Accused was convicted of dangerous driving causing bodily harm and assault with weapon, namely motor vehicle. Charges arose out road rage incident involving accused and van driver, who cut accused’s car off, got out of his van, and approached accused. Accused drove forward, striking van driver. Following his arrest for dangerous driving, accused spoke to duty counsel, but after interview officer told him that he was also going to be charged with assault with weapon, accused asked to contact his own lawyers. Interview officer attempted to contact accused’s lawyers, but upon being told that accused had spoken to duty counsel, officer concluded that accused had had opportunity to consult with counsel and continued interview. Accused appealed convictions, alleging that trial judge erred in failing to find that his rights under s. 10(b) of Canadian Charter of Rights and Freedoms were breached and in failing to exclude evidence of police interview under s. 24(2) of Charter. Appeal allowed. In determining whether accused’s jeopardy had changed, trial judge erred in focusing on facts that charges arose from same circumstances, offences carried same maximum penalty, and new charge was hybrid offence. Assault with weapon charge significantly increased accused’s alleged moral blameworthiness as it required proof that he acted intentionally to harm van driver, rather than that his driving constituted marked departure from norm, and it markedly increased potential penalty. It would be speculative to assume that advice from duty counsel, and accused’s reaction to that advice, would necessarily have been same regardless of any advice about additional charge. Trial judge erred in failing to find that police breached accused’s rights under s. 10(b) of Charter, and his s. 24(2) analysis attracted no deference. New trial ordered.
R. v. Moore (2016), 2016 CarswellOnt 19828, 2016 ONCA 964, Janet Simmons J.A., K. van Rensburg J.A., and B.W. Miller J.A. (Ont. C.A.).