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Milligan's Criminal Law Advisor | Change in Jeopardy

Milligan's Criminal Law Advisor | Change in Jeopardy

Change in jeopardy warranted another consultation with counsel

Milligan’s Criminal Law Advisor

By Jeffrey Milligan

The appellant was convicted by a jury of dangerous driving causing bodily harm and of assault with a weapon, namely a motor vehicle. The charges arose out of a road rage incident involving the appellant a driver of a van. Following a verbal altercation, the van driver cut off the appellant’s vehicle near a stop sign. The van driver then got out of his vehicle and approached the appellant. He reversed and then drove forward, striking the van driver and injuring him. The appellant’s position was that he was scared, tried to avoid hitting the van driver but lost control of his vehicle.

Following his arrest for dangerous driving causing bodily harm, the appellant was able to contact and then speak to duty counsel. The officer who was going to conduct a formal interview of the appellant then told him that, in addition to the charge of dangerous driving causing bodily harm, he would also be charged with assault with a weapon. The appellant asked to be able to speak to his own lawyer. The interviewing officer tried to contact the two lawyers named by the appellant, but while waiting for one of the lawyers to call back, the arresting officer told the interviewing officer that the appellant had spoken to duty counsel after his arrest. Upon hearing this, the interviewing officer concluded that the appellant had had an adequate opportunity to consult with counsel and, instead of waiting for the lawyer to call back, he proceeded with the interview.

The appellate authorities suggest that an accused is generally permitted only one consultation with counsel if he or she invokes his or her right to counsel. Put another way, an accused in custody generally does not have the right to repeated conversations with counsel. There are exceptions to this principle, one of which is when there has been a material change in circumstances such as a change in the jeopardy that the accused is facing.

The trial judge held that the new charge did not constitute a change in jeopardy that justified a second opportunity to consult counsel pursuant to R. v. Sinclair, [2010] 2 S.C.R. 310, 2010 CarswellBC 2664. Both charges arose out of the same transaction; both carry the same maximum penalty; and, in fact, the assault with a weapon charge is a hybrid charge whereas dangerous driving causing bodily harm was a straight indictable offence. Even if there had been a breach of s. 10(b), the trial judge found that the statement should not be excluded — the interviewing officer acted in good faith, he found, and the appellant repeatedly said that he wanted to tell his side of the story to the police. Thus, he concluded that the appellant would have spoken to the police anyway, even if he had spoken to his own lawyer.

A unanimous panel of the Ontario Court of Appeal held that the trial judge erred and allowed the appeal.

The assault with a weapon charge, as the Court of Appeal put it at para. 10, “ . . . significantly increased the appellant’s moral blameworthiness” in that it required proof that he acted intentionally to strike the van driver; thus, it was going to be alleged that his driving was not merely a “marked departure from the norm”. This, “ . . . in turn, markedly increased the potential penalty that the appellant faced”.

The Court of Appeal also rejected the Crown’s argument that the trial judge was justified in finding that the appellant would have provided a statement to police regardless of any legal advice about the additional charge. As they put it at para. 11, “ . . . it would be speculative to assume that the advice, and the accused’s reaction to that advice, would necessarily have been the same”. The new charge was “significantly different” and carried more serious potential consequences than did the charge of dangerous driving causing bodily harm. Moreover, the appellant asked to speak to his lawyer once he was advised of the new, potentially more serious charge.

The trial judge erred in finding no breach of s. 10(b) and the Court of Appeal held that the statement should have been excluded under s. 24(2) of the Charter. The seriousness of the breach warranted exclusion. Interestingly, the Court of Appeal held that third “Grant” factor — society’s interest in having criminal charges decided on their merits — did not strongly militate against excluding the statement because excluding the statement did not undermine the Crown’s ability to proceed (unlike, for example, excluding the results of breath tests in “over 80 mgs” prosecution).

A new trial was ordered.

R. v. Moore, 2016 ONCA 964, 2016 CarswellOnt 19828
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