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Right to Counsel - Counsel of Choice - Right not Absolute
2007-12-04 00:29:00
Right to Counsel - Counsel of Choice - Right not Absolute In R. v. Van Binnendyk, 2007 CarswellOnt 4723 the Ontario Court of Appeal dismissed the accused appeal. The issue on appeal was the accused's right to counsel of his choice pursuant to 10(b) of the Charter. At the time of his arrest, the accused was given his rights to counsel and was told about the availability of legal aid duty counsel. The accused indicated that he only wished to speak his counsel. The police left a message for his counsel to contact the police which he did not. The Court in dismissing the appeal stated: Like both courts below, we are of the view that this case is very similar to R. v. Richfield (2003), 178 C.C.C. (3d) 23 (Ont. C.A.). Again, like the courts below, we rely on the reasoning in Richfield , particularly at para. 6: a person detained by the police must be provided with a reasonable opportunity to exercise the right to counsel and, except in cases of urgency or danger, the police must re...

Officer Can Hear Conversation in Booking Room is Violation of Right to Coun
2007-11-12 15:16:00
http://www.canlii.org/en/on/oncj/doc/2007 /2007oncj500/2007oncj500.html [31] Both Counsel relied upon the case of R. v. O’Donnell (supra) where the New Brunswick Court of Appeal gave consideration to four different approaches used to assess the threshold of proof necessary to demonstrate that an accused right to privacy had been breached. Although the NBCA rejected the Reasonable apprehension Test, that appears to be the law in Ontario. (R. v. Playford (supra); R. v. Cairns [2004] O.J. No. 210 (C.A.) and R. v. Carroll [2002] O.J. No. 1215 (OCJ). These cases essentially focus on whether the accused believed the police could overhear his conversation to such an extent that it compromised his ability to retain and instruct counsel and, having regard to the surrounding circumstances, such a belief was reasonable. [32] The test adopted by the New Brunswick Court of Appeal was as follows: Whether it was more probable than not that the police did or...
More About: Hear , Room , Booking , Officer , Conversation

Officer Can Hear Conversation in Booking Room is Violation of Right to Coun
2007-11-12 15:16:00
http://www.canlii.org/en/on/oncj/doc/2007 /2007oncj500/2007oncj500.html [31] Both Counsel relied upon the case of R. v. O?Donnell (supra) where the New Brunswick Court of Appeal gave consideration to four different approaches used to assess the threshold of proof necessary to demonstrate that an accused right to privacy had been breached. Although the NBCA rejected the Reasonable apprehension Test, that appears to be the law in Ontario. (R. v. Playford (supra); R. v. Cairns [2004] O.J. No. 210 (C.A.) and R. v. Carroll [2002] O.J. No. 1215 (OCJ). These cases essentially focus on whether the accused believed the police could overhear his conversation to such an extent that it compromised his ability to retain and instruct counsel and, having regard to the surrounding circumstances, such a belief was reasonable. [32] The test adopted by the New Brunswick Court of Appeal was as follows: Whether it was more probable than not that the police did or...
More About: Hear , Room , Booking , Officer , Conversation

But were they runflats?
2007-11-11 15:11:00
http://www.canlii.org/en/on/oncj/doc/2007 /2007oncj494/2007oncj494.html Two flat tires were not enough for the accused to rebut the presumption of care and control.

Blood Samples from Hospital/Privacy in Ambulance
2007-11-03 23:31:00
http://www.canlii.org/en/on/onca/doc/2007 /2007onca655/2007onca655.html This is an interesting case from the Ontario Court of Appeal. The accused collides with another vehicle resulting in the death of one person. The accused is also injured and is taken to the hospital by ambulance. Amongst other grounds for appeal, the accused argues that his Section 8 rights were violated by the taking of blood samples and that his 10(b) rights were violated by the police officer remaining present with the accused in the ambulance on the way to the hospital. The Blood Samples Hospital s routinely take blood samples from accident victims. Police will often get a search warrant and seized the blood samples for analysis. In this case, the accused argued that the blood samples should be excluded. The Court dismisses this argument stating: (b) Taking blood samples by hospital personnel [40] The trial judge found that hospital personnel took blood samples only for medical reasons. There is a...
More About: Privacy , Ambulance

