E-BIKE IS A MOTOR VEHICLE

An e-bike is a motor vehicle as defined by the Criminal Code. R. v. O'Heare, [2011] O.J. No. 5315 (CJ)

SECTION 10(B) - NO BREACH WHERE ACCUSED UNHAPPY WITH LEGAL ADVICE

After being on the phone for 27 minutes with a lawyer, the accused said he wanted to call another lawyer because he was not happy with his consultation. He did not say why he was unhappy or that it was inadequate. It could not be said that it was inadequate because of brevity. Police told him he had his opportunity and proceeded with the breath tests. The court held that the accused's rights had not been breached. Neither the Charter nor any cases decided under it say that the police must continue to offer an accused the right to contact counsel until the accused is happy with the advice the accused receives after contacting counsel. To do so, without the accused providing an explanation why he is not happy with the advice he receives, would allow the accused “to delay needlessly and with impunity an investigation”. In this case the accused did not provide any explanation and police were entitled to move forward with the investigation. R. v. Tyisek, 2011 ABQB 560

SECTION 10(B) - NO RIGHT TO COUNSEL WHERE POLICE IN A POSITION TO ACT QUICKLY ON ASD DEMAND

The officer made an ASD demand. It took 4 minutes for the device to arrive. The accused argued that he had a cell-phone and should have been allowed to contact a lawyer before providing a sample of breath into the approved screening device. When he was allowed to call a lawyer it only took 6 minutes to reach the  lawyer and speak with him. The court did not agree. Since police were in a position to take the sample forthwith, the accused did not have a right to speak to a lawyer before doing so. R. v. Shaw, 2011 ABQB 584

SECTION 10(B) - RIGHT VIOLATED WHERE POLICE INTERFERE WITH CHOICE

The accused was placed in a telephone room with a phone book. The officer pointed out the number for Legal Aid on the wall. Three minutes later, the officer checked on the accused, he was flipping through the phone book. The officer assumed the accused was having difficulty finding a lawyer and pointed out Legal Aid's number again. He checked on him a second time, and accused told him he could not get an answer. Without asking the accused who he was trying to call, the officer assumed he was calling Legal Aid and dialed Legal Aid. The court found that the accused's right to counsel of choice had been violated. R. v. McCormack, 2011, ABPC 370

SECTION 10(A) - QUESTIONS ABOUT CONSUMPTION SUFFICIENT

Police stopped the accused for a hit and run. During the stop, the officer noticed an odour of liquor. He asked the accused if he had been drinking and he replied that he had. The accused argued that the officer should have informed him pursuant to section 10(a) that he was be investigated for impaired driving. The court said that based on the question regarding alcohol consumption, the accused would have known the investigation shifted from a hit and run to an impaired investigation and a more formal warning before was unnecessary.R. v. Menjivar, 2011 ABPC 355