R. v. Kay (R.C.), 2006 SKQB 79

• Judge: M-E. Wright, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: February 20, 2006
• Jurisdiction: Saskatchewan
• Citations: 2006 SKQB 79;(2006), 277 Sask.R. 72 (QB)

R. v. Kay (R.C.) (2006), 277 Sask.R. 72 (QB)

MLB headnote and full text

Temp. Cite: [2006] Sask.R. TBEd. MR.041

Ryan Carlton Kay (appellant) v. Her Majesty the Queen (respondent)

(2004 QBA No. 12; 2006 SKQB 79)

Indexed As: R. v. Kay (R.C.)

Saskatchewan Court of Queen's Bench

Judicial Centre of Prince Albert

M-E. Wright, J.

February 20, 2006.

Summary:

The accused was charged with failing or refusing to comply with a breath sample demand. He requested an adjournment at trial because his counsel was unable to attend. The initial request was refused, but the trial was adjourned after the conclusion of the Crown's evidence because the accused wanted his counsel present during his testimony. The trial was also adjourned to allow the accused's counsel to review tapes of the evidence. The accused was convicted. He appealed.

The Saskatchewan Court of Queen's Bench dismissed the appeal.

Civil Rights - Topic 3126

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Fair hearing - What constitutes - The accused was charged with failing to provide a breath sample - There were a number of adjournments - At trial, the accused's lawyer was unable to attend - The accused's request for an adjournment was refused - The trial proceeded - The accused sought an adjournment to subpoena a witness - The trial judge left the option open - When the Crown's case concluded, the accused sought an adjournment - He wanted his counsel present during his testimony - The trial was adjourned - After two further adjournments, the accused was convicted - He appealed the conviction, submitting, inter alia, that the trial judge, in refusing the accused's initial request to adjourn the trial, had failed to exercise his discretion judicially - The Saskatchewan Court of Queen's Bench dismissed the appeal - Any perceived unfairness to the accused was more than ameliorated at the conclusion of the Crown's evidence - The accused's witness testified and the accused was able to avail himself of counsel - The accused was not deprived of his right to make full answer and defence - See paragraphs 13 to 25.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - [See Civil Rights - Topic 3126 ].

Civil Rights - Topic 4620.2

Right to counsel - General - Order for trial without counsel - [See Civil Rights - Topic 3126 ].

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - The accused was charged with failing to provide a breath sample - At trial, his request for an adjournment because his counsel was unable to attend was refused - The accused was convicted - He appealed, submitting, inter alia, that his Charter s. 10(b) right to counsel had been infringed because, given his level of intoxication, sufficient steps had not been taken to ensure that he understood that right before waiving it - The issue had not been raised at trial - The Saskatchewan Court of Queen's Bench dismissed the appeal - Because his request to adjourn was denied, the accused was left to object to evidentiary matters and to cross-examine Crown witnesses without the benefit of counsel - This might have explained the failure to raise the Charter issue at trial - However, the accused had retained counsel seven months before the trial - No notice had been given regarding a Charter issue either before the trial or during a later adjournment when the Crown may have had an opportunity to reopen its case - The issue could not be raised on appeal - See paragraphs 26 to 32.

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See Civil Rights - Topic 3126 ].

Criminal Law - Topic 4485

Procedure - Trial - Adjournments - [See Civil Rights - Topic 3126 ].

Cases Noticed:

R. v. Beals (E.W.) (1993), 126 N.S.R.(2d) 130; 352 A.P.R. 130 (C.A.), refd to. [para. 13].

R. v. Leask (C.R.) (2005), 268 Sask.R. 135; 2005 SKQB 315, refd to. [para. 14].

R. v. Kishayinew (D.) (2003), 231 Sask.R. 106; 2003 SKQB 39, refd to. [para. 15].

R. v. Rak (G.) and Rak (O.) (1999), 172 Sask.R. 301; 185 W.A.C. 301 (C.A.), refd to. [para. 16].

R. v. Hansen (C.A.) (2003), 236 Sask.R. 4; 2003 SKQB 238, refd to. [para. 17].

R. v. Barrette, [1977] 2 S.C.R. 121; 10 N.R. 321, dist. [para. 19].

R. v. Pickett (1971), 5 C.C.C.(2d) 371 (Ont. C.A.), dist. [para.19].

R. v. Phillips (R.J.) (2003), 239 Sask.R. 161; 2003 SKQB 330, appld. [para. 28].

R. v. Pelletier (J.G.) (1995), 128 Sask.R. 214; 85 W.A.C. 214 (C.A.), refd to. [para. 29].

R. v. Wilkinson, [1998] S.J. No. 913 (Q.B.), refd to. [para. 30].

Counsel:

G.V. Bendig, for the appellant;

J.M. Kulyk, Q.C., for the respondent.

This appeal was heard by M-E. Wright, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Prince Albert, who delivered the following judgment on February 20, 2006.