Breathalyzers reliability - Defence Need Not Raise High Unreliability, only
2007-10-30 20:21:00
http://www.canlii.org/en/on/onsc/doc/2007 /2007canlii44353/2007canlii44353.html In this case, a police officer uses an alcohol standard that is 9 days old. The defence brings forward evidence that it should be changed every 7 days. At trial, the Judge dismisses the accused's argument that the samples are unreliable. On appeal, the court states [28] Of greater concern, however, is what the trial judge did with respect to the onus of proof. There was no case pointed out to me where it is established that the defence has an obligation to prove unreliability flowing from a breach of the protocol. In considering the defence expert evidence the trial judge indicated that the defence needed to establish a high degree of unreliability before he would have found unreliable and inaccurate results. With all due respect, the Crown must prove all of the elements of the offence beyond a reasonable doubt. It is not for the defence to establish a high degree of unreliability. The defe...
More About: Defence , High , Breathalyzer

Accused's Right to Counsel of Choice Results in Acquittal on Appeal
2007-10-30 20:05:00
http://www.canlii.org/en/on/onsc/doc/2007 /2007canlii44833/2007canlii44833.html In this case, the Appellant requested to speak with his counsel of choice. The Police assisted in finding his counsel's number by calling a friend of the accused who provided the police with the lawyers number. The number provided to the police was only for the lawyer's pager. The police paged the lawyer and then called duty counsel 40 seconds after paging the lawyer. The Court ruled that the police conduct violated the accused's right to counsel of his choice given that the police didn't call the accused's friend to try to get another number and given that the police only waited 40 seconds to call duty counsel on the accused's behalf. Given that there was no urgency, the samples were excluded and an acquittal entered.
More About: Results , Choice , Appeal

Bill C-32 - New Changes to Impaired Over 80
2007-10-18 21:31:00
http://www2.parl.gc.ca/HousePublications/ Publication.aspx?DocId=3063371&Language=e &Mode=1&File=27#1 In the coming weeks, I will be review some of the proposed changes to the Criminal Code as it relates to bill C-32. Currently, the minimum penalities for 253(a)or(b) are: First Offence: $600.00 fine; Second Offence: 14 Days imprisonment; and Third and Subsequent Office: 90 days imprisonment. Bill C-32 will increase the minimum penalities for impaired driving to: (i) for a first offence, to a fine of not less than $1,000, (ii) for a second offence, to imprisonment for not less than 30 days, and (iii) for each subsequent offence, to imprisonment for not less than 120 days; As you can see, the tariff has more than doubled for a second offence!
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15 Minute Roadside Delay Upheld;
2007-10-16 19:58:00
http://www.canlii.org/en/on/onsc/doc/2007 /2007canlii40867/2007canlii40867.html Fifteen Minute Delay Does Not Trigger "George" Rights In this case, the trial judge held that a fifteen minute delay at the roadside was reasonable, and such a delay did not trigger a George defence even though there was a payphone nearby. [6] The appellant?s position is that R. v. Bernshaw 1995 CanLII 150 (S.C.C.), (1995), 95 C.C.C. (3d) 193 (S.C.C.) should be distinguished as there has been a significant change in technology since 1995 with the advent of cell phones and this case, a public telephone being available. Consequently, a delay of fifteen minutes to obtain the sample can no longer ?be demonstrably justified in a free and democratic society? with respect to the delay in allowing an accused being permitted to contact his counsel. [7] The Crown?s position is that Bernshaw and R. v. George 2004 CanLII 6210 (ON C.A.), (2004) 187 C.C.C. (3d) 289 (O.C.A.) are clear precedents es...
More About: Held

ID
2007-10-16 19:00:00
http://www.canlii.org/en/on/onsc/doc/2007 /2007canlii40868/2007canlii40868.html

Right to Counsel - Counsel of Choice - Right not Absolute
2007-10-12 01:19:00
In R. v. Van Binnendyk, 2007 CarswellOnt 4723 the Ontario Court of Appeal dismissed the accused appeal. The issue on appeal was the accused's right to counsel of his choice pursuant to 10(b) of the Charter. At the time of his arrest, the accused was given his rights to counsel and was told about the availability of legal aid duty counsel. The accused indicated that he only wished to speak his counsel. The police left a message for his counsel to contact the police which he did not. The Court in dismissing the appeal stated: Like both courts below, we are of the view that this case is very similar to R. v. Richfield (2003), 178 C.C.C. (3d) 23 (Ont. C.A.). Again, like the courts below, we rely on the reasoning in Richfield , particularly at para. 6: a person detained by the police must be provided with a reasonable opportunity to exercise the right to counsel and, except in cases of urgency or danger, the police must refrain from eliciting evidence from the detainee until he o...
More About: Choice , Absolute

