Summary

36735

Zachry Owens v. Her Majesty the Queen

(Ontario) (Criminal) (By Leave)

Keywords

Canadian charter (Criminal) - Right to counsel (s. 10(b)).

Summary

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Charter — Right to counsel — Applicant arrested after failing roadside test — He stated he did not wish to speak with lawyer right now — At detachment, he gave breath samples indicating illegal blood-alcohol level — Accused convicted at trial — Conviction set aside by summary conviction appeal judge — Court of Appeal restored conviction — Whether Court of Appeal misapprehended summary conviction appeal judge’s reasons — Whether Court of Appeal erred in holding that trial judge reasonably found applicant had not invoked his right to counsel — Whether trial judge gave sufficient reasons for that factual finding — Canadian Charter of Rights and Freedoms, s. 10(b).

The applicant, Mr. Owens, was charged with operating a motor vehicle with blood alcohol in excess of the legal limit. Upon arrest, the police advised Mr. Owens of his right to counsel using the standard language from the O.P.P. issued card. The arresting officer asked Mr. Owens: “Do you understand?” and he answered: “Yes.” The arresting officer then asked Mr. Owens: “Do you wish to call a lawyer now?” and he replied: “No, not right now.” Mr. Owens was then taken to the police station where he provided breath samples. When Mr. Owens was returned to the arresting officer, that officer again asked whether he wished to speak to counsel. Mr. Owens replied: “No, I have nothing to hide”. He did not ask to speak to a lawyer at any point while in police custody.At trial, he brought an application to exclude the breath samples on the basis that his right to counsel under s. 10(b) of the Charter had been breached. The trial judge dismissed the application, holding that Mr. Owens had never invoked his right to counsel, and convicted him. On appeal, the summary conviction appeal judge set aside the conviction and entered an acquittal. The Court of Appeal restored the conviction.