R. v. Traicheff, 2010 ONCA 851

SCJOct 11, 2023

The court dismissed the appeal, finding no breach of the right to counsel when police left one voicemail for counsel of choice before the accused consulted duty counsel.

The appellant, Can Imer, appealed his conviction for "80 and over" (driving with a blood alcohol concentration exceeding 80 mg per 100 mL of blood).

The appeal raised three grounds related to alleged breaches of his s. 10(b) Charter right to counsel: failure to immediately ask if he wished to contact counsel, insufficient efforts by police to contact his counsel of choice, and being "funneled" to duty counsel.

The court found no error in the trial judge's conclusion that the s. 10(b) rights were not breached, distinguishing the facts from cases where breaches were found due to police steering or insufficient efforts.

In the alternative, the court held that even if a breach occurred, the evidence (breath samples) would not be excluded under s. 24(2) of the Charter, given the moderate seriousness of any misconduct, low impact on the accused's rights, and society's vital interest in combatting drinking and driving.

The appeal was dismissed, and the conviction upheld.

R. v. Imer, 2023 ONSC 5700

considered

SCJOct 5, 2023

The court dismissed an application to stay proceedings or exclude evidence despite finding a s. 10(b) Charter breach.

The accused, Kenneth Hill, brought an application to stay proceedings or exclude evidence, alleging multiple Charter breaches by police during his arrest and detention for random assaults.

The court found a violation of the accused's s. 10(b) right to counsel, specifically regarding the police's premature interruption of his call to duty counsel and failure to ensure he received legal advice, particularly given his apparent mental health issues.

However, the court found no violations of s. 8 (unreasonable search, including strip search and state of undress) or s. 10(a) (right to be informed of reasons for arrest).

Applying the Grant factors, the court determined that the s. 10(b) breach was at the low end of the spectrum in terms of impact on the accused's Charter interests, and that admitting the evidence (identification photos/videos taken prior to the breach) would not bring the administration of justice into disrepute.

The application for a stay of proceedings or exclusion of evidence was dismissed.

R. v. Hill, 2023 ONSC 5526

distinguished

SCJJun 15, 2023

Statements of two murder co-accused admitted; third co-accused's statement excluded due to arbitrary detention.

The Crown sought to admit statements made by three defendants charged in relation to a first degree murder.

The defendants argued the statements were involuntary and obtained in breach of their Charter rights.

The court found all three statements were voluntary.

Mr. Kerr's statement was admitted despite a minor s. 10(b) breach.

Mr. Samuel's statement was admitted as no Charter breaches were established.

Ms. Owen's statement was excluded under s. 24(2) because she was arbitrarily detained and denied her right to counsel during the execution of a search warrant, and the court rejected the Crown's argument that the 'actus reus exception' precluded exclusion.

R. v. Kerr et al, 2023 ONSC 3638

followed

SCJMar 2, 2023

The court allowed the Crown's appeal, finding no s. 10(b) breach when the detainee voluntarily spoke to duty counsel after police reasonably attempted to contact his chosen lawyers.

The Crown appealed the acquittal of the respondent, Syed Rizvi, on a charge of excess blood alcohol, arguing the trial judge erred in finding a s. 10(b) Charter breach (right to counsel) and in excluding breath samples.

The Crown also sought a "bright line rule" for police wait times for counsel of choice in impaired driving cases.

The Superior Court of Justice declined to set a rigid timeline, emphasizing that the "reasonable opportunity" for counsel is fact and context-specific.

The court found that the trial judge erred in concluding a s. 10(b) breach, as the respondent chose to speak with duty counsel after police made reasonable efforts to contact his chosen lawyers, and this choice did not constitute a waiver requiring a specific warning.

The appeal was allowed, the acquittal set aside, a conviction entered, and the matter remitted for sentencing.

R. v. Rizvi, 2023 ONSC 1443

applied

OCJDec 5, 2022

The accused was convicted of impaired driving and taking a vehicle without consent, but drug and breath evidence was excluded due to multiple Charter violations.

The defendant, Gerard Gopaul, faced charges of impaired operation, 80 plus operation, taking a motor vehicle without owner's consent, and possession of cocaine.

The court addressed several Charter applications, finding violations of sections 8 (unlawful strip search, lost video evidence) and 10(a) and (b) (failure to advise of drug jeopardy, insufficient steps for counsel of choice).

