RIGHTS TO COUNSEL: ISSUE IDENTIFICATION IN THE IMPAIRED DRIVING CONTEXT

Prepared by Adam Weisberg and Samiyyah Ganga

The purpose of this short paper is to assist defence counsel with identifying Section 10(b) issues in impaired driving cases. 

In this area of the law – details matter.  The Charter will almost always be your client’s only chance at a successful defence in cases involving readings at 80 or over 80 mgs/100 ml of alcohol.  

The old-timers will tell you about how back in the day all you needed was a toxicologist and four of your client’s closest friends that meticulously watched him consume exactly two pints of beer and one perfectly measured shot of vodka over the course of six hours to win a case.  

Most of the technical requirements that often went unfulfilled and resulted in acquittals have been simplified or removed as of late 2018.  Your client’s only hope at victory will often be the Charter. And, as I’ve said – in this area – details matter.

 

THE BASICS: SECTION 10(B) RIGHT TO COUNSEL

Section 10(b) of the Charter reads: 

“Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.” 

Section 10(b) is intended to ensure that individuals know of their right to counsel and have access to it in situations where they suffer a significant deprivation of liberty, are vulnerable to the exercise of state power, and are in a position of legal jeopardy. Specifically, the right to counsel helps to mitigate the legal disadvantage faced by detainees and guards against the risk of involuntary self-incrimination. The right supports the detainee’s right to choose whether to cooperate with the police investigation by giving them access to legal advice. 

28. v. Suberu, 2009 SCC 33 at para 40; R. v. Willier, 2010 SCC 37 at para 28; R. v. Sinclair, 2010 SCC 35 at paras 26-28. 

Section 10(b) has two components. 

First, the informational component requires that the detainee be advised of their right to counsel without delay. The informational component of s. 10(b) also includes the requirement that the detainee be informed of the existence and availability of duty counsel and Legal Aid. 

Second, the implementational component requires that the detainee be given the opportunity to exercise their right to consult counsel. This component requires the police to refrain from eliciting incriminating evidence from the detainee until the detainee has had a reasonable opportunity to contact a lawyer, or the detainee unequivocally waived their right to do so. 

192. v. Suberu, 2009 SCC 33 at para 38; R. v. Brydges, [1990] SCR 190 at p. 206; R. v. Bartle, [1994] 3 SCR 173 at pp. 191-192. 

 

ISSUES IN THE IMPAIRED DRIVING CONTEXT

A finding that an accused’s s.10(b) rights were violated could lead to the exclusion of evidence, and in the impaired context, most commonly the exclusion of breath test results. The onus rests on the defence to establish that the accused’s s.10(b) rights were infringed or denied. When assessing a case to determine whether a s.10(b) breach occurred, counsel should consider the following questions: 

1. Was the detainee informed of their right to counsel and the existence and availability of Legal Aid and duty counsel?
2. How long after arrest did the police read the detainee their rights to counsel?
   1. Was there any reason to justify a delay in reading the detainee their right to counsel?
3. Did the detainee understand their s.10(b) rights?
   1. If not, was there any indication that the detainee did not understand their right?
4. Did the detainee request counsel of choice?
   1. What efforts did the police make to facilitate access to counsel of choice? Were there other ways the police could have contacted counsel of choice?
   2. How long until the detainee spoke to counsel? Was there an opportunity to speak with counsel at the roadside?
   3. If the detainee did not speak to counsel of choice, did they speak to duty counsel?
      1. Was the detainee made aware they could wait for counsel of choice?
      2. How long was it before the police put the detainee in contact with duty counsel?
5. Was the detainee given a reasonable opportunity to exercise their right to counsel? 
   1. Was the detainee given appropriate privacy to exercise their right to counsel?
   2. If the detainee did not speak to counsel, how long did the police wait before administering the breath test? Was there any urgency?
   3. Was the detainee reasonably diligent in exercising their right to counsel? If the detainee is found not to have been reasonably diligent in exercising their s.10(b) right, the implementational component of s.10(b) either does not arise or will be suspended. 
6. Did police refrain from eliciting evidence from the detainee until they had a reasonable opportunity to contact counsel?
7. Did the detainee waive their right? 

 

WHERE DO YOU START?

The first place to start is a detailed interview of your client to determine if there are any s. 10(b) Charter issues at play.  Some lawyers will state that they prefer to do this interview after receiving initial disclosure.  Our office normally does a detailed interview immediately upon being retained and then another interview once the disclosure has been received. The reason for this approach is that there may be valuable evidence to be preserved that could be beyond your grasp four to six weeks after the initial arrest when you receive disclosure. 

The next step is to do appropriate follow-ups with the lawyer(s) your client spoke to or attempted to reach. If your client spoke to duty counsel, you can request those notes from the duty counsel service with a direction from your client.    

Once disclosure has been received, we recommend the first thing you do is convert your disclosure into a chart that accurately reflects the timing of events.  This small effort will help defence counsel be able to better identify all Charter issues in the case. Attached as Appendix “A” to this paper is a sample chart of an impaired driving case. 

 

WHEN IS 10(B) A LIVE ISSUE?

The s.10(b) right to retain and instruct counsel without delay is temporarily suspended during roadside investigations into the sobriety of drivers when the investigation is conducted with dispatch. 

