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Ontario Court of Justice — Toronto
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**DATE:** March 27, 2026
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**BETWEEN:**
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**HIS MAJESTY THE KING**
— AND —
**WENCHUN XIONG**
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**For the Crown:** B. Haynes
**For the Defendant:** A. McQuaig
**Heard:** June 2, 3; August 26; November 12, 2025
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REASONS FOR JUDGMENT
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**RUSSELL SILVERSTEIN, J.:**
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## A. INTRODUCTION
​[1]​ Ms. Xiong is charged with having a blood alcohol concentration equal to or exceeding 80 mg in 100 mL of blood within two hours of ceasing to operate a conveyance.
​[2]​ The charges arise out of an April 16, 2022, traffic stop culminating in Ms. Xiong's arrest that same evening. Once back at the station, Ms. Xiong provided two samples of her breath, registering 150 mg/100 mL of blood and 130 mg/100 mL of blood respectively.
​[3]​ Ms. McQuaig, on behalf of the defendant, has brought a Charter application alleging that:
(1) The arresting officer (P.C. Barrios) did not inform the defendant of her rights to counsel in a timely fashion thus violating her section 10(b) Charter rights.
(2) Special circumstances existed that obliged the arresting officer, and all other police officers who dealt with the defendant that morning, to take further steps to provide a Mandarin interpretation of the informational component of her rights to counsel, and their failure to do so was a breach of her section 10(b) Charter rights.
​[4]​ Ms. McQuaig further argues that these Charter violations support the exclusion of the breath sample readings pursuant to s. 24(2) of the Charter.
​[5]​ Mr. Haynes argues that the defendant's Charter rights were not violated, but if they were, the violations do not support the exclusion of the breath sample readings.
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## B. THE EVIDENCE
### (a) Introduction
​[6]​ The trial proceeded in a blended fashion. The evidence relevant to the Charter issues consists of police video and audio of their interaction with the defendant at the police station, the testimony of P.C. Barrios (the arresting officer), the testimony of P.C. Randhawa (the certified breath technician), Ms. Xiong, and her husband, Naikang Hsu.
### (b) The salient details of the defendant's interaction with police
​[7]​ The interactions between the defendant and the police in the booking hall at the station are clearly captured on video only; there is no audio. Her interactions with the breath technician are captured on video and audio, which greatly assists with my fact-finding function. Unfortunately, the arresting officer was not equipped with a body-worn camera and as a result I have only the testimony of P.C. Barrios and that of the defendant as concerns the encounter between the defendant and P.C. Barrios at the roadside.
#### (i) The defendant's testimony
​[8]​ The defendant was 31 years old when she testified. She is married with no children and works full time as a waitress in the restaurant industry. She came to Canada when she was 17 years old and is now a permanent resident. Her first language is Mandarin. She testified through a Mandarin interpreter.
​[9]​ When she first arrived in Canada her English was "so so", and she would often rely on a translating device that she purchased in China before coming to Canada.
​[10]​ After arriving she attended high school in Canada in English. After completing high school, she enrolled at the University of Toronto, Mississauga Campus and took courses in English, one of which she failed in her first and second year due to the language challenge it posed. She thus switched programs to one that required less English proficiency.
​[11]​ Her English is now "much better" than it was when she first arrived in Canada, although it is still not good. She can now manage only some day-to-day English.
​[12]​ She communicates with her husband, her workmates and friends in Mandarin.
​[13]​ She has some memory of being stopped and questioned by police. Most of the time she was "really scared" and "did not really understand what they were saying". She does recall crying and being asked by P.C. Barrios whether she had a lawyer that she knew and answering "no". She has no recollection of being asked if she knew someone who could help her get in contact with a lawyer. If she had been asked that, and understood it, she'd have mentioned a paralegal she was familiar with. After her release she called that paralegal who referred her to a lawyer.
​[14]​ On the way to the police station, she told P.C. Barrios that she needed someone to assist her because her English is limited. The defendant spoke to duty counsel with a Mandarin interpreter before providing breath samples at the station. When asked by the breath technician if she wanted a translator she said no but did not understand the question.