Applying the R. v. Grant test, the court excluded the cocaine and breath test evidence due to the seriousness and cumulative impact of the Charter breaches.

Consequently, the defendant was found guilty of taking a motor vehicle without consent and impaired operation, but the charges related to cocaine and 80 plus operation were effectively dismissed due to the exclusion of evidence.

R. v. Gopaul, 2022 ONCJ 561

applied

SCJSep 29, 2022

Summary conviction appeal allowed and acquittal entered due to s. 10(b) Charter breaches regarding counsel of choice.

The appellant appealed her conviction for operating a conveyance with a blood alcohol concentration over 80mg.

She argued her s. 10(b) Charter right to counsel was violated when police failed to leave a message for her counsel of choice, failed to advise her she could leave a message, and failed to provide a 'Prosper warning' when she declined duty counsel.

The summary conviction appeal judge agreed, finding the police breached her s. 10(b) rights.

Applying the Grant framework, the judge excluded the breath sample evidence under s. 24(2) of the Charter, allowed the appeal, and entered an acquittal.

R. v. Doherty, 2022 ONSC 5546

applied

OCJAug 10, 2022

The court excluded breath test results and dismissed the over-80 charge after finding police improperly steered the detainee to duty counsel.

The defendant, Meryem Iftikhar, was charged with operating a motor vehicle with excess blood alcohol.

The defense raised a Charter application alleging a breach of her section 10(b) right to counsel and a "regurgitation defense" regarding breath samples.

The court dismissed the regurgitation defense, finding no evidence of mouth alcohol.

However, the court found that Constable Alszegi violated Ms. Iftikhar's right to counsel of choice by waiting only six minutes before offering duty counsel and by steering her towards duty counsel based on his personal practice, rather than providing other means to contact her chosen lawyer or another lawyer.

Despite Ms. Iftikhar having spoken to duty counsel, the breach was deemed serious due to institutional issues.

Applying section 24(2) of the Charter, the court excluded the breath test results, leading to the dismissal of the charge.

R. v. Iftikhar, 2022 ONCJ 361

referred to

SCJJul 11, 2022

Summary conviction appeal allowed and new trial ordered due to insufficient reasons and s. 10(b) Charter breach.

The appellant appealed his convictions for impaired care and control and 'over 80'.

He argued the trial judge's reasons for the impaired conviction were legally insufficient and that his s. 10(b) Charter right to counsel of choice was breached.

The Superior Court of Justice found the trial judge's reasons were insufficient because they failed to address exculpatory evidence and an alternative innocent inference.

The Court also found a s. 10(b) breach because police failed to inform the appellant he could wait a reasonable time for his counsel of choice, failed to facilitate contact, and failed to hold off on investigative steps.

The breath evidence was excluded under s. 24(2).

The appeal was allowed and a new trial ordered.

R. v. Edwards, 2022 ONSC 3684

considered

OCJAug 24, 2021

The court admitted firearms evidence despite section 10(b) Charter breaches and convicted the accused of constructive possession.

The accused, Rene Hamouth, faced charges of possessing firearms without a license.

Police executed a search warrant at his residence, finding multiple firearms and ammunition.

The defence argued for the exclusion of evidence under Charter s. 24(2) due to alleged s. 10(b) infringements, including delayed access to counsel and breaches of the "hold-off" duty.

The court found multiple s. 10(b) breaches by the police, citing lack of diligence in facilitating counsel access and improper questioning.

However, applying the Grant test, the court determined that the seriousness of the violations and their impact on the accused's Charter rights did not outweigh society's interest in a trial on the merits, especially given the lawful seizure of reliable evidence prior to the breaches.

Consequently, the firearms and ammunition were admitted.

The court then found the accused guilty on all counts, concluding that the prosecution proved constructive possession beyond a reasonable doubt.

R. v. Hamouth, 2021 ONCJ 444

followed

SCJMay 4, 2021

Appeal of Over 80 conviction dismissed; trial judge's problematic comments did not create reasonable apprehension of bias.

The appellant appealed his conviction for driving with a blood alcohol concentration over 80.

He argued that the trial judge created a reasonable apprehension of bias by using inflammatory language in a supplementary ruling on a recusal motion, after defence counsel observed the judge with a draft judgment during submissions.