Blood Samples from Hospital/Privacy in Ambulance
2007-10-05 16:54:00
http://canlii.org/eliisa/highlight.do?tex t=impaired&language=en&searchTitle=Search +all+CanLII+Databases&path=/en/on/onca/do c/2007/2007onca655/2007onca655.html This is an interesting case from the Ontario Court of Appeal. The accused is in an accident Hospital s routinely take blood samples from accident victims. Police will often get a search warrant and seized the blood samples for analysis. In this case, the accused argued that the blood samples should be excluded. The Court dismisses this argument stating: (b) Taking blood samples by hospital personnel [40] The trial judge found that hospital personnel took blood samples only for medical reasons. There is absolutely no evidence that the physician who ordered that the blood samples be taken or that the nurse who took them were acting as agents of the state or that they took the samples with the intention of sharing the blood or the results of any analysis with the police. Accordingly, s. 8 of the Charter was n...
More About: Samples , Privacy , Ambulance , Blood

Blood Samples from Hospital/Privacy in Ambulance
2007-10-05 16:54:00
http://canlii.org/eliisa/highlight.do?tex t=impaired&language=en&searchTitl e=Search+all+CanLII+Databases&path=/e n/on/onca/doc/2007/2007onca655/2007onca65 5.html This is an interesting case from the Ontario Court of Appeal. The accused is in an accident Hospital s routinely take blood samples from accident victims. Police will often get a search warrant and seized the blood samples for analysis. In this case, the accused argued that the blood samples should be excluded. The Court dismisses this argument stating: (b) Taking blood samples by hospital personnel [40] The trial judge found that hospital personnel took blood samples only for medical reasons. There is absolutely no evidence that the physician who ordered that the blood samples be taken or that the nurse who took them were acting as agents of the state or that they took the samples with the intention of sharing the blood or the results of any analysis with the police. Accordingly, s. 8 of the ...
More About: Samples , Privacy , Ambulance , Blood

Reasonable Doubt as to ID leads to Acquittal
2007-10-05 16:45:00
http://canlii.org/eliisa/highlight.do?tex t=impaired&language=en&searchTitle=Search +all+CanLII+Databases&path=/en/on/oncj/do c/2007/2007oncj409/2007oncj409.html Reasonable Doubt as to ID leads to Acquittal
More About: Leads

Reasonable Doubt as to ID leads to Acquittal
2007-10-05 16:45:00
http://canlii.org/eliisa/highlight.do?tex t=impaired&language=en&searchTitl e=Search+all+CanLII+Databases&path=/e n/on/oncj/doc/2007/2007oncj409/2007oncj40 9.html Reasonable Doubt as to ID leads to Acquittal
More About: Leads

Evidence to the Contrary - Re-Opening Defence Case
2007-10-05 15:52:00
http://canlii.org/eliisa/highlight.do?tex t=impaired&language=en&searchTitl e=Search+all+CanLII+Databases&path=/e n/on/oncj/doc/2007/2007oncj432/2007oncj43 2.html The accused's evidence and that of the toxicoligist did not match. This issue arose while the Crown was giving their closing submissions. The Court allowed the defence to re-open there case for the following reasons: I have decided to permit the defence to re-open their case for the following reasons: - First, the core of the accused’s evidence remains unchanged - that he consumed 4 beers. - Second, the Crown fairly conceded there is no prejudice to their case if the defence were to re-open. The Crown will have full opportunity to cross-examine the accused and make submissions accordingly. - Third, the issue is a very narrow one and will not cause undue delay in the proceedings. - Fourth, the confusion with respect to the volume of alcohol consumed was not a deliberate tac...
More About: Evidence , Opening , Defence , Case , Contrary

