Accused’s shaking of head did not clear up uncertainty as to whether he understood rights

APPLICATION

Accused’s shaking of head did not clear up uncertainty as to whether he understood rights

Accused appealed his conviction of care and control while driving over 80 and impaired. Trial judge found that officer found minimal Charter rights breach despite finding officer fabricated his explanation for trespassing on property and that he was engaged in fishing expedition. Judge found no breach of right to counsel on grounds officer read accused his rights and breath demand, and that while accused was not responsive, he shook his head in negative when asked if he wanted to speak to counsel. Trial judge reduced accused’s fine by $400 citing s. 24(2). Appeal allowed, accused acquitted. Trial judge erred in finding no violation of accused’s right to counsel as informational component was lacking given accused was essentially non-responsive. Appeal entered as fabricating evidence should have been classified as more than minimal breach. Trial judge erred in law as there was no evidence capable of supporting conclusion that accused “appeared to understand”. Accused’s shaking of his head in negative did not clear up uncertainty as to whether he understood his right to counsel. Trial judge further erred in applying remedy as reducing fine would only have been option under s. 24(1) which was not applicable.
R. v. Willoughby (May 28, 2012, Ont. S.C.J., Conlan J., File No. CR 808/11) 102 W.C.B. (2d) 561 (15 pp.).