Crown appealed decision overturning trial judge’s decision to dismiss accused’s application to exclude breath sample evidence on basis of breach of right to counsel and acquitting accused. Accused was sitting in his parked pick-up truck, out of gas at side of highway, when he was approached by two police officers, responding to earlier 911 call alerting them to accused’s erratic driving. Police formed reasonable suspicion that accused had been drinking and demanded he provide breath sample. Accused did so, and screening device registered fail. Upon arrest, police advised accused of his right to counsel using standard language from OPP issued card. Arresting officer asked accused: “Do you understand?” and accused answered: “Yes”. Arresting officer then asked accused if he wished to call lawyer now and accused replied: “No, not right now”. Accused was then taken to police station where he provided readings of 160. When accused was returned to arresting officer, that officer again asked whether accused wished to speak to counsel. Accused replied: “No, I have nothing to hide”. Accused did not ask to speak to lawyer at any point while in police custody. Appeal judge found that accused’s s. 10(b) rights had been breached because there was no unequivocal waiver of right to counsel, excluded breath sample evidence pursuant to s. 24(2) of Charter, and entered acquittal. Appeal allowed; conviction restored. Appeal judge erred in law by failing to first consider whether accused had invoked his s. 10(b) rights, because it is only in circumstances where detainee has invoked his rights that issue of waiver arises. Trial judge found as fact accused did not invoke his right to speak to counsel. This finding was open to trial judge on evidence and as result there was no basis for appellate interference. While arresting officer asked accused second time whether he wished to contact counsel, officer testified that it was his standard practice to ask more than once, and at no point did he believe accused wished to speak with lawyer. Trial judge indicated she did not believe accused’s explanation for why he declined to contact counsel when he was asked at police station. Further, trial judge found interactions between police and accused were polite and non-confrontational, that arresting officer did not mislead accused as to his rights, and accused was not confused.
R. v. Owens (Sep. 28, 2015, Ont. C.A., John Laskin J.A., C.W. Hourigan J.A., and G. Pardu J.A., File No. CA C59914) Decision at 118 W.C.B. (2d) 256 was reversed. 125 W.C.B. (2d) 150.