Police are not required to give a detainee their s.10(b) rights during a brief lawful Highway Traffic Act stop and investigation or roadside sobriety check. The s.10(b) right is no longer suspended when the police form grounds for arrest. 

1. v. Thomsen, [1988] 1 SCR 640; R. v. Orbanski; R. v. Elias, 2005 SCC 37

Roadside investigations, for the purpose of the suspension of rights, include public parking lots.

1. v. Ndaye, 2019 ONSC 4967; R. v. Droog, 2022 ONSC 5033

Section 10(b) is suspended during the detention of a driver whose sobriety is being tested via a screening device. However, where there is a delay in accessing a screening device, the suspension of s.10(b) is no longer in effect. Where there is a delay in getting the screening device, police must consider whether they can realistically fulfill the s.10(b) rights before requiring compliance with the screening device. If a detainee could have reasonably consulted counsel in the time it took for the ASD to arrive, a s.10(b) breach is established. 

1. v. Harris, 2007 ONCA 574; R. v. Sillars, 2022 ONCA 510 at para 36; R. v. Beattie, 2009 ONCJ 456; R. v. MacMillan, 2019 ONSC 3560; R. v. Kubacsek, 2021 ONSC 5081

 

• DELAY

The police duty to inform an individual of their s.10(b) Charter right to retain and instruct counsel is “without delay” upon arrest or detention. 

The words “without delay” mean “immediately” for the purpose of s.10(b). The immediacy of this obligation is subject only to legitimate concerns for officer or public safety. Officers are entitled to take reasonable steps to ensure their safety, public safety, and the detainee’s safety prior to reading the rights to counsel. This may include searching the detainee incident to arrest, placing the detainee in a safe location like the back of a police vehicle, or moving the vehicle if it poses a danger to the public. Assessing the reasonableness of delay in affording the right to counsel involves a fact-specific determination 

1. v. Suberu, 2009 SCC 33 at paras 41-42; R. v. La, 2018 ONCA 830 at para. 39; R v Brewster, 2022 YKTC 6

Even minor delays in a detainee being read their rights to counsel have been found to be a s.10(b) breach. For example:

• R. v. Medeiros, 2015 ONCJ 707 (RTC read 4 min after arrest)
• R. v. Soomal, 2014 ONCJ 220 (4 min)
• R v Ahmad, 2015 ONCJ 620 (7 min)
• R. v. Simpson, 2017 ONCJ 321 (7 min)
• R. v. Davis, 2018 ONCJ 147 (8 min) (breach conceded by the Crown)
• R. v. Kou, 2019 ONCJ 966 (7 min)
• R. v. Maan, 2022 ONCJ 168 (6 min)
• R. v. Foreman, 2022 ONCJ 214 (9 min)
• R. v. Pillar, 2020 ONCJ 394 (8 min)
• R. v. Tharmalingam, 2022 ONCJ 304 (5 min)
• R. v. Ranger, 2019 ONCJ 413 (3 min)

• COMPREHENSION

Section 10(b) requires police to inform a detainee of their rights in a manner in which they can understand. 

Absent special circumstances indicating that a detainee may not understand, police can assume that a detainee fully understands the s.10(b) caution. Relevant circumstances include factors such as age, education, sophistication, language, and mental condition. Where there is a positive indication that the detainee does not understand the rights read, then police must take steps to ensure the detainee understands. 

1. v. Bartle, [1994] 3 SCR 173 at para 19; R. v. Evans, [1991] 1 SCR 869

Special circumstances arise when there is some objective evidence that a detainee’s comprehension of the English language may be inadequate. This requires more than a detainee having a strong accent. If there is some evidence that the detainee does not adequately understand English or French to understand their right, there is an onus on the police to take some meaningful steps to ensure that the accused understands their rights in a meaningful and comprehensible way. The failure of a detainee to ask for an interpreter or duty counsel who speaks a specific language is not determinative. Similarly, the fact that the detainee spoke with duty counsel is not necessarily conclusive, particularly where the conversation with duty counsel was brief. Courts have found s.10(b) breaches even where the detainee spoke to duty counsel and neither the detainee nor duty counsel expressed any difficulty or dissatisfaction with that communication. 

1. v. Nguyen, 2017 ONCJ 393; R. v. Grichko, 2006 ONCJ 233; R. v. Peralta-Brito, 2008 ONCJ4; R. v. Oliva Baca, 2009 ONCJ 194; R. v. Robi, 2021 ONCJ 628

A subjective belief by the officer that the detainee understood English is not sufficient to disprove a s.10(b) breach where special circumstances exist that require the police to ensure the detainee understands their rights.

1. v. Ryrak, 2007 ONCJ 350

Special circumstances can also include an apparent mental disability. Where a detainee is so intoxicated, they cannot understand their rights, police must delay questioning until the detainee is sufficiently sober to properly understand their rights and either exercise or waive that right. Other special circumstances can include where the detainee suffers physical injury such as a concussion and is unable to comprehend their rights as read to them.  

 

• ROADSIDE IMPLEMENTATION

As stated above, the right to counsel is suspended at the roadside – during a brief traffic stop or a roadside sobriety check. However, when the police form grounds to arrest, or there is a delay in accessing a screening device, the s.10(b) right is no longer suspended. 

