Nila R. Mulpuru

The appellant appealed a summary conviction for operating a motor vehicle with blood alcohol exceeding the legal limit, arguing the trial judge erred by admitting breath test results obtained after a breach of the appellant’s right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms.

The arresting officers failed to clarify the appellant’s ambiguous response “not yet” when asked whether he wished to contact a lawyer and did not advise him of the police obligation to hold off obtaining evidence until he had a reasonable opportunity to contact counsel.

The appellate court held that the trial judge unreasonably characterized the police conduct as merely inadvertent and at the low end of seriousness.

The failures of multiple officers to address the ambiguous response and to implement the right to counsel constituted at least negligent Charter‑infringing conduct.

The conviction was quashed and a new trial ordered.

The accused were charged with numerous counts of fraud over $5,000 arising from an alleged large-scale Ponzi scheme involving losses approaching three million dollars.

They applied for a stay of proceedings under s. 11(b) of the Charter alleging unreasonable delay, as approximately 1788 days (about 60 months) would elapse between charge and trial.

The court applied the pre‑Jordan analytical framework from Smith, Askov, and Morin, assessing the overall delay, waiver, reasons for delay, and prejudice to the accused.

Most of the delay was attributed to inherent case complexity, defence actions including efforts to secure counsel and legal aid funding, and neutral factors such as co‑accused delay, while institutional delay was found to account for 18.5 months.

Balancing the limited institutional delay against the serious nature of the alleged fraud and the societal interest in a trial on the merits, the court held the delay was not unreasonable and declined to grant the extraordinary remedy of a stay.