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APPEALS - Misapprehension of or failure to consider evidence

Monday, June 24, 2019 @ 9:32 AM  

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Appeal by Lee from his conviction for driving with a blood alcohol level exceeding .08. When Lee dialed Legal Aid from the phone room, he received a busy signal. The investigating officer dialed Legal Aid using the phone located in the phone room and handed the phone back to Lee. The officer said he placed the call to see if the phone was operating properly. The officer then left the phone room. Lee took the position that the trial judge misapprehended the evidence of the investigating police officer heard in the voir dire held to consider Lee’s claim that his s.10(b) Charter rights were violated. The trial judge concluded that Lee’s right to counsel of choice was not breached. Lee took the position that the misapprehension of the evidence materially contributed to the trial judge’s inability to consider whether Lee’s right to counsel was infringed by the investigating officer. Lee sought a new trial as a remedy.

HELD: Appeal allowed. The trial judge did not misapprehend the evidence or commit a palpable and overriding error in concluding that the officer was checking the functionality of the phone in the phone room. However, the trial judge took a legally incorrect approach to the issue of whether the police improperly interfered with Lee’s right to counsel of choice. Rather than asking whether the officer had an innocent purpose in contacting Legal Aid, the trial judge should have asked if the contact with Legal Aid that was unsolicited by Lee had the effect of breaching Lee’s right to counsel of choice. As the Crown declined reliance on the curative proviso, a new trial was ordered.

R. v. Lee, [2019] A.J. No. 595, Alberta Court of Queen's Bench, D. Labrenz J.,  May 10, 2019. Digest No. TLD-June242019002