Right to counsel

The Ontario Court of Justice considered whether the failure of a police officer to specify the exact model number of an approved screening device (ASD) used to test blood alcohol content undermined reasonable grounds for arrest.

The Court relied on precedent from R. v. Gundy to hold that the officer’s testimony that an approved device was used, absent credible contradictory evidence, suffices to establish reasonable grounds.

The Court also addressed whether the arrest was unlawful because it was made for impaired driving rather than excess blood alcohol, concluding the arrest was lawful given the totality of circumstances and the officer’s subjective belief.

Finally, the Court examined alleged breaches of the right to counsel under s. 10(b) of the Charter, finding no breach where the accused was promptly given access to duty counsel despite some problematic comments by the breath technician.

The accused was found guilty beyond a reasonable doubt.

The Court of Appeal for Ontario considered whether the right to counsel under section 10(b) of the Charter requires police to provide a detainee with a renewed opportunity to consult counsel before a strip search incident to arrest.

The Court held that, given the highly invasive nature of strip searches, the right to reconsult is necessary to fulfill the purpose of section 10(b).

The Court found two additional Charter breaches: a 20-minute delay in informing the appellant of his right to counsel, and the failure to provide an opportunity to reconsult before the strip search.

However, after a fresh section 24(2) analysis, the Court concluded that the evidence was properly admitted and dismissed the appeal.

This decision clarifies the interpretation of "at trial" under section 25(4) of the Youth Criminal Justice Act (YCJA), holding that a young person is considered "at trial" from the moment they decide to contest charges, including during the pre-trial or case management phase, without requiring formal arraignment or plea.

The court emphasized the broad statutory right to counsel throughout all stages of proceedings, consistent with Parliament’s intent and international law commitments such as the UN Convention on the Rights of the Child.

The decision also recommends procedural reforms to allow YCJA section 25(4) applications to be submitted electronically and decided without formal hearings when uncontested, to conserve judicial resources and reduce burdens on vulnerable youth.

The Ontario Court of Justice considered whether a section 10(b) Charter breach occurred when police allowed the accused to speak to a paralegal instead of a lawyer after arrest for impaired driving and over 80 mg alcohol in blood.

The court found a breach because a paralegal is not authorized to provide legal advice in impaired driving cases, and police should have known this.

Despite the breach, applying the three-part Grant test, the court declined to exclude the breath sample evidence, finding the breach was of moderate seriousness, the impact on the accused’s rights was moderate, and society’s interest in reliable evidence favored inclusion.

The accused was found guilty on the over 80 mg charge.

This decision addresses multiple Charter issues arising from an impaired driving investigation, including voluntariness of statements, grounds and timing for an approved screening device (ASD) demand, and the right to counsel under sections 8, 9, and 10(b) of the Charter.

The court found the accused’s statements involuntary due to an inducement by police, but upheld the ASD demand as lawful with reasonable suspicion and no Charter breach in timing or delay in providing the right to counsel.

The accused was found to be the driver in care and control of the vehicle and impaired by alcohol beyond a reasonable doubt, resulting in convictions on both impaired operation and BAC ’80 plus’ charges.

This decision addresses the legality of a vehicle stop in a private hotel parking lot under the Highway Traffic Act (HTA) and the application of a Criminal Code driving prohibition order to such a location.

The court found that the HTA section prohibiting use of unauthorized plates applies in private parking lots and that the Best Western hotel parking lot constituted a "public place" under s 320.24(8) of the Criminal Code.

The accused’s right to counsel was breached technically by not repeating the right to counsel advice at the roadside upon arrest for driving while prohibited, but the breach was minor and did not justify exclusion of evidence.

The possession charge was dismissed due to insufficient evidence, but the remaining charges were proven beyond a reasonable doubt.

The appellant, Travis Babbington, appealed his conviction for first degree murder.

He argued that the trial judge erred in admitting his post-arrest statement to police, in instructing the jury on planning and deliberation, in failing to caution the jury about prior consistent statements, and in instructing on eyewitness identification.

The Court of Appeal dismissed the appeal, finding no error in the trial judge’s rulings or jury instructions.

The Court of Appeal for Ontario considered the powers of police to conduct a warrantless search of a vehicle and its occupants under s. 12(3) of the Cannabis Control Act, 2017.

