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Digest of the Week — Right to Counsel Not Invoked

R. v. Owens |
2015 CarswellOnt 14602 |
Ontario Court of Appeal

Criminal law | Charter of Rights and Freedoms | Arrest or detention [s. 10] | Right to counsel [s. 10(b)] | Miscellaneous

Accused was charged with operating motor vehicle with excessive blood alcohol level — Trial judge held that accused never invoked his right to counsel under s. 10(b) of Canadian Charter of Rights and Freedoms, dismissed accused's application to exclude breath samples, and convicted accused — Summary conviction appeal judge (SCAJ) allowed accused's appeal, holding that trial judge erred in law in her s. 10(b) analysis by focusing on whether accused's right to counsel had been invoked rather than on whether there had been valid waiver — SCAJ found accused's s. 10(b) rights had been breached because there was no unequivocal waiver, excluded breath samples, and acquitted accused — Crown appealed to Court of Appeal — Appeal allowed — SCAJ erred in law by failing to first consider whether accused had invoked his s. 10(b) rights — Issue of waiver arises only where detainee has invoked his rights — On facts of case, it was open to trial judge to find that arguably ambiguous statement "No, not right now" did not qualify as invocation of right to counsel — There was no basis for appellate interference — Order of SCAJ set aside, conviction restored.
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