.650(1) does not apply to summary conviction trials and that ss.800(2) and 803(2)(a) permitted the trial to proceed in the accused’s absence, particularly where defence counsel consented.

The appellate judge found no error of law or palpable and overriding error in the trial judge’s factual findings and concluded the evidence reasonably supported the conviction.

The accused was charged with operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood.

The defence brought a Charter application alleging breaches of the right to counsel and the right to be secure against unreasonable search and seizure.

The defence argued that the accused was not advised of her right to consult French-speaking duty counsel and that breath samples were not taken as soon as practicable.

The court found no Charter breach, as the accused understood her rights in both French and English, indicated no language preference, and did not voice concerns about understanding duty counsel.

The court also found that breath samples were taken as soon as practicable, with police acting reasonably throughout the detention and testing process.

The accused was found guilty.

The Crown sought a Dangerous Offender designation for the accused following his guilty plea to two counts of aggravated assault and breach of probation arising from a violent stabbing incident.

The court found the accused met the statutory test for Dangerous Offender status based on a pattern of repetitive and persistent aggressive behaviour involving weapons and violence while under court supervision, coupled with substance abuse and demonstrated inability to restrain behaviour.

However, the court imposed a determinate sentence of 33 months imprisonment (less presentence custody credit) followed by an 8-year Long-Term Supervision Order rather than an indeterminate sentence, finding that with intensive treatment, anti-alcohol medication, and structured supervision, there was a reasonable expectation that public safety could be adequately protected.

The accused brought a motion under s. 629 of the Criminal Code challenging the jury panel on the basis that the jury roll for the Thunder Bay district was not representative due to inadequate inclusion of First Nations persons living on reserves.

The motion relied on prior decisions criticizing the process for obtaining band lists and argued that insufficient changes had been made to address systemic underrepresentation.

The court reviewed evidence regarding steps taken by the Ministry of the Attorney General and local court officials, including revised procedures, outreach to band councils, offers to meet with communities, and efforts to clarify Privacy Act concerns.

Applying jurisprudence on representativeness and the sheriff’s duty of reasonable diligence under the Juries Act, the court held that reasonable efforts had been made despite continued refusals by some band councils to provide lists.

The accused failed to establish partiality or misconduct by the sheriff.