Nov 6, 2020

Summary of Kernaz v R

Kernaz v R, 2020 SKQB 223 (CanLII)
Criminal Law – Motor Vehicle Offences – Driving with Blood Alcohol Exceeding .08 – Conviction – Appeal, Constitutional Law – Charter of Rights, Section 10, Section 24(2) – Appeal
The appellant appealed from her conviction after trial in Provincial Court of driving while her blood alcohol content exceeded the legal limit contrary to s. 253(1)(b) of the Criminal Code. At trial, the appellant brought a Charter application in which she alleged: 1) that she had not been given her right to retain and instruct counsel without delay contrary to s. 10(b) of the Charter because after informing her of her right to counsel, the police waited approximately 20 minutes for a tow truck to arrive. The trial judge reviewed the police's actions and found that the delay was not unreasonable, and no breach had occurred; 2) that her right to privacy when consulting counsel had been breached. She testified that while she was speaking to a lawyer by telephone in the detachment interview room, she could hear voices outside it and looked up to see officers looking through the window of the door and had concerns that they may have overheard her communication with counsel. The officers testified that they were required to observe individuals in the interview room for the detainee's safety and to know when the consultation with counsel was complete and that they did not hear any of the appellant's conversation. The trial judge accepted the officers' testimony and found that the appellant's apprehension had not prevented her from properly instructing counsel, and there had not been a breach; and 3) that her right to counsel of choice was infringed. Upon calling a lawyer's office, a recorded message advised that another lawyer should be contacted. The appellant was able to speak to the alternative lawyer and then told the police that she was satisfied with the advice she received. The trial judge concluded that the police ought to have informed the appellant that they had not completed their efforts to obtain the first lawyer's home number, and this information would have allowed the appellant to express a preference for either the first or the second lawyer. This failure breached her rights to counsel. The judge concluded that she would not exclude the evidence of the appellant's breath tests under s. 24(2) of the Charter after conducting a Grant analysis in which she found that the breach was relatively minor and the impact was minimal. On appeal, the appellant argued the trial judge had erred in each of her findings regarding the Charter breaches and by failing to exclude the evidence after determining that her right to counsel of choice had been violated.
HELD: The appeal was dismissed. The court reviewed the trial judge's decisions respecting the alleged Charter breaches and whether the evidence should be excluded and found that, under the standards of review applicable to the trial judge's decisions regarding Charter breaches and the admission of evidence, she had not erred.