R. v. O'Connor (J.C.M.), (2015) 451 Sask.R. 240 (CA)

• Judge: Lane, Ottenbreit and Ryan-Froslie, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: January 27, 2015
• Jurisdiction: Saskatchewan
• Citations: (2015), 451 Sask.R. 240 (CA);2015 SKCA 9

R. v. O'Connor (J.C.M.) (2015), 451 Sask.R. 240 (CA);

    628 W.A.C. 240

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. FE.003

Her Majesty the Queen (appellant) v. Jonathan O'Connor (respondent)

(CACR2348; 2015 SKCA 9)

Indexed As: R. v. O'Connor (J.C.M.)

Saskatchewan Court of Appeal

Lane, Ottenbreit and Ryan-Froslie, JJ.A.

January 27, 2015.

Summary:

The Saskatchewan Provincial Court, in a decision reported at (2012), 408 Sask.R. 159, convicted the accused of refusing to comply with a demand for breath analysis. The accused appealed.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2013), 428 Sask.R. 11, allowed the appeal. The court found that the arresting officer breached the accused's s. 10(b) Charter right to retain and instruct counsel of his choice. The evidence of the accused's refusal to provide a breath sample was excluded pursuant to s. 24 of the Charter. The verdict of guilty of the refusal charge was set aside and a verdict of not guilty was entered. The Crown sought leave to appeal and appealed the decision on the basis that the Queen's Bench judge erred by substituting his own findings of fact and inferences for those of the trial judge.

The Saskatchewan Court of Appeal granted leave to appeal, allowed the appeal, set aside the verdict of not guilty and restored the conviction and sentence at trial.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The accused was convicted in Provincial Court of refusing to comply with a demand for breath analysis - At the detachment, the accused had wanted to contact his father to obtain information with respect to a family lawyer - Cst. Maurice attempted phone calls to both the accused's mother's and father's cell phone numbers, as well as the family home phone number, but he did not contact anyone - He did not leave a message at any of the numbers - The trial judge found that the failure to leave a phone message was not a breach of the accused's s. 10(b) Charter rights - The Saskatchewan Court of Queen's Bench allowed the accused's appeal - The court found that there was a breach of the accused's s. 10(b) right to retain and instruct counsel of his choice and excluded the evidence of refusal pursuant to s. 24(2) - A not guilty verdict was entered - The Saskatchewan Court of Appeal allowed the Crown's appeal and restored the conviction - The Queen's Bench judge sitting as a summary conviction appeal court judge was limited in his ability to overturn findings of fact and credibility by the standard of review of palpable and overriding error - The trial judge made a finding of fact that a message could not have been left by the police officer on the accused's father's phone - The trial judge's finding was a reasonable inference that he was entitled to make based on the evidence before him - The summary conviction appeal court judge substituted his own inference that a message could have been left - In doing so, he was in error - There was evidence upon which the trial judge could properly draw the inferences he did leading to his conclusion that the accused's s. 10(b) rights were not violated.

Civil Rights - Topic 4609.1

Right to counsel - Duty of police investigators (incl. undercover officers) - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4610

Right to counsel - Impaired driving (incl. demand for breath or blood sample) - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4620.3

Right to counsel - Through third party intermediary - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4620.6

Right to counsel - General - Right to counsel of choice - [See Civil Rights - Topic 4604 ].

Criminal Law - Topic 7463

Summary conviction proceedings - Appeals - General - Scope of appeal - [See Civil Rights - Topic 4604 ].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 10(b) [para. 5].

Counsel:

Andrew Davis, for the appellant;

Hal Wellsch, for the respondent.

This appeal was heard on January 27, 2015, before Lane, Ottenbreit and Ryan-Froslie, JJ.A., of the Saskatchewan Court of Appeal. The judgment of the Court of Appeal was delivered orally on January 27, 2015, and the following written reasons were delivered by Ottenbreit, J.A., on January 29, 2015.