Can't Breach or Waive what hasn't been Invoked

Owens was driving his pick-up truck. He was driving it badly. So badly that other motorists called 911. When police found Owens he had run out of gas and was pulled over on the side of the road- still sitting in the driver’s seat. Police formed a reasonable suspicion that Owens had been boozing. They issued a roadside demand; Owens failed. Upon arrest Owens was read his right to counsel. He told the officers he understood that right. Owens told the officers that he did not wish to speak to a lawyer right now.  Owens was taken to the police station and registered a blood alcohol concentration of twice the legal limit. After providing samples Owens was asked once more by the arresting officer if he wished to contact a lawyer. Owens responded that “the cat was out of the bag.”

At trial Owens argued that the breath samples should be excluded from evidence as his right to counsel was violated. Owens was convicted. Morneau J held that Owens had never invoked his right to counsel.

He appealed. The summary conviction appeal court disagreed with the trial judge. Miller J held that since Owens “did not unequivocally waive his rights, the collection of breath samples by the police before the respondent had a meaningful opportunity to contact counsel amounted to a violation of the respondent’s s. 10(b) rights.” [@para 12] Miller J concluded that the admission of the samples taken in this matter would bring the administration of justice into disrepute. Thus, she allowed the appeal, set aside the conviction and entered an acquittal. [@para 13]

The Crown successfully appealed to the Court of Appeal: 2015 ONCA 652.

Before turning to the issue on appeal the Court first considered whether leave should be granted. The Court found that the case was worthy of their consideration on both aspects of the test for granting leave:

First, it is important that lower courts have guidance regarding the correct analytical approach to applications under s. 10(b) of the Charter. The issue raised in this appeal, specifically, concerns whether a detainee is obligated to establish an invocation of his or rights as prerequisite to a consideration of the issue of waiver. This is an issue that frequently arises in the context of drinking and driving offences, but has broader implications for any investigation in which a properly informed detainee elects not to invoke his or her right to counsel. Thus, the proposed question of law has broad significance for the administration of justice in Ontario. [@para 19]

Second, the appeal is meritorious.

Turning then to the merits of the appeal the Court noted that “the issue of waiver of s10(b) rights only arises when the accused has established on a balance of probabilities that he invoked his right to counsel. [@para 22]

A finding of invocation (or not) is “essentially a question of fact”. [@para 28]

The Court held that: “[o]n the facts of this case, it was open to the trial judge to find that the arguably ambiguous statement “No, not right now” did not qualify as an invocation of the right to counsel.” [@para 29]

So the answer to the question of law with a broad significance for the administration of justice in Ontario is: you can’t breach or waive what hasn’t been invoked.