When a detainee indicates a desire to speak to counsel, the police are obliged to take reasonable steps to facilitate access to counsel at the first reasonable available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances. The suspension of the right to counsel must only be for so long as is reasonably necessary. 

1. v. Taylor, 2014 SCC 50 at para. 24

The suspension of the right to counsel will be permitted where there are reasonable grounds to believe that police or public safety may be imperiled if the right to counsel is permitted to be exercised immediately. 

1. v. Rover, 2018 ONCA 745 at paras 25-27

The longer the delay, the greater the need for justification. In some circumstances, police may be required to facilitate contact with counsel at the roadside, particularly when there will be a considerable delay in transporting the detainee to a police station to conduct a breath test.

A short delay in putting a detainee in contact with counsel may be justified if there is no phone immediately available that would permit the detainee having a private conversation with counsel. However, detainees may have privacy in a secure police cruiser at the roadside and can use a cellphone. 

The Quebec Court of Appeal has found a s. 10(b) violation, leading to the exclusion of evidence, where the police did not allow the detainee to use a cell phone at the roadside. The Court of Appeal found that once the detainee invokes their right to counsel at the scene of the arrest, the police must turn their minds to allowing the arrestee to consult with counsel at the scene. There will, however, be circumstances where it simply will not be feasible due to legitimate officer or public safety concerns. 

In cases where the detainee is cooperative and there are no risks of flight or safety concerns, the police officer can take steps to verify who the detainee is calling, such as confirming with the recipient of the call that they are counsel – to address any lingering safety concerns. Where the detainee has all the tools to contact counsel at the roadside i.e., a phone number for counsel and a cellphone, the police may be required to facilitate that contact at the roadside. 

1. v. Mitchell, 2018 ONCJ 121 at paras 30-33; R. v. Perez Mejia, 2019 ONCJ 129 at paras 131-139; R c. Tremblay, 2021 QCCA 24 at paras 52-53; Freddi c. R, 2021 QCCA 249 at paras 40-45; R. v. Kalyanaramier, 2020 ONCJ 348 at paras 22-26

See for example also:  R. c. Whitehead, 2017 QCCQ 6788; R. c. Boivin, 2017 QCCQ 8130; R. c. Maurice, 2015 QCCQ 12023; and R. c. Chassé, 2012 QCCQ 2448.

Defence counsel must query if there were any specific circumstances justifying the delay in facilitating access to counsel at the roadside and whether the police turned their minds to the issue. Some factors to consider include:

1. How long did police spend at the roadside prior to departing to the station? A longer wait may mean the police should have facilitated access to counsel at the roadside 
2. How long was the drive to the police station? 
3. Was the accused cooperative? Were there any flight or safety concerns?
4. Were there any concerns about preserving evidence?
5. Where did the arrest take place? Was there a high volume of traffic causing safety concerns?
6. Was there a cellphone available? Did the accused have a lawyer’s contact information or a way of looking for the contact information? 

The fall in a detainee’s blood alcohol content by virtue of the process of metabolizing alcohol cannot plausibly be a factor (as it was in the past) for police cutting corners on a detainee’s access to counsel or providing counsel to choice because s. 320.31(4) of the Criminal Code now allows a trier of fact to ‘read-back’ the BAC to the two-hour window following care or control if the tests were taken more than two hours after care or control came to an end.

 

• COUNSEL OF CHOICE

Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s.10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amounts to a reasonable period of time depends on all the circumstances. 

35. v. Willier, 2010 SCC 37 at para 35. 

 

• COUNSEL OF CHOICE – RIGHT TO CONTACT THIRD PARTY

When a detainee asks to speak to a third party to seek information about finding counsel or facilitating access to counsel of choice, the police are obliged to facilitate that contact. 

This does not mean that a detainee must always be permitted to call friends or relatives. Unless the detainee explains that the purpose of the call to a third party is to obtain a lawyer’s phone number, the police are not obliged to facilitate the contact. The police are not required to be mind-readers. However, where the officer is unclear as to the reason why the detainee wishes to speak to a third party, and it might relate to contacting counsel, the officer must clarify the issue. 

1. v. Kumarasamy, [2002] OJ No. 303 at para 25 (SCJ); R. v. Yang, [2019] OJ No. 2529 at para 28 (SCJ); R. v. Mumtaz, 2019 ONSC 468 at paras 25-28; R. v. Jeyalingam,2021 ONCJ 433 at paras. 27-31; R. v. Zhang, 2019 ONCJ 851 at paras. 36-40

 

• COUNSEL OF CHOICE – SUFFICIENT EFFORTS 

When someone is detained, they are placed in a position of disadvantage relative to the state. That position of disadvantage extends to the detainee’s ability to contact counsel. The police may not then further that ‘position of disadvantage’ by withholding the basic tools required for a detainee to locate counsel of their choosing for the purpose of immediate consultation. Where the police assume the responsibility of making first contact, as is the general practice in Ontario, rather than providing the detainee with direct access to a phone or internet connection, they must be taken to have “assumed the obligation to pursue the detainee’s constitutional right to access counsel as diligently as they would have. However, while the police must be reasonably diligent in assisting the detainee in exercising the right to counsel, they are not required to exhaust all reasonable means for the detainee to speak with a lawyer. The test is not whether the police could have done more but rather whether the police provided the detainee with the necessary information and assistance to allow the detainee to exercise their rights. 