The appellant also alleged errors in the trial judge's Charter analysis under ss. 8, 9, 10(b), and 24(2) regarding the roadside screening device and the right to counsel of choice.

The Superior Court of Justice dismissed the appeal, finding that while the trial judge's comments about counsel were problematic, they did not meet the high threshold for a reasonable apprehension of bias.

The court also upheld the trial judge's Charter findings, concluding there was no misapprehension of evidence and the police waited a reasonable time for counsel of choice.

R. v. Bukin, 2021 ONSC 3347

cited

SCJApr 23, 2021

Appeal allowed and impaired driving conviction set aside due to breach of right to counsel of choice.

The appellant appealed his conviction for operating a conveyance with a blood alcohol concentration over the legal limit.

He argued that the police violated his right to counsel of choice under s. 10(b) of the Charter by failing to wait a reasonable amount of time for his preferred lawyer to call back and by improperly influencing him to speak with duty counsel instead.

The Summary Conviction Appeal Court agreed, finding that the police failed to take reasonable steps to contact his counsel of choice and interfered with his right by suggesting he speak with duty counsel.

The court excluded the breath test results under s. 24(2) of the Charter, noting a systemic problem with police failing to respect the right to counsel of choice, and dismissed the charge.

R. v. Jhite, 2021 ONSC 3036

cited

SCJMar 2, 2020

Charter Appeal dismissed

The appellant, Andrew Singh, appealed his conviction for impaired driving.

The trial judge had found no breach of his s. 10(b) Charter right to counsel of choice, or alternatively, that breathalyzer readings would be admissible under s. 24(2).

The appeal court found that police *did* violate Singh's s. 10(b) rights by failing to make adequate efforts to connect him with his counsel of choice and defaulting to duty counsel without asking.

However, applying the R. v. Grant framework for s. 24(2) exclusion, the court found the Charter breach to be moderately serious, the impact on Singh's protected interests minor (as he received legal advice and did not complain), and society's interest in adjudication on the merits high.

Consequently, the breathalyzer results were admitted, and the appeal was dismissed.

R. v. Singh, 2020 ONSC 1342

cited

SCJJan 23, 2020

The court dismissed the appeal, finding police fulfilled their section 10(b) Charter obligations by making reasonable efforts to contact the detainee's counsel of choice.

The appellant, Suharshani Wijesuriya, appealed her conviction for refusing to provide a breath sample, alleging the trial judge erred in dismissing her s. 10(b) Charter application and in failing to address evidence regarding breathalyzer operation.

The appeal court dismissed the appeal, affirming the trial judge's finding that police provided a reasonable opportunity to consult counsel, rejecting arguments for an enhanced police obligation beyond 'reasonable steps.' The court also found the trial judge's reasons regarding the breathalyzer were adequate and that no Charter breach occurred, thus rendering the s. 24(2) analysis unnecessary but confirming evidence admissibility.

R. v Wijesuriya, 2020 ONSC 253

distinguished

SCJDec 16, 2019

Conviction for refusing breath sample quashed due to police breach of s. 10(b) right to counsel.

The appellant was convicted of refusing to provide a breath sample.

He appealed, arguing his s. 10(b) Charter rights were breached when police failed to make reasonable efforts to contact his counsel of choice and compelled him to provide a breath sample without clearly advising him of time limits or options to find other private counsel.

The Superior Court of Justice allowed the appeal, finding that the police failed to adequately carry out their implementational duties under s. 10(b) by not checking the lawyer's website for an after-hours number and by not properly informing the appellant of his options.

The conviction was quashed and an acquittal entered.

R. v. Doobay, 2019 ONSC 7272

cited

SCJDec 10, 2019

Crown appeal dismissed; breathalyzer evidence properly excluded due to breach of right to counsel.

The Crown appealed the respondent's acquittal on a charge of operating a motor vehicle with a blood alcohol concentration over 80mg.

The trial judge had excluded the breathalyzer readings under s. 24(2) of the Charter after finding a breach of the respondent's s. 10(b) right to counsel, as police failed to provide him with a lawyer's directory when he could not reach his counsel of choice.

The Superior Court of Justice found no error in the trial judge's application of the law or the Grant framework and dismissed the appeal.