The respondent, a passenger, was acquitted at trial after the judge found his Charter rights under ss. 9, 10(a), and 10(b) were infringed and excluded evidence of firearms found in the vehicle.

On appeal, the Court found the trial judge erred in concluding that the respondent’s rights under ss. 9 and 10(a) were violated, but agreed that s. 10(b) was breached.

The Court held that s. 12(3) of the CCA does not justify a general suspension of the right to counsel under s. 10(b), distinguishing the context from roadside sobriety stops.

The evidence was ultimately admitted, and a new trial was ordered.

This decision addresses a Charter application challenging the admissibility of breathalyzer evidence and other related evidence in a case involving impaired driving, operation with blood alcohol concentration over 80 mg/100 ml, and dangerous driving.

The court carefully analyzed the issues of identity of the driver, the reliability of the alcohol screening device (ASD) fail result considering residual mouth alcohol, the lawfulness of detention in the police cruiser during the alcohol screening demand, and the timing of the right to counsel.

The court found no breach of sections 8 or 9 of the Charter but did find a minor breach of section 10(b) due to a brief delay in providing the right to counsel.

The breathalyzer evidence was admitted, and the accused was found guilty of the "80 plus" offence but not guilty of impaired driving or dangerous driving.

Jian Chen was charged with trafficking one kilogram of ketamine.

The case involved a complex police investigation where Chen was not the initial target but was observed transferring ketamine to the target of the investigation.

Chen challenged the admissibility of evidence on the basis of breaches of his Charter rights under sections 10(a) and 10(b), specifically delays and failures in providing timely and effective rights to counsel due to language barriers and police procedural shortcomings.

The court found breaches of these rights but declined to exclude the evidence under section 24(2) of the Charter, considering the police acted in good faith and the breaches were contextually minor.

The court convicted Chen of trafficking, emphasizing the importance of reasonable police diligence in facilitating access to counsel of choice, especially in multilingual contexts.

The Ontario Court of Justice found Raymond Vitellaro guilty of impaired operation of a conveyance, dangerous operation, and refusing to provide a bodily sample following a multi-vehicle collision caused by his driving.

The court carefully analyzed the right to counsel issues, concluding no breach occurred despite delays in contacting his counsel of choice.

The evidence, including dashcam footage and credible witness testimony, established that Vitellaro drove dangerously at high speed, distracted by opening a bag of Cheetos, and was impaired by narcotic analgesics (suboxone).

His refusal to provide a bodily sample was not excused by his explanations and was proven beyond a reasonable doubt.

The court also dismissed a Charter s 11(b) application for delay, attributing most delay to the defence.

This Ontario Court of Justice decision addresses the application of sections 8 and 10(b) of the Canadian Charter of Rights and Freedoms in the context of impaired driving charges.

The accused, Jacques Joseph-Nicolas, challenged the admissibility of breath sample evidence on the basis that the demand for the sample was not made immediately upon formation of reasonable suspicion, and that his right to counsel was violated due to language barriers and inadequate access to his preferred francophone lawyer.

The court found that while the breath demand was timely under section 320.27(1)(b) of the Criminal Code, the police failed to take reasonable steps to ensure the accused understood his right to counsel in light of his limited English proficiency and francophone background.

The failure to provide adequate language assistance and to facilitate meaningful access to the accused’s chosen lawyer constituted a breach of section 10(b).

Applying the section 24(2) exclusion analysis, the court excluded the breath sample evidence and acquitted the accused of the alcohol concentration charge, while acquitting on the impaired driving charge due to insufficient evidence.

The Court of Appeal for Ontario dismissed Riley Kostuk’s appeal from his conviction for second degree murder.

Kostuk argued that his right to counsel under s. 10(b) of the Charter was violated, that the trial judge erred in admitting evidence of prior discreditable conduct, and that evidence of his schizophrenia was improperly admitted or not properly limited.

The court found no error in the trial judge’s rulings, holding that the appellant had an operating mind when consulting counsel, that the prior conduct evidence was properly admitted for motive and identity, and that the references to mental health did not prejudice the trial.

The appeal was dismissed.

This decision addresses the application of section 10(b) of the Canadian Charter of Rights and Freedoms concerning the right to counsel upon detention.

Dylan Smith was charged with two Highway Traffic Act offences related to a fatal accident.

The key issue was whether Smith was detained when he gave a statement in the back of a police cruiser without being informed of his right to counsel, thus triggering Charter protections.

