Ontario Criminal

Charter of Rights

Accused made informed decision not to speak to lawyer

Application by accused, who was charged with impaired driving and with driving with blood alcohol level over legal limit, for order that his rights under Canadian Charter of Rights and Freedoms were violated. Police officer attended at scene of motor vehicle accident that involved vehicle driven by accused. Officer asked if accused and his passenger were injured and when he was told there were no injuries he asked who driver was. Accused responded that he was driver. He did not volunteer this information and he only made this admission in response to officer’s question. Officer smelled strong odour of alcoholic beverage from accused’s breath. Accused’s speech was slurred and his eyes were red and glossy. He was also unsteady on his feet. Officer believed he had reasonable and probable grounds to arrest accused for impaired driving and he did so. Accused was asked if he wanted to call lawyer. His response was that he wanted to call his parents. Officer did not respond to that request. Rather, he explained to accused about various ways he could speak to lawyer. After accused was cautioned he told officer he made mistake by driving and he explained what he meant by that admission. At station accused was asked again if he wanted to call counsel and he declined offer. His readings were 140 and 120. Application dismissed. Utterance about being driver was not made as report within meaning of compelling statute and it was not made with honest and reasonable belief that he was compelled by statute to do so. Accused therefore failed to establish that his rights under s. 7 of Charter were violated. Regarding right to counsel accused did not tell officer that purpose of calling his parents was to obtain contact information about lawyer. This right was not violated as accused made informed decision not to speak to lawyer.

R. v. Treliving

(Jan. 30, 2012, Ont. C.J., Hearn J., File No. 1705/11) 99 W.C.B. (2d) 559 (23 pp.)

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