Accused appealed his conviction for driving over .08, alleging trial judge erred in law in failing to find s. 10(b) breach, did not properly assess issue of waiver of right to counsel, and that judge erred in failing to find that Prosper warning was required. Upon his arrest after being pulled over and failing ASD test, accused was read his rights to counsel. When accused was lodged at detachment, he was asked if he wished to speak to lawyer, and he declined. When asked by counsel if officer had anything in his notes about accused waiving his right to counsel, he stated that he forgot to write that down. Officer agreed that he had no notation either way as to whether accused indicated that he wanted to speak to lawyer while he was in cruiser. Officer indicated that he did not recall accused’s answer and maybe he did not ask question. Officer agreed that it was possible that accused wanted to speak to lawyer. Officer agreed that it was possible that accused could have said that he wanted to speak to lawyer during roadside phase. Officer agreed that he knew of necessity to hold off questioning if right to counsel was requested. Officer said when he asked accused second time about whether he wished to speak to lawyer that his verbatim response was “no, it’s okay”. Accused claimed to have asked to speak with named counsel at roadside. Appeal dismissed. Trial court found that even if accused indicated that had wanted to speak to counsel when given his rights at roadside (and trial court found that he probably did), accused thereafter did nothing that evidenced desire to speak to counsel. Trial judge’s findings were supported in evidence and were not in error in finding accused had not been diligent in exercising his counsel rights.
R. v. Ilyassov (Aug. 15, 2013, Ont. S.C.J., Hugh K. O’Connell J., File No. Newmarket S.C.A. No. 11-05) 109 W.C.B. (2d) 643.