Ontario Criminal

Charter Of Rights

Accused’s circumstances and jeopardy never changed from time of arrest to time of interview

Accused charged with three counts of arson and two counts of mischief. Accused applied to exclude evidence based on breach of s. 10(b) Charter rights. Accused was arrested after police searched his computer. Police were aware that accused’s parents were forbidding their interviewing of any of their children without either their presence, or that of counsel retained by them. Accused spoke to counsel following his arrest. Application dismissed. No evidence that counsel was dissatisfied with contact he had with accused. No concern expressed by accused during his interview that he needed more time, was dissatisfied in any way with advice received, or wished to speak to counsel again. While only 18 years and 2 months at time of his arrest, accused was considered adult and his parents were not in position to demand that his lawyer be present during interview. Accused’s circumstances and jeopardy never changed from time of his arrest to time of interview and no subsequent right or access to counsel was mandated. No breach of accused’s rights.

R. v. Gander

(June 6, 2011, Ont. S.C.J., Thomas J., File No. CR-10-00002703-00MO) 95 W.C.B. (2d) 495 (15 pp.).

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