Evidence to the Contrary - Re-Opening Defence Case
2007-10-05 15:52:00
http://canlii.org/eliisa/highlight.do?tex t=impaired&language=en&searchTitle=Search +all+CanLII+Databases&path=/en/on/oncj/do c/2007/2007oncj432/2007oncj432.html The accused's evidence and that of the toxicoligist did not match. This issue arose while the Crown was giving their closing submissions. The Court allowed the defence to re-open there case for the following reasons: I have decided to permit the defence to re-open their case for the following reasons: - First, the core of the accused?s evidence remains unchanged - that he consumed 4 beers. - Second, the Crown fairly conceded there is no prejudice to their case if the defence were to re-open. The Crown will have full opportunity to cross-examine the accused and make submissions accordingly. - Third, the issue is a very narrow one and will not cause undue delay in the proceedings. - Fourth, the confusion with respect to the volume of alcohol consumed was not a deliberate tactic as was found ...
More About: Evidence , Opening , Defence , Case , Contrary

Trial Judge Erred in Assessing Level of Drukenness
2007-10-05 15:00:00
http://canlii.org/eliisa/highlight.do?tex t=impaired&language=en&searchTitl e=Search+all+CanLII+Databases&path=/e n/on/onca/doc/2007/2007onca603/2007onca60 3.html In R. v. Smeda, the Ontario Court of Appeal reverse a finding of guilt and ordered a new trial where the accused had readings of .172 and .172 yet showed little or no evidence of impairment while sitting behind the wheel. This case illustrates the use of high readings to attack a finding of impaired when little or no symptoms of impairment exist. It further illustrates the importance of focusing on the impairment while behind the wheel versus other times of police involvement.
More About: Judge , Trial

Trial Judge Erred in Assessing Level of Drukenness
2007-10-05 15:00:00
http://canlii.org/eliisa/highlight.do?tex t=impaired&language=en&searchTitle=Search +all+CanLII+Databases&path=/en/on/onca/do c/2007/2007onca603/2007onca603.html In R. v. Smeda, the Ontario Court of Appeal reverse a finding of guilt and ordered a new trial where the accused had readings of .172 and .172 yet showed little or no evidence of impairment while sitting behind the wheel. This case illustrates the use of high readings to attack a finding of impaired when little or no symptoms of impairment exist. It further illustrates the importance of focusing on the impairment while behind the wheel versus other times of police involvement.
More About: Judge , Trial

Entry into Garage Not Permitted Under Section 8
2007-09-30 21:24:00
The Police have no right to enter a garage while searching for an impaired driver. See R. v. Clements, [2007] A.J. No. 1024
More About: Garage , Section , Mitt , Mitte , Section 8

Exclusion of Breath Samples
2007-09-26 01:35:00
http://www.canlii.org/en/on/onsc/doc/2007 /2007canlii18137/2007canlii18137.html The Courts have ruled in the above-noted case that breath samples are conscripted evidence, and fall into the "rare exceptions" category of the general rule of Stillman.
More About: Samples , Breath , Sample , Brea

Impaired driving – Evidence to the contrary – Use of breathalyz
2007-09-26 01:12:00
Ontario Courts of Justice are now bound to follow the position, first developed in R. v. Snider, [2006] O.J. No. 879 (C.J.), that, on a charge of "over 80," if the Crown is not relying on the presumptive accuracy of a breathalyzer certificate, a trial judge may rely on breathalyzer results when considering whether the defence’s "evidence to the contrary" has raised a reasonable doubt as to the accused’s guilt
More About: Evidence , Driving , Contrary , Brea , Dash

Impaired driving ? Evidence to the contrary ? Use of breathalyzer results
2007-09-26 01:12:00
Ontario Courts of Justice are now bound to follow the position, first developed in R. v. Snider, [2006] O.J. No. 879 (C.J.), that, on a charge of "over 80," if the Crown is not relying on the presumptive accuracy of a breathalyzer certificate, a trial judge may rely on breathalyzer results when considering whether the defence?s "evidence to the contrary" has raised a reasonable doubt as to the accused?s guilt
More About: Evidence , Driving , Results , Contrary , Brea

20 Minutes Not Too Long
2007-09-26 01:10:00
20 minutes from the time the accused arrived at the station to when he was turned over to the breath tech is "as soon as practicable" if this time was "consumed by the usual and reasonable procedures in the arrest and processing of the detainee": R. v. Mckenzie, 2007 ONCJ 247 (CanLII), at para. 8, per Duncan J.
More About: Long , Minutes , Utes

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