The court applied the purposive approach to detention from R. v. Grant and R. v. Suberu, considering physical and psychological restraint.

It found that although Smith was not physically restrained or formally arrested, the circumstances—being isolated in the cruiser, cautioned about charges, and the power imbalance—amounted to detention.

Consequently, his right to counsel was engaged and denied, leading to exclusion of the statement under section 24(2) of the Charter.

This decision addresses multiple alleged Charter breaches related to the arrest and detention of Rajiv Quinless for impaired driving with excess blood alcohol concentration.

The Court found no breaches regarding the reliance on the Approved Screening Device (ASD) results or the adequacy of the information provided about the reasons for arrest.

There was no breach found in the timing of the right to counsel being read.

However, the Court found serious breaches of the right to counsel under s.10(b) of the Charter, including impermissible steering to duty counsel instead of allowing the accused to contact his brother for legal assistance, and a breach of the right to consult with counsel in private due to the accused’s reasonable belief that the consultation was not private.

The evidence (breath readings and utterances) was excluded under s.24(2) to maintain confidence in the administration of justice, resulting in a dismissal of the charge.

This decision addresses multiple Charter breaches arising from the detention, search, and arrest of Omar Yaqubi in Toronto's Entertainment District.

The court found breaches of sections 7, 8, 9, and 10(b) of the Charter, including arbitrary detention without reasonable suspicion, unlawful search without safety justification, and failure to promptly inform and facilitate the right to counsel.

The court excluded the evidence obtained during the unlawful detention and search pursuant to section 24(2) of the Charter.

Alternatively, a stay of proceedings was directed due to the loss of critical evidence caused by police muting body-worn cameras and failure to preserve key witness information, impairing the accused's right to make full answer and defence.

This decision addresses multiple Charter challenges raised by Bambot Njei-Bentley in relation to his arrest for impaired operation and refusal to provide breath samples under the Criminal Code.

The court carefully analyzed the validity of the breath demand, the reasonableness of the arrest, and the police's compliance with the informational and implementational duties under section 10(b) of the Charter.

The judge found no breaches of sections 8, 9, or 10(b) rights that would warrant exclusion of evidence.

The Crown was found to have proven beyond a reasonable doubt that the accused intentionally and unequivocally refused to comply with a lawful breath demand without a reasonable excuse, resulting in a conviction on the refusal charge.

The impaired operation charge was dismissed on Crown's own admission.

This decision addresses the application of section 10(b) of the Charter regarding the right to counsel in the context of an impaired driving charge.

The court considered whether the accused was properly informed of his right to contact any lawyer of his choice, and whether he was afforded a reasonable opportunity to speak to counsel at the roadside.

The judge found a violation of section 10(b) due to failure to properly inform the accused about the option to speak to counsel privately at the roadside.

However, the evidence from breathalyzer tests was admitted under section 24(2) of the Charter, as the breach was not serious enough to exclude the evidence.

The court also found the accused guilty of impaired driving based on the totality of the evidence, including the circumstances of the accident and observed signs of impairment.

The accused, P.M., was charged with sexual interference, invitation to sexual touching, sexual assault, and making child pornography.

During a voir dire, the court found P.M.'s video-recorded statement to police voluntary beyond a reasonable doubt.

However, the statement was excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms due to a breach of his s. 10(b) right to counsel.

The police failed to provide P.M. with a reasonable opportunity to contact his chosen counsel, instead steering him to duty counsel without offering alternatives or documenting his consent to forgo waiting for his preferred lawyer.

The court found the police conduct serious, reflecting an institutional failure, and that the impact on the accused's Charter-protected interests outweighed society's interest in admitting the evidence.

The accused was charged with failing to comply with judicial interim release conditions (curfew and weapons prohibition) after a traffic stop.

He brought a Charter application alleging violations of ss. 8, 9, 10(a), and 10(b).

The court found that the accused's detention became arbitrary, his s. 10(a) rights were violated by delayed notification of reasons for detention, and his s. 10(b) rights were violated by delayed access to counsel and incomplete information.

The search of his person and wallet was also found to be illegal.

Applying the s. 24(2) Grant analysis, the court excluded the seized weapons due to serious police misconduct and significant impact on the accused's Charter rights, leading to a finding of not guilty on the weapons charge.

The curfew charge was dismissed earlier by the Crown.