R. v. Larson (B.), (2015) 472 Sask.R. 139 (CA)

• Judge: Jackson, Ottenbreit and Ryan-Froslie, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: October 23, 2015
• Jurisdiction: Saskatchewan
• Citations: (2015), 472 Sask.R. 139 (CA);2015 SKCA 143

R. v. Larson (B.) (2015), 472 Sask.R. 139 (CA);

    658 W.A.C. 139

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. DE.074

Brad Larson (appellant) v. Her Majesty the Queen (respondent)

(CACR2565; 2015 SKCA 143)

Indexed As: R. v. Larson (B.)

Saskatchewan Court of Appeal

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

December 21, 2015.

Summary:

The accused was charged with driving while having a blood-alcohol level exceeding the legal limit. He asserted a violation of his right to counsel under s. 10(b) of the Charter.

The Saskatchewan Provincial Court, in a decision not reported in this series of reports, rejected the accused's Charter argument and found him guilty. The accused appealed.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2014), 464 Sask.R. 154, dismissed the appeal. The accused appealed.

The Saskatchewan Court of Appeal dismissed the appeal.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - Following his arrest for impaired driving and before providing breath samples, Larson was advised of his right to counsel - He said he wanted to call a lawyer named Riou - The arresting officer called Riou at 3:58 a.m. and left a message on his voicemail service - Larson wanted to wait for a response - The officer called Riou again at 4:21 a.m. but there was no answer - The officer told Larson he could call another lawyer, including Legal Aid - There was a phone book in front of Larson - He said he wanted to call Legal Aid - The officer made several attempts to reach Legal Aid but was unsuccessful - He called Riou again at 4:33 a.m. but was unsuccessful - The officer successfully reached Legal Aid at 4:35 a.m. - Larson spoke to Legal Aid for seven or eight minutes - The breath technician asked Larson if he was satisfied with his call to counsel and advised that he could still call another lawyer before providing breath samples - Larson said he was satisfied and chose not to contact counsel any further - He was convicted of driving while having a blood-alcohol level exceeding the legal limit - Larson appealed, arguing that his s. 10(b) Charter rights were violated because the police made no efforts to determine Riou's home phone number - The Saskatchewan Court of Appeal dismissed the appeal - The police could not be faulted for not taking an initiative regarding the exercise of Larson's right to counsel that Larson himself did not take or that they were not asked to take by Larson - To place an obligation on the police to independently suggest such initiatives would be to encourage them to take over the contact process - The police acted diligently and fulfilled their implementational duty.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4610

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

Cases Noticed:

R. v. O'Connor (J.C.M.) (2013), 428 Sask.R. 11; 2013 SKQB 292, revd. (2015), 451 Sask.R. 240; 628 W.A.C. 240; 2015 SKCA 9, refd to. [para. 12].

R. v. McCrimmon (D.R.), [2010] 2 S.C.R. 402; 406 N.R. 152; 293 B.C.A.C. 144; 496 W.A.C. 144; 2010 SCC 36, refd to. [para. 15].

R. v. Willier (S.J.), [2010] 2 S.C.R. 429; 406 N.R. 218; 490 A.R. 1; 497 W.A.C. 1; 2010 SCC 37, refd to. [para. 17].

R. v. Restau (E.J.) (2008), 314 Sask.R. 224; 435 W.A.C. 224; 2008 SKCA 147, refd to. [para. 20].

Counsel:

Michael W. Owens, for the appellant;

Beverly L. Klatt, for the respondent.

This appeal was heard on October 23, 2015, before Jackson, Ottenbreit and Ryan-Froslie, JJ.A., of the Saskatchewan Court of Appeal. Ottenbreit, J.A., delivered the following judgment for the court on December 21, 2015.