​[15]​ The defendant did not understand at any time that morning that she had the right to contact a lawyer of her choosing.
​[16]​ The defendant had translation apps on her phone when stopped by police. She did not use them because she did not know she was allowed to use her phone.
#### (ii) The testimony of Naikang Hsu
​[17]​ Mr. Hsu is the defendant's husband of four years.
​[18]​ He describes the defendant's ability to communicate in English as "basic". She is not comfortable speaking English, and it is hard for her to tell a story or to understand a story in English. He translates for her often.
#### (iii) P.C. Barrios's testimony
​[19]​ P.C. Barrios is an O.P.P. constable. He pulled the defendant driver over as she exiting Hwy 401 on April 16, 2022. They had a discussion in English which he believed she understood. He could tell English was not her first language from her name and her accent, nothing else. She never hesitated to answer him.
​[20]​ P.C. Barrios developed a suspicion that the defendant had alcohol in her body and made a screening demand, which, when asked, she said she understood.
​[21]​ It appeared to the officer that the defendant understood all his instructions to her. He demonstrated how to blow into the ASD, which she did.
​[22]​ The defendant blew a fail, and he arrested her for impaired and excess blood alcohol at 2:55 am. She appeared to understand. He handcuffed her, put her in the back of his car and took away her cell phone. Even though he had no concerns about his safety or that of the public, it was not until eight minutes after the arrest that he read her the rights to counsel at 3:03 am. He asked her if she understood and she said she did. He then asked her if she wanted to call a lawyer and she said she did not have a lawyer. He then asked if she knew anybody who could help her find a lawyer and she said she did not. He then offered her a call to duty counsel, and she accepted that offer.
​[23]​ He then read the defendant a caution and she again said she understood. She also said she understood his subsequent breath demand.
​[24]​ Once back at the station P.C. Barrios made a call to duty counsel and spoke to a lawyer named Paul Daniels who suggested that a Mandarin translator be used for his discussion with the defendant. The officer asked the defendant if she wanted a Mandarin translator for her duty counsel consultation and she said yes. The officer conveyed this to Mr. Daniels who secured a Mandarin translator for his 3:29 am consultation with the defendant. After the consultation, the defendant told the officer that she was satisfied with it. The officer then turned the defendant over to P.C. Randhawa, the breath technician. Even though the defendant asked for the assistance of an interpreter for her duty counsel consultation, it did not occur to P.C. Barrios that the defendant might need an interpreter for the balance of her dealings with police.
​[25]​ Never through his dealings with the defendant did he find it necessary to repeat any of his English instructions.
​[26]​ P.C. Barrios knew that he could have had access to a Mandarin interpreter for his dealings with the defendant at the roadside, but he did not think it was necessary.
​[27]​ On cross-examination P.C. Barrios was shown several portions of the video/audio from the defendant's encounter with P.C. Randhawa. He did not agree with counsel's suggestion that on several occasions the defendant was having difficulty understanding P.C. Randhawa. He opined that she seemed to understand. He later in the cross-examination agreed that the defendant did not appear to understand P.C. Randhawa's demands.
​[28]​ He agreed that it was "strange" that the defendant had no trouble understanding his breath demand at the roadside but could not understand the very same demand from P.C. Randhawa.
#### (iv) P.C. Randhawa's testimony
​[29]​ P.C. Randhawa was the qualified breath technician who dealt with the defendant on April 16, 2022.
​[30]​ He received her from P.C. Barrios at 3:42 am. At 3:46 am he offered her a translator, and she declined. On cross-examination he conceded that her refusal of assistance was confusing since she had used a translator in her earlier consultation with duty counsel.
​[31]​ He made a formal breath demand at 3:49 am. At no point in his dealings with her did he have the impression that she did not understand him notwithstanding the many hesitations on her part, her sometimes non-sensical answers, and the fact that he had to repeat his breath demand four times.
​[32]​ He made no note of her hesitation or his having to repeat his instructions many times because the entire interaction was "on video" and he had never known it not to work.
​[33]​ On cross-examination, after being shown the video of his interaction with the defendant he continued to maintain that he had no concerns about her ability to understand him that morning.
#### (v) The video evidence
​[34]​ The only video/audio recording taken by the O.P.P. is from the breath room encounter.
​[35]​ Defence counsel prepared a relatively accurate summary of what is depicted in the video/audio, and I reproduce it here with certain modifications:
- At approximately 3:40 a.m., the Applicant was escorted to the breath room by the arresting officer. Shortly after, P.C. Randhawa (the breath technician, "breath tech") began asking questions of the arresting officer. The breath tech asked the arresting officer the following questions in relation to what had transpired with respect to the Applicant's right to counsel. The arresting officer stated the following: (The arresting officer is labelled "A/O"):
> A/O: So, when I read the right to counsel, I asked her if she had any lawyers and she said no. I asked her if she had somebody who can provide her with a lawyer. She says she doesn't have anybody. Um I then at the time I ah asked her if she wished to talk to a duty counsel. She said yes. So, I told her that when we came to the station we'd arrange that for her. So, I made ah the call to duty counsel. Ah duty counsel actually arranged a Mandarin translator for her and then she talked to the duty counsel and the translator inside the private room, and she was satisfied with the conversation she had.
- The breath tech then asked the Applicant if she agreed with everything that the arresting officer had said (outlined immediately above). The Applicant was initially completely silent. She tilted her head back and forth before eventually saying: "mm yeah". The breath tech then asked the Applicant if she still required a Mandarin translator. The Applicant responded by stating: "you mean talk to my mmm…" In response, the breath tech said: "Like while we do this do you need a translator?" to which the Applicant responded: "Mmm, no." The breath tech told the Applicant to let him know at any point if she needed a translator.
- At approximately 3:47 a.m., the breath tech read the Applicant a breath demand. When he asked the Applicant if she understood, she was initially silent. She then said something slowly that sounds like: "my understand". The breath tech then re-read the breath demand and again asked if she understood. She then stated something to the effect of: "you mean I… I don't understand." The following is the exchange that next transpired between the breath tech and the Applicant. (The breath tech is "B/T"):
> B/T: You don't understand, okay. So what I'm telling you, is I'm demanding you provide samples of your breath okay, that in my opinion, me being the qualified technician will allow me to do a proper analysis of your breath and that you accompany me now for this purpose, do you understand? So basically, let me explain to you in common terms, I am asking you to blow into this instrument here so we can analyze your breath.
>
> Applicant: Nodded in the affirmative and then stated: "yeah"
>
> B/T: Do you understand that, is that a yes?
>
> Applicant: After being momentarily silent, she stated softly: "yes"
- At approximately 3:48 a.m., the breath tech read the Applicant a caution. When asked if she understood, she paused then shook her head to indicate no. The breath tech re-read the caution and again asked if she understood. She again shook her head to indicate no. The breath tech then stated: "so basically what I'm saying here is that you could be charged with impaired operation. Okay drinking and driving. You don't have to say anything to me unless you want to, but whatever you say to me can be used in evidence." When asked if she understood, the Applicant turned her head slightly and ultimately shook her head to indicate no. The breath tech asked the Applicant: "okay what part of that do you not understand?" the Applicant responded slowly and very softly. As a result, her answer is unclear. The following is a transcription of their next exchange:
> B/T: Okay what do you think I just said to you?
>
> Applicant: Oh, I don't know (muffled) I'm not (muffled) understand.
>
> B/T: So basically, what I'm telling you is that if you don't want to talk to me, you don't have to.
>
> Applicant: Oh okay.
>
> B/T: But if you do talk to me, whatever you tell me here, it can be used as evidence against you later in court later on, so whatever you want to tell me is up to you.
>
> Applicant: Okay.
>
> Breath tech: Okay you understand that?
>
> Applicant: Yes.
- At approximately 3:50 a.m., the breath tech read the Applicant the secondary caution. When asked if she understood, the Applicant appeared confused and said two words softly that are indecipherable. As a result, the breath tech re-read the secondary caution and asked if she understood. The following is a transcription of their next exchange:
> Applicant: That you tell me if I understand.
>
> Breath tech: Okay so I'll explain it to you just in common terms, okay?
>
> Applicant: Okay.
