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CONSTITUTIONAL ISSUES - Canadian Charter of Rights and Freedoms - Right to counsel of choice

Wednesday, August 14, 2019 @ 6:47 AM  

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Appeal by accused, Canavan, from convictions for impaired driving causing death, driving with an illegal blood-alcohol level, and two counts of impaired driving causing bodily harm. The accused drove uphill on the wrong side of the road. He collided with an oncoming vehicle as it crested the hill. The driver of the other vehicle was killed, and two passengers were injured. Following the collision, the accused was taken to hospital for treatment. Police read the accused his rights in the ambulance and he declined to speak with counsel. At hospital, several vials of the accused's blood were taken for analysis. Ten days later, police seized the blood pursuant to a search warrant. In addition, following treatment, police spoke with the accused, left voice and text messages for his counsel, and eventually administered a breath test at the hospital. The trial judge rejected the accused's contention that the blood samples were seized in violation of his s. 8 Charter rights, finding that hospital staff acted independently of police and the accused had consented to treatment as a trauma patient. There was no evidence of violation of hospital protocol regarding the basis for drawing blood and the amount taken. Similarly, the trial judge rejected the accused's contention that police violated his s. 10(b) Charter rights, finding that police discharged the informational and implementation elements of the accused's right. The accused appealed the resultant conviction.

HELD: Appeal dismissed. The trial judge's findings of no breach of the accused's s. 8 Charter rights were fully supported by the evidence and did not disclose any palpable and overriding error. In finding no breach of the accused's s. 10(b) Charter rights, there was no error in failing to find police were not reasonably diligent in facilitating contact with counsel. Police complied with the direction on counsel of choice's voicemail to send a text message to a specified number. There was no requirement to follow-up the text message with a call. The trial judge did not err in finding that there was no evidence supporting the accused's contention that a third vehicle forced him to the oncoming lane. The trial judge was entitled to reject the accused's Bolus drinking evidence as contrived and lacking credibility.

R. v. Canavan, [2019] O.J. No. 3491, Ontario Court of Appeal, D.M. Brown, B. Miller and G.T. Trotter JJ.A., July 4, 2019. Digest No. TLD-August12019007