R. v. Fisk, 2019 ONSC 7111

applied

SCJMar 7, 2019

The court ordered a new trial for impaired driving but upheld the acquittal for refusing a breath sample due to a s. 10(b) Charter breach.

Siobhan O’Shea, suffering from mental illness, was arrested for impaired driving and refusing a breath sample.

The trial judge acquitted her, finding Charter breaches (s. 10(b)) for police failing to facilitate counsel contact.

The Crown appealed.

The Superior Court found the police erred in not advising O'Shea of her right to contact another lawyer after her chosen counsel was unreachable, especially given her vulnerable mental state.

This constituted a s. 10(b) breach.

The court excluded the evidence of refusal under s. 24(2) but found roadside observations were not obtained in a manner infringing the Charter.

The appeal for impaired driving was allowed, and a new trial ordered.

The appeal for refusing a breath sample was dismissed.

R. v. O’Shea, 2019 ONSC 1514

explained

OCJJan 25, 2019

Breath evidence excluded and accused acquitted due to multiple breaches of right to counsel.

The accused was charged with impaired operation and operating a motor vehicle with a blood alcohol concentration over 80mg.

At trial, the impaired operation count was withdrawn.

The accused brought a Charter application alleging violations of his s. 10(b) right to counsel.

The court found multiple breaches of the accused's right to counsel, including the police officer's failure to properly inform the accused of the police obligation to wait a reasonable time for counsel of choice to call back, failure to wait a reasonable time before contacting duty counsel, failure to facilitate contact with counsel of choice by not searching the internet for alternate numbers, and failure to provide the result of the first breath sample before taking the second.

Applying the Grant framework, the court excluded the breath evidence under s. 24(2) of the Charter and acquitted the accused.

R. v. MacGregor, 2019 ONCJ 80

cited

SCJJan 4, 2017

Physical evidence and statements excluded due to invalid search warrant, arbitrary detention, and unproven voluntariness.

The applicant was charged with possession of a prohibited firearm.

During the execution of a telewarrant at his family's residence, the applicant was ordered out of the house, handcuffed, and detained by police for over 20 minutes without being informed of the reasons for his detention or his right to counsel.

The police subsequently questioned him in a police cruiser and later at the police station.

The applicant brought a pre-trial motion arguing that his rights under ss. 8, 9, 10(a), and 10(b) of the Charter were violated, and that his statements were involuntary.

The court found that the telewarrant was invalid and lacked reasonable grounds, resulting in a s. 8 breach.

The court also found that the applicant was arbitrarily detained in breach of s. 9, and that his ss. 10(a) and 10(b) rights were violated.

Furthermore, the Crown failed to prove the voluntariness of the statements due to an incomplete record of police interactions.

Applying s. 24(2) of the Charter, the court excluded both the physical evidence and the statements.

R. v. Athwal, 2017 ONSC 96

applied

OCAMar 14, 2016

Leave to appeal denied; police failed to facilitate detainee's right to counsel of choice.

The Crown sought leave to appeal a summary conviction appeal decision that affirmed the accused's acquittal.

The Crown argued the case raised important questions about a detainee's obligation of diligence under section 10(b) of the Charter.

The Court of Appeal denied leave, finding that the police officer failed to afford the detainee a reasonable opportunity to contact counsel of his choice or facilitate that contact, and thus the proposed questions were not raised on the facts.

R. v. Vernon, 2016 ONCA 211

applied

SCJAug 6, 2015

Appeal dismissed after police failed to properly facilitate access to counsel of choice.

The Crown appealed an acquittal on a charge of operating a motor vehicle with a blood alcohol concentration exceeding the legal limit after breath sample evidence had been excluded under s. 24(2) of the Charter.

The trial judge had found a breach of the respondent’s right to counsel under s. 10(b) because police failed to give a reasonable opportunity to contact counsel of choice, defaulted quickly to duty counsel, and failed to facilitate contact beyond leaving a single voicemail.

The appellate court held that the informational and implementational components of s. 10(b) were breached where the accused reasonably believed he had no option but to speak with duty counsel rather than wait for his chosen lawyer.

Despite the reliability and minimally intrusive nature of breath evidence, the seriousness of the Charter breach justified exclusion to protect the integrity of the justice system.

The Crown’s appeal from the acquittal was dismissed.

Her Majesty the Queen v. Matthew Vernon, 2015 ONSC 3943

followed

By the Court:

By the Court: