Charter protected interest was high as accused was mentally ill and experiencing panic attack

Criminal Law - Charter of Rights And Freedoms - Charter remedies [s. 24]

Accused had bipolar disorder, post-traumatic stress disorder, severe depression and anxiety. Accused attracted attention of two police officers, who noticed her driving very slowly and hesitantly, and followed her and after officer stopped her, officer observed bottle of wine on floor of car and odour of alcohol emanating from vehicle. Officer observed that accused had blank stare on her face and that her eyes were glassy, and officer concluded that accused was impaired and arrested her. Accused became extremely upset and kept enquiring about her service dog and accused was charged with impaired driving and refusing to provide breath sample. Accused applied successfully for exclusion of evidence on ground that officers failed to adequately make efforts to contact accused’s counsel of choice. Trial judge found that accused made it abundantly clear from outset that she wanted to speak to her lawyer and that officers succumbed to temptation of piloting accused towards duty counsel, and while making honest efforts, certainly did not exercise same diligence that accused would have. Police officers' efforts to contact counsel of choice were inadequate and impact of violation to accused’s Charter protected interests was high as accused was mentally ill, experiencing panic attack and mental breakdown. Crown appealed. Appeal allowed in part. There was contextual and temporal link between accused’s refusal to provide breath sample and breach of accused’s s. 10(b) rights, accordingly this was evidence obtained in manner infringing Charter. Breach, in this case, was moderately serious and impact of breach was significant, because accused needed to speak to someone she trusted and by failing to adviser her of her right to contact lawyer or other duty counsel, police deprived her of opportunity to do so. Accordingly, appeal was allowed in respect to impaired driving charged, acquittal was set aside, and new trial was ordered and on count refusing to provide breath sample, appeal was dismissed.

R. v. O'Shea (2019), 2019 CarswellOnt 3190, 2019 ONSC 1514, P.A. Schreck J. (Ont. S.C.J.); reversed (2018), 2018 CarswellOnt 11167, 2018 ONCJ 431, Sheila Ray J. (Ont. C.J.).

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