>
> Breath tech: So, what I'm saying to you is if you spoke to anybody else, like a police officer outside there…
>
> Applicant: Yeah.
>
> Breath tech: Whatever you told them, that's between you guys, you and I are starting new again, so whatever you told them out there, you don't have to tell me the same thing.
>
> Applicant: Oh.
>
> Breath tech: Does that make sense?
>
> Applicant: Yeah.
>
> Breath tech: You understand that?
>
> Applicant: Yeah.
- At approximately 3:51 a.m., the breath tech asked the Applicant if there was any reason that she couldn't provide a breath sample. The Applicant appeared confused. The breath tech asked the question again. In response, the Applicant was initially silent. The breath tech then started pointing to the Intoxilyzer and saying: "a breath sample". After having pointed to the machine, the breath tech stated: "is there any reason you're not able to blow into that?" The Applicant eventually stated: "My lawyer told me I can (muffled)." The breath tech then asked the Applicant: "I'm just simply asking you; Do you have any medical issues? Do you have anything wrong with your mouth?" The Applicant then stated: "Ah no". The breath tech then asked: "Do you have anything that's going to stop you from blowing?" The Applicant responded: "No."
​[36]​ The defendant and the breath technician, P.C. Randhawa, also spent an extended period chatting together between the two breath samples. The defendant's ability to talk about everyday affairs is rudimentary but passable.
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## C. THE ALLEGED 10(B) VIOLATIONS
### (a) Introduction
​[37]​ To reiterate, Ms. McQuaig alleges two s. 10(b) Charter violations. She argues that:
- The arresting officer (P.C. Barrios) did not inform the defendant of her rights to counsel in a timely fashion thus violating her section 10(b) Charter rights.
- Special circumstances existed that obliged the arresting officer, and all other police officers who dealt with the defendant that morning, to take further steps to provide a Mandarin interpretation of the informational component of her rights to counsel and their failure to do so was a thus breach of her section 10(b) Charter rights.
### (b) The immediacy issue
​[38]​ It is now well settled law that the police must inform a detainee of her rights to counsel immediately upon arrest, unless to do so poses undue risk to the safety of officers or the public. [R. v. Debot, 1989 CanLII 13 (SCC)](https://www.minicounsel.ca/scc/1989/13), [1989] 2 S.C.R. 1140 at paras 3 and 42; [R. v. Suberu, 2007 ONCA 60](https://www.minicounsel.ca/oca/2007/60) at paras 47-48; [R. v. Pino, 2016 ONCA 389](https://www.minicounsel.ca/oca/2016/389). The right is intended to mitigate the legal jeopardy and psychological disadvantage inevitably flowing from detention by the police: [R. v. Willier, 2010 SCC 37](https://www.minicounsel.ca/scc/2010/37), at paras. 27-28.
​[39]​ P.C. Barrios waited eight minutes after the defendant's arrest before reading her the rights to counsel. The Crown has not succeeded in demonstrating that there were any circumstances that exempted P.C. Barrios from his constitutional obligation to read the defendant her rights to counsel immediately.
​[40]​ This alleged breach has been made out.
### (c) The law of special circumstances
​[41]​ Ms. McQuaig has accurately set out the law in this area in her written submissions and below I am borrowing liberally from her work.
​[42]​ Compliance with a detainee's constitutional right to counsel protected under s. 10(b) of the Charter mandates that the detainee be meaningfully informed of the existence of the right and be given the ability to meaningfully implement it. This requires the recipient to have an ability to understand the information communicated. In circumstances where objective factors exist in an investigation suggesting a detainee's comprehension of the English language is limited, "special circumstances" arise requiring police to take steps to ensure the information conveyed through the right to counsel was truly understood. [R. v. Vanstaceghem, 1987 CanLII 6795 (ON CA)](https://www.canlii.org/en/on/onca/doc/1987/1987canlii6795/1987canlii6795.html), [1987] O.J. No. 509 (C.A.); R. v. Barros-DaSilva 2011 ONSC 4342; R. v. Shmoel, [1998] O.J. No. 2233 (O.C.J.), at paras. 8-12; [R. v. Baca, 2009 ONCJ 194](https://www.canlii.org/en/on/oncj/doc/2009/2009oncj194/2009oncj194.html), [2009] O.J. No. 1926 (O.C.J.); [R. v. Bassi, 2015 ONCJ 340](https://www.minicounsel.ca/ocj/2015/340), [2015] O.J. No. 3293 (O.C.J.), at para. 7.
​[43]​ The determination of whether special circumstances exist is based on an objective assessment of the evidence. As Tulloch J. (as he then was) set out in R. v. Barros-DaSilva, supra, at para. 30, it is a "reversible error of law to conclude there are no special circumstances on [the] basis of the officer's subjective belief about the accused's ability to understand his legal rights."
### (d) Did the police breach the defendant's s. 10 Charter rights by not supplying a Mandarin interpreter?
#### (i) Analysis of the evidence
​[44]​ The video/audio recording of the defendant's interactions with P.C. Randhawa is the most reliable evidence of the defendant's English proficiency. There is no evidence to support a conclusion that the defendant is exaggerating her lack of proficiency on the recording, nor does Mr. Haynes suggest as much. The video clearly demonstrates that the defendant did not understand the breath demands made by the officer, nor did she understand the cautions he read to her.
​[45]​ The video/audio recording leads me to firmly reject the testimony of both officers as concerns their perception of the defendant's proficiency in the English language. I am convinced that the defendant's ability to understand English was no better at the roadside than it was just a few minutes later in the breath room. It is extremely unlikely that matters proceeded as recounted by P.C. Barrios. P.C. Barrios's initial insistence that the breath room video does not suggest that the defendant was struggling with English strongly undermines his credibility. I am convinced that it was in fact clear to him throughout his dealings with the defendant that she was struggling to understand his English language communications with her.
​[46]​ P.C. Randhawa's opinion that the defendant understood him is equally suspect. His insistence that she understood, even after he watched the video of their interaction completely undermines his testimony.
​[47]​ The defendant's testimony as to what occurred and how little she understood is supported by the audio/video and by her husband's testimony. It is also supported by the fact that the standard O.P.P. rights to counsel that were read to her are extremely difficult to understand, even for someone whose first language is English, especially in the stressful situation that is an encounter with police, either at the roadside or at the station.
​[48]​ I accept her evidence, which I find was given candidly and without hesitation.
​[49]​ The fact that at times she said she did understand the officers does not detract from my finding. I am convinced that when she did say she understood she in fact did not.
#### (ii) Findings of fact
​[50]​ It is abundantly clear to me that on the day of her arrest, the defendant's English was rudimentary at best. This must have been apparent to all the officers who dealt with her.
#### (iii) Conclusion
​[51]​ Special circumstances existed that created a constitutional obligation on the police to secure the services of a Mandarin interpreter for the delivery to the defendant of the information concerning her Charter rights. This is so as concerns P.C. Barrios's dealings with her at the roadside and on the way to the station. This is also the case as concerns the booking staff's dealings with her and P.C. Randhawa's dealings with her.
​[52]​ The police breached the defendant's s. 10(b) Charter rights by not supplying a Mandarin interpreter when explaining her rights to her.
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## D. SECTION 24(2)
​[53]​ Section 24(2) of the Charter reads as follows:
> Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
​[54]​ There is no dispute as between the parties that if the alleged breaches occurred, the breath results were obtained in a manner that infringed Ms. Xiong's Charter rights. [R. v. Tim, 2022 SCC 12](https://www.minicounsel.ca/scc/2022/12), [2022] S.C.J. No. 12.
​[55]​ Whether the admission of the evidence would bring the administration of justice into disrepute is governed by the test first articulated in the Supreme Court's decision in [R. v. Grant, 2009 SCC 32](https://www.minicounsel.ca/scc/2009/32) at para. 71:
> [W]hether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.
See too [R. v. Tim, 2022 SCC 12](https://www.minicounsel.ca/scc/2022/12), [2022] S.C.J. No. 12.
### (a) The seriousness of the breaches
​[56]​ I have found two Charter breaches.
​[57]​ A delay in providing the informational component of s. 10(b) is always serious, but in this case the seriousness of that breach is mitigated by several factors:
- The delay was not particularly long.
- No attempts were made to elicit evidence from the defendant during the delay.
- There was no evidence at trial that the Charter-infringing conduct was systemic.
​[58]​ On the other hand, the failure to provide a translator (the language breach) is extremely serious. It is tantamount to not providing rights to counsel at all. This breach strongly favours exclusion of the breath results.
### (b) The impact of the breaches on Ms. Xiong's Charter protected interests
​[59]​ The impact of the lateness breach is subsumed in the language breach. The fundamental problem is that effectively the defendant was never really read her rights to counsel. That renders the lateness of the non-advice of little moment.
​[60]​ As a result of the language breach, the defendant was deprived of critical information pertaining to her Charter rights and was thus deprived of the rights themselves. This second Grant factor strongly favours exclusion.
### (c) Society's interest in the adjudication of the case on its merits
​[61]​ The Supreme Court in Tim, supra at para. [96](https://www.minicounsel.ca/scc/2022/12) said this:
> The third line of inquiry considers factors such as the reliability of the impugned evidence and its importance to the Crown's case. It asks "whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion" ([Grant, at para. 79](https://www.minicounsel.ca/scc/2009/32)). Reliable evidence critical to the Crown's case will generally pull toward inclusion (see [Grant, at paras. 80-81](https://www.minicounsel.ca/scc/2009/32); Harrison, at paras. 33-34).
​[62]​ The Supreme Court in [Harrison, 2009 SCC 34](https://www.minicounsel.ca/scc/2009/34), at paras. [33 and 34](https://www.minicounsel.ca/scc/2009/34), deals with this factor as follows:
> At this stage, the court considers factors such as the reliability of the evidence and its importance to the Crown's case.
>
> The evidence of the drugs obtained as a consequence of the Charter breaches was highly reliable. It was critical evidence, virtually conclusive of guilt on the offence charged. The evidence cannot be said to operate unfairly having regard to the truth-seeking function of the trial. While the charged offence is serious, this factor must not take on disproportionate significance. As noted in Grant, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, the public also has a vital interest in a justice system that is beyond reproach, particularly where the penal stakes for the accused are high. With that caveat in mind, the third line of inquiry under the s. 24(2) analysis favours the admission of the evidence as to do so would promote the public's interest in having the case adjudicated on its merits.
​[63]​ The evidence (the breath samples and readings) is crucial to the Crown's case and is highly reliable.
​[64]​ Society has an interest in seeing trials of this nature dealt with on their merits given the terrible toll impaired driving takes every year.
​[65]​ I find that the third Grant factor favours admission of the evidence.
### (d) Balancing the three Grant factors
​[66]​ The Supreme Court in [Harrison, supra, at para. 36](https://www.minicounsel.ca/scc/2009/34) explains the proper approach to balancing the three Grant factors:
> The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.
​[67]​ The combined breaches of the defendant's Charter rights were extremely serious and strongly favour exclusion of the evidence. The impact of the breaches also strongly favours exclusion. The reliability of the evidence, its importance to the Crown's case, and the public interest in an adjudication of this case on its merits favour admission of the evidence.
​[68]​ As Justice Doherty held in [R. v. McGuffie, 2016 ONCA 365](https://www.minicounsel.ca/oca/2016/365) at para. [63](https://www.minicounsel.ca/oca/2016/365): "If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance *in favour of admissibility*." *See too* [*R. v. Beaver*, *2022 SCC 54*](https://www.minicounsel.ca/scc/2022/54) *at para.* [*134*](https://www.minicounsel.ca/scc/2022/54)*.*
​[69]​ It should be noted that as pointed out in R. v. John, [2018] O.J. No 253 (S.C.J.) at para 41, in overturning a decision that did not exclude breath samples the summary conviction court noted: "[t]here are virtually no cases in which a Section 10(b) language breach does not lead to exclusion of the evidence."
​[70]​ Balancing the Grant factors, I find that the admission of the evidence would indeed bring the administration of justice into disrepute.
​[71]​ The breath samples are excluded.
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## E. CONCLUSION
​[72]​ The charge is dismissed.
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Released on March 27, 2026
**Justice Russell Silverstein**
minicounsel