1. v. Jarrett, 2021 ONCA 758 at para 43

Often arrests for impaired driving occur late at night where it may not be easy to contact counsel of choice. It is not uncommon for police efforts to begin and end with a call to a single phone number and a voicemail. Arguably, this single call does not amount to reasonable diligence. The following are other steps the police could take to facilitate access to counsel of choice, the absence of which could amount in a failure to make sufficient efforts to contact counsel of choice.

 

1. Use of a telephone book or law society directory to find a phone number for counsel
2. Use of an Internet search to locate any and all phone numbers for the detainee’s counsel of choice
3. Locating a website for the counsel of choice which will likely include a phone number and/or email to contact counsel
4. Contacting other associates at the law firm by telephone

Alberta has adopted a different approach than in Ontario. In Alberta, a detainee is advised by virtue of the province-wide Charter caution that if they wish to contact any lawyer other than one from the free legal advice service provided, then police will provide the detainee with a telephone and telephone book. The police also commonly provide an iPad to the detainee so they may use that to find contact information for counsel themselves. 

1. v. Akot, 2000 ABPC 100; R. v. Willier, 2010 SCC 37 at para 35; R. v. Alaia, 2017 ABPC 74 at para 107; R. v. Bell, 2020 ABPC 107; R. v. Carlson, 2015 ABPC 170 at para 26

 

• COUNSEL OF CHOICE – STEERING TO DUTY COUNSEL

The police cannot suggest or recommend a specific lawyer to a detainee, including duty counsel. Detainees must be made aware of their right to make a reasonable effort to find a counsel of choice rather than being directed toward duty counsel believing that if they do not have a specific lawyer in mind, that is the only other option available. Alberta may be a useful comparison on this point where, as indicated above, the police will provide the detainee with a telephone and telephone book and/or iPad so that the detainee can find a counsel of choice. As such, every detainee is made aware that even if they do not have a specific lawyer in mind, they can still find a counsel of choice. 

1. v. Akot, 2000 ABPC 100; R. v. Bell, 2020 ABPC 107; R. v. Willier, 2010 SCC 37 at para 35

The availability of duty counsel also cannot be used by the police as an excuse to ignore a request by the accused to speak with counsel of choice. The police should advise the detainee that they can wait for a reasonable period to find their counsel of choice instead of pushing them to speak with duty counsel. What consists of a reasonable period depends on the circumstances. The potential to exceed two hours until the breath test does not, by itself, give rise to a level of urgency that displaces the right to consult with counsel of choice. In particular, with the new read-back provision in the Code, there is no longer a two-hour time limit and urgency to displace the right to contact counsel of choice in an impaired driving case. 

1. v. Kiritpal, 2019 ONCJ 434 at para 95; R. v. Vernon, 2015 ONSC 3943; R. v. Kumarasamy, [2002] OJ No. 303 at para 20 (SCJ). R. v. Edwards, 2022 ONSC 3684 at para 72, 83

The Crown has the burden of establishing that a detainee who invoked their right to counsel was provided with a reasonable opportunity to exercise their right.

12. v. Luong, 2000 ABCA 301 at para 12.

 

• PRIVACY

The right to consult counsel in conditions of privacy is a fundamental component of s.10(b). 

A court must examine all of the circumstances in assessing whether there has been a s.10(b) breach based on an alleged absence of privacy. In some cases, even where there is actual privacy, but the detainee reasonably believes they could not speak with counsel in private, then section 10(b) may be violated. 

The fact that an accused person is in the hospital does not create a blanket exception to the right to consult counsel in private. Where the individual has requested access to counsel and is in custody at the hospital, the police have an obligation under s. 10(b) to take steps to ascertain whether private access to a phone is in fact available, given the circumstances. Since most hospitals have phones, it is not a question simply of whether the individual is in the emergency room, it is whether the Crown has demonstrated that the circumstances are such that a private phone conversation is not reasonably feasible. 

1. v. Taylor, 2014 SCC 50 at paras. 31, 34

In R. v. Comeau [2001] OJ No. 3036 (SCJ), the accused had his counsel call audio and

video recorded by Peel Regional Police. Mr. Comeau had been charged with dangerous driving causing death and dangerous driving causing bodily harm. Defence counsel made an application for a stay under section 24(1) of the Charter and the application was allowed. As noted by Justice Mossip at para 43: “I find that there was an egregious breach of Mr. Comeau’s s. 10(b) Charter right to counsel in private, a serious breach of the s. 7 principle of fundamental justice, and a flagrant invasion of solicitor client privilege, all of which is captured on a videotape under the control of the police, and by evidence of the Crown, potentially viewed by the police.”

 

Recently, in Peel, a nearby breath-room video was capturing the audio of a detainee’s private call with counsel.  This apparent breach led to the Crown staying the charges. This may be a systemic issue in Peel which would exacerbate any future discovered 10(b) breaches of this nature. 

 

• THE DUTY TO HOLDING OFF

The police must refrain from eliciting evidence from a detainee until they have had a reasonable opportunity to consult with counsel. When a detainee who has previously asserted this right, indicates a change of mind and no longer wants legal advice, the police are obliged to advise of the right to a reasonable opportunity to contact counsel and their duty to hold off. If the detainee indicates that they changed their mind or no longer want legal advice, the Crown is required to prove a valid waiver. The standard for waiver is high. The waiver must be unequivocal and the burden of proving a waiver is on the Crown. 

1. v. Prosper, [1994] SCJ No. 72

Booking questions not intended to elicit evidence will typically not breach s.10(b).  For example, an officer asking, “have you taken any drugs today?” is asking that question for prisoner safety – not to elicit evidence. However, courts may still exclude answers to booking questions on the basis of trial fairness where the Crown seeks to admit answers to standard booking questions. 

1. v. Dupe, 2010 ONSC 6594; R. v. Mullins, 2015 ONSC 1552; R. v. Palumbo, 2020 ONCJ 584; R. v. Glasgow-Oliver, 2022 ONCJ 72 at para 297

 

• MISCELLANEOUS

• Paralegals/Non-Lawyers

Once an officer learns that the ‘counsel’ requested by the detainee is not in fact a lawyer, they are obligated to tell the detainee that fact. The police have an obligation to facilitate contact with “counsel” not a paralegal. A paralegal is not competent to provide s.10(b) advice. Where a detainee requests to speak to a paralegal. The police must explain the difference between a paralegal and counsel and assist the detainee in obtaining proper advice. 

1. v. Gownden, 2008 ONCJ 719; R. v. Augustine, [2019] OJ No. 3522 (OCJ); R. v. Vukasovic, 2010 ONCJ 661; R. v. Alenich, 2022 ONCJ 161

 

• Disparaging counsel

Police may not comment on the value of legal advice, nor may they denigrate the role of counsel in order to induce an accused to answer questions. An officer commenting that an accused would not reach their counsel at the time of night may discourage the accused from contacting counsel and could constitute a breach of s. 10(b). Police can also unintentionally undermine the legal advice provided to a detainee. Where police conduct causes the detainee to doubt the legal correctness of the advice they received or the trustworthiness of their lawyer, then police have “undermined” the legal advice that the detainee received. If there are objectively observable indicators that the legal advice provided to a detainee has been undermined, the right to a second consultation arises.

1. v. Buck, 2008 NSPC 67; R. v. Dussault, 2022 SCC 16 at paras 40-45

 

• Change in jeopardy

Police are not generally required to provide a second consultation with a lawyer in between breath tests even upon the detainee’s request. Police are constitutionally required to provide a detainee with another opportunity to contact counsel where there is an objectively observable change in circumstances that suggest re-consultation is necessary in order to serve the purpose underlying s.10(b).  

1. v. Sinclair, 2010 SCC 35 at para 48

Unless the detainee indicates, diligently and reasonably, that the advice received was inadequate, the police may assume the detainee is satisfied with the exercised right to counsel. 

1. v. Willier, 2010 SCC 37 at para 42

 

• Waiver

Once a detainee asserts their right to counsel and is duly diligent in exercising their right but then indicates they no longer want legal advice, the Crown must prove a valid waiver of the right to counsel.  In these circumstances, the police will have an additional informational obligation to give a Prosper warning.  The warning must inform the detainee of their right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police, during this time, to not take any statements or require the detainee to participate in any potentially incriminating process until they have had that reasonable opportunity.  Without this warning, a s.10(b) infringement will be made out.

1. v. Luong, 2000 ABCA 301 at para. 12
2. v. Prosper, [1994] 3 S.C.R. 236
3. v. Fountain, 2017 ONCA 596

 

ISSUES FOR SECTION 24(2)

The most common piece of evidence that is sought to be excluded in impaired driving cases are breath test results. In some cases, a refusal to provide a breath sample could be excluded based on a s.10(b) breach.

1. v. Fletcher, 2021 NSPC 55

The analysis for exclusion of evidence is governed by the three factors set out in R v Grant, 2009 SCC 32: 

• The seriousness of the Charter-infringing state conduct

The right to counsel is a fundamental protection of an accused’s interests in liberty and autonomy. Section 10(b) breaches are serious. Where the accused was deprived of the right to speak with counsel, the violation is serious and not inadvertent – especially where there was no need to rush to take the breath samples. That the police did not act deliberately does not lessen the nature of the s. 10(b) breach. The law surrounding s.10(b) has been settled for many years. The defence should argue that the police were not acting in good faith when breaching the accused’s rights. 

80. v. Noel, 2019 ONCA 860 at paras 23-25; R. v. McGuffie, 2016 ONCA 365 at para. 80. R v Mann, 2021 ONCA 103 at para 29; R. v. Rampersaud, 2018 ONCJ 697 at para 48; R. v. Ma, [2017] OJ No. 897 at para 36 (OCJ); R. v. Iftikhar, 2022 ONCJ 361; R. v. Edwards, 2022 ONSC 3684 at para 91-92

An important factor to consider is whether the s.10 (b) breach is systemic. For example, courts, including the Court of Appeal, have noted that there are numerous cases involving Peel Police delaying giving detainee rights to counsel. Courts have also noted a similar problem with the Ottawa Police Service. Similarly, there has been recent media attention to Peel Police 12 division recording detainee calls with counsel. Consider whether you can establish a pattern of breaching conduct by the police which is an aggravating factor favouring exclusion. 

 

1. v. Thompson, 2020 ONCA 264 at paras 92-94; R. v. Kou, 2019 ONCJ 966; R. v. Simpson, 2017 ONCJ 321; R. v. Pillar, 2020 ONCJ 394

 

A minor s.10(b) breach, when compounded with other Charter breaches, can show a clear disregard for a detainee’s Charter rights. Multiple Charter breaches tend to aggravate the overall seriousness of the violations.

1. v. Davidson, 2017 ONCA 257 at para 48; R. v. Adler, 2020 ONCA 246 at para 26; R. v. Brown, 2020 ONCJ 193 at para 194

 

• The impact of the breach on the Charter-protected interests of the accused

On the second branch of the Grant analysis, the court must consider the extent to which the breaches undermined the interests protected by the infringed right. In breath sample cases, the impact of the breach on the particular accused must be assessed. There is no automatic exclusion or inclusion. Delay in informing a detainee of their right to counsel may be found to have a low impact if the police did not attempt to elicit evidence. Where police fail to facilitate access to the accused’s counsel of choice, the accused is deprived of a significant lifeline while detained. Where a detainee spoke to duty counsel and the police do not elicit any incriminating evidence, the impact of the breach is arguably lessened. However, this does not mean that a s.10(b) breach will not have an impact on the accused, particularly the deprivation of guidance from a trusted counsel which affects the detainee’s decision on whether to give samples of their breath. Courts have found breaches of s.10(b) to cause the detainee prejudice even though they spoke to duty counsel.

1. v. Sefton, 2022 ONSC 1429; R. v. McFadden, 2016 ONCJ 777; R. v. Augustine, [2019] OJ No. 3522 at para 28 (OCJ); R. v. Iftikhar, 2022 ONCJ 361 at paras 69-71; R. v. Thompson, 2020 ONCA 264; R. v. Edwards, 2022 ONSC 3684 at paras 95-96

• Society’s interest in an adjudication on the merits.

Exclusion of breath samples will almost invariably gut the prosecution’s case. However, while serious cases result in a general interest in prosecuting such cases on the merits, it should not be relied upon to justify the admission of evidence in all cases, particularly where the first two branches weigh in favour of exclusion. The public “also has a vital interest in having a justice system that is above reproach”, especially where the stakes for the accused are high. Where the first two factors favour exclusion, the third inquiry will seldom if ever tip the balance in favour of admissibility.

1. v. Grant, 2009 SCC 32 at para 84; R. v. Thompson, 2020 ONCA 264 at para 107; R. v. Brown, 2020 ONCJ 193; R. v. McGuffie, 2016 ONCA 365, at para. 63

APPENDIX A – EXAMPLE OF TIMING CHART

 

May 27, 2020
Time	Event	Source
18:43	PLUMMER receives call information	PLUMMER notes
18:43:12	911 call from ELGAZA at 180 Rambelwood Ln. ELGAZA advises D is ex-boyfriend and won’t leave the house, nothing physical	Detailed call summary
18:45:31	Call talker notes parties are screaming at each other. ELGAZA’s brother also O/S, now D is leaving	Detailed call summary
18:46:11	Call taker thought it was heard that D was drinking and now leaving in his car	Detailed call summary
18:47	KING receives call information	KING notes
18:47:11	ELGAZA says no drinking involved but D didn’t want to leave, D still standing outside
18:47:53	KING and PLUMMER dispatched	Detailed call summary
18:48:06	KING en route	Detailed call summary
18:48:23	ELGAZA says D is outside in black Mercedes SUV. ELGAZA refusing to look outside to see what direction D may go	Detailed call summary
18:49:05	PLUMMER en route	Detailed call summary
18:50:24	ELGAZA refusing to answer questions, saying she does not want police now that D is gone	Detailed call summary
18:51:30	ELGAZA hangs up and does not answer call-backs	Detailed call summary
18:56:50	PLUMMER runs queries on D	Detailed call summary
18:59*	While speaking to ELGAZA, PLUMMER observed vehicle matching description down the road, east of the house, parked on the street facing west bound. ELGAZA said this was D’s vehicle. KING parks behind vehicle, conducts queries on vehicle. R/O Sheila PATEL. PLUMMER speaks with D who ID’s as ZD,. PLUMMER advises D stated he had been drinking. Vehicle parked with keys in ignition in on position, between 155-159 Ramblewood. Front right rim scratches. KING searches male, smell of alcohol from mouth area, unsteady on feet. D provided his number as his mother’s. Speech slurred. KING called D’s mother as she is the R/O of the vehicle. Advised of impound. Vehicle towed.	KING notes *All of these notes appear under the same margin time but could not all occur at 18:59, per detailed call summary
18:59:49	KING O/S	Detailed call summary
19:00*	PLUMMER O/S, speaks with ELGAZA. ELGAZA says once D saw she called 911 he left in his SUV. While speaking with ELGAZA, PLUMMER observes black Mercedes SUV a few houses down, facing west, that wasn’t there when PLUMMER pulled up. Asked ELGAZA what D drove, she said black Mercedes SUV. PLUMMER asked ELGAZA if the vehicle was D’s (pointing to it), she said yes that’s him. PLUMMER and KING drove cruisers to the vehicle. PLUMMER sees a male reclined in the driver’s seat. D exited vehicle and verbally ID’d as Zev. PLUMMER asked D what he was doing. D said “I can’t drive I’m drunk.” PLUMMER activates ICC. PLUMMER asks D where the keys are. D advised “in it”. Confirmed keys in ignition. D’s eyes glossy, blood shot. Strong cologne smell. Couldn’t smell any alcohol. Asked D what he was drinking. D said vodka. Asked D when he was drinking. D said an hour ago. PLUMMER reads ASD from back of notebook. D understood. PLUMMER has D stand in front of camera. PLUMMER tests Alcotest 6810, last calibrated May 25, 2020. D provides sample on first try and fails.	Detailed call summary PLUMMER notes *All of these notes appear under the same margin time but could not all occur at 19:00, per detailed call summary
19:12:06	KING runs queries on plate 501DRA	Detailed call summary
19:12:34	KING runs queries on D	Detailed call summary
19:14:15	PLUMMER reading from notebook to D	PLUMMER ICC
19:16:35	D provides breath sample into ASD, fails, is cuffed to rear	PLUMMER ICC
19:17:38	D under arrest for 80 plus [PLUMMER actually arrested him for C&C – see ICC]. PLUMMER “said care and control out of old habit.” PLUMMER places D in rear of cruiser	Detailed call summary PLUMMER notes PLUMMER ICC
19:18:53	PLUMMER provides RTC/caution for “care and control”. PLUMMER does not ask ‘DYWTSWALN’. D asks to call his mom. PLUMMER says “you can’t but I can for you ok? When we get to the station”	PLUMMER ICC
19:19:34	PLUMMER provides RTC: “Yes I understand”	Detailed call summary PLUMMER notes
19:19:49	PLUMMER provides caution: “Yes”	Detailed call summary PLUMMER notes
19:20:38	PLUMMER provides breath demand: “Yes I understand”. PLUMMER removes D from cruiser to complete SITA	Detailed call summary PLUMMER notes
19:20:55	PLUMMER asks questions about car ownership. In course, D provides his mother’s number	PLUMMER ICC
19:21:34	PLUMMER runs queries on D	Detailed call summary
19:23:53	D removed from cruiser for pat down search, then placed back in rear	PLUMMER ICC
19:24	Breath tech LEMMON r/c to attend breath facility. LEMMON en route to breath facility.	Alcohol influence report
19:25	Breath tech LEMMON O/S at breath facility	Alcohol influence report
19:25:25	PLUMMER transports D to station. While en route, D wanted to talk about personal relationships. Head kept dipping, possibly falling asleep. Hard to understand, mumbling.	Detailed call summary PLUMMER notes PLUMMER ICC
19:26:40	D asks for handcuffs to be loosened, denied	PLUMMER ICC
19:27:02	D asks for his phone, denied	PLUMMER ICC
19:29:37	Tow en route	Detailed call summary
19:30:12	PLUMMER and D have conversation where D repeats that he was parked and the car was off. PLUMMER says D was in the driver’s seat with the keys in the ignition. D agrees.	PLUMMER ICC
19:32:56	KING runs queries on VIN	Detailed call summary
19:42:59*	PLUMMER arrives at station with D. Booked by JAMES. D searched in cell block and lodged in cell 2. D stated he would like his mom called to get him a lawyer. KING speaks to mother, who provided lawyer Daniel BROWN: 416-898-2097	Detailed call summary PLUMMER notes PLUMMER ICC
19:43:10	Arrive in Sallyport	Sallyport video
19:44:25	PLUMMER exits cruiser, D begins crying	PLUMMER ICC
19:46:30	Officer and Booking sergeant have conversation. Booking sgt asks “lawyer?”. Officer replies “I haven’t got that far with him, probably duty counsel”	Booking desk overhead
19:47	D booked into cells by JAMES. JAMES reviewed options for counsel with D: family (mom), Internet, D/C. D wanted to call his mother for a lawyer. Phone # retrieved from his phone. D states that his car was parked during booking.	Arrest/booking report JAMES notes
19:48:20	D exits cruiser	PLUMMER ICC Sallyport video
19:48:40	In booking hall. Officer asks, “do you understand reasons for your arrest?”. D says, “I was parked, my car was off, it was parked”.	Booking desk overhead
19:49:25	Asked if he remembers them reading RTC. D says yes. Asked if he wishes to call a lawyer. D says “my mom”. Given options: “We can call your mom and she can give us a lawyer for you, can search the internet for a lawyer, if you have a personal lawyer, can call duty counsel” Asked if he wants to call his mom to get a lawyer, D says yes	Booking desk overhead
19:50	KING completes statement of neighbour MAOR, who says he saw D driving the vehicle before and after police were O/S	KING notes MAOR statement
19:51:02	caution	Booking desk overhead
19:59:42	D says his mom’s number is on his phone, says he doesn’t remember it. Officer gives ZD his phone to look for the number	Booking desk overhead
20:04:03	D exits booking hall and enters cell	Booking hall videos and cell video
20:07	KING speaks to ELGAZA who refuses to give a statement PLUMMER provides breath tech LEMMON w grounds for arrest	KING notes PLUMMER notes
20:18	KING speaks to D’s mother. Was advised by PLUMMER that D would like mother’s lawyer. Mother provided Daniel BROWN, 416-898-2097. Provided info to PLUMMER	KING notes *Why half an hour of delay until mother is called?
20:22	ZD uses toilet in cell	Cell video
20:22	PLUMMER calls BROWN and leaves a message	PLUMMER notes
20:35	PLUMMER advises D no reply by lawyer. Asks D if he wants D/C. “No wants to wait for lawyer”	PLUMMER notes 8:32 acc to cell video. Conversation lasts approx. 1 minute
20:36	PLUMMER calls and leaves another message for BROWN. Locates second number for lawyer on LSO. “Called – neg”	PLUMMER notes
20:39	PLUMMER asks D if he wants another lawyer tried or D/C as still no response by lawyer. D said he wants to talk to his mom. No other lawyer.	PLUMMER notes *PLUMMER should have allowed D to speak to mother again 8:40 acc to cell video. Conversation lasts approx. 2 minutes
20:46	PLUMMER calls lawyer – neg. Rings once now direct to voicemail	PLUMMER notes
20:54	PLUMMER calls lawyer, no rings	PLUMMER notes
20:56	PLUMMER turns D over to breath tech LEMMON LEMMON notes D is orderly with watery eyes.	PLUMMER notes Alcohol influence report Cell video and cell hallway video and breath room video
20:39:53	D talking to officer	Cell video
20:40:30	D talking to officer	Cell video
20:57	“Spoke to accused in cell. Advised of lawyer and D/C. says only lawyer. Explained lawyer – doesn’t want anyone else”	Alcohol influence report* *The first two sentences have no margin time noted (note: probably 20:40
20:57:25	Tech: the lawyer your mother provided, there’s been several phone calls made, two voicemails left, there’s been no return of his phone call. ZD: ok Tech: do you know of any other lawyer or do you want to speak with duty counsel before we commence? ZD: can I speak to my mom? Tech: no ZD: alright Tech: we can only facilitate that phone call, we only speak to her, you can’t speak to her. But when they spoke to her that was the name and phone number, she provided ZD: Ok Tech: Unfortunately we’ve tried 4 times including calling his office, which then directs over to his cell phone, and [indiscernible – various people (?)]to voicemail. So we’ve had no contact with him ZD: Ok Tech: And he hasn’t returned the voicemail calls or nothing like that. Is there any other lawyer or any, or do you want to speak to duty counsel before we commence? ZD: Uh, I’m not gonna talk, no	Breath tech video Why no second call to mother? Not a clear waiver
20:58	Breath tech LEMMON provides breath demand and secondary caution: “Ya” / “Alright”	Alcohol influence report
21:00	Tech: if your lawyer does call between now and while we’re commencing this test, we will stop it and then we will facilitate you speaking to him. If he checks his messages, whatever, like I said, aside from sending out pigeons with notes and everything else, we’ve tried and exhausted all options to get a hold of him D asks what will happen if he refuses to blow, breath tech LEMMON advises him re: legal ramifications	Breath tech video Leaves D with impression that no other option of contacting counsel of choice. D clearly wants legal advice
21:04	First sample: 217	Alcohol influence report
21:04:51	KING arrives at station	Detailed call summary KING notes
21:05	D escorted back into cell #2	Alcohol influence report Cell video
21:22	D back into breath room	Alcohol influence report Breath room video and hallway video
21:24:50	Tech: this is the mouthpiece etc ZD: oh I have to do it again Tech: yep, you do 2 of them, that’s to benefit you	Breath room video
21:27	Second sample: 202	Alcohol influence report Breath room video
21:28:22	Tech: your first reading came out at 202, you’re over the legal limit. You’ll get released when your numbers come down	Breath room video
21:29	Breath tech LEMMON returns D to PLUMMER. D placed back into cell 2. PLUMMER completes release documents	PLUMMER notes Alcohol influence report Hallway and cell video *D never speaks to a lawyer
21:55:39	KING runs queries on ELGAZA	Detailed call summary
21:56:42	KING runs queries on D	Detailed call summary
22:15	ZD uses toilet in cells	Cell video
22:20	JAMES speaks to D’s parents at front desk. Advises he is waiting for paperwork and wanted to ensure D had capacity to understand release forms	JAMES notes
22:42	Officer completing paperwork	JAMES notes
22:56	D exits cell to booking hall, receives docs	Cell video, booking hall videos, hallway video
23:06	JAMES stands by while D served documents to ensure his ability to understand. D released to parents	Arrest/booking report JAMES notes
23:08	D exits booking hall	Booking hall video
23:10	PLUMMER serves service documents in cell block w/ JAMES who served release documents. D escorted out of booking to parents. Impound slip provided to D’s mother.	PLUMMER notes