ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
SERGE BELLIARD
Before Justice G. Jenner
Heard on September 23, 2025, November 24, 2025, and November 27, 2025
Reasons for Judgment released on January 22, 2026
Mathieu Ansell counsel for the Crown
Michael Haraschuk counsel for the accused
JENNER J.:
I. Introduction and Issues
1Mr. Belliard pleaded not guilty to charges of (i) impaired operation of a conveyance; and (ii) having a blood alcohol concentration (“BAC”) equal to or above 80 mg of alcohol in 100 mL of blood within two hours of operating a conveyance (“80 plus”). At the close of the evidence, the Crown indicated it was not seeking a conviction on the impaired count. I agree the evidence does not prove the essential element of impairment, and Mr. Belliard is acquitted on that count. On the remaining count the parties agree the case turns entirely on Mr. Belliard’s Charter application to exclude evidence.
2The facts are largely uncontested. In brief, on June 28, 2024, Mr. Belliard was stopped by Cst. Anik Dennie at a RIDE programme. She made an Approved Screening Device (“ASD”) demand. Mr. Belliard registered a ‘FAIL’. Cst. Dennie arrested him for “impaired operation,” made an approved instrument demand (“breath demand”), and brought him to the police station. At the station, police left voicemail messages at several phone numbers for Mr. Belliard’s counsel of choice, though they did not specify on whose behalf they were calling. When those calls were not returned, Mr. Belliard eventually spoke with duty counsel before providing breath samples to certified breath technician Cst. Kitchikake. Mr. Belliard expressed dissatisfaction with that call. The lower of Mr. Belliard’s two breath samples was 130 mg of alcohol in 100 mL of blood.
3I have consolidated the issues raised in the Charter application as follows:
(1) Grounds for the arrest and breath demand: were Mr. Belliard’s rights under ss. 8 and 9 of the Charter infringed because, when Cst. Dennie arrested Mr. Belliard and made a breath demand, she lacked reasonable and probable grounds to believe that Mr. Belliard had committed the offence of impaired operation? What impact, if any, does Cst. Kitchikake’s own later reading of a breath demand have?
(2) Counsel of choice: was Mr. Belliard’s s. 10(b) Charter right breached because Cst. Dennie did not provide Mr. Belliard with a meaningful opportunity to contact counsel of choice? What impact is there, if any, from Mr. Belliard ultimately speaking to duty counsel?
(3) Charter remedy: if any of the alleged Charter breaches are made out, ought the evidence to be excluded?
II. Analysis
2.1 Grounds for Arrest and Breath Demand
4Cst. Dennie testified that on June 28, 2024, she was working a RIDE programme. She stopped Mr. Belliard. She had determined she would be making a mandatory alcohol screening demand and had an ASD on her person. Cst. Dennie noticed no indicia of impairment. Mr. Belliard registered a ‘FAIL’. This indicated to Cst. Dennie that Mr. Belliard had a BAC at or above 80 mg of alcohol in 100 mL of blood. This FAIL served as Cst. Dennie’s grounds to arrest Mr. Belliard for the offence of “impaired operation”, which she specified was pursuant to s. 320.14(1)(a) of the Criminal Code. The FAIL also served as her grounds to demand that Mr. Belliard provide samples of his breath pursuant to s. 320.28(1) of the Criminal Code.
5Cst. Kitchikake’s testimony about the grounds communicated to him by Cst. Dennie corroborates her account. He was not advised of any indicia of impairment and understood the breath demand to be made only because of the ‘FAIL’ on the ASD. His demand flowed from what was conveyed to him from Cst. Dennie. I heard no evidence or suggestion he made an independent demand on a different basis from his colleague.
6Mr. Belliard concedes that a ‘FAIL’ result on the ASD could provide objective grounds to believe the offence of ‘80 plus’ had been committed but contends it cannot provide objective grounds to believe the offence of impaired operation had been committed. This, he says, is a breach of s. 9 of the Charter in respect of the arrest, and of s. 8 of the Charter in respect of the breath demand.
7I accept Mr. Belliard’s argument that his arrest was unlawful. Cst. Dennie did not testify as to any basis for believing that a FAIL result indicates impairment. She simply equated being over the legal limit with being impaired. The relationship between BAC and impairment is often the subject of testimony in driving offence cases. It was not in this trial, except from Cst. Kitchikake, who was not the arresting officer. There is no basis in the record for me to conclude the Crown has met its onus in demonstrating that Cst. Dennie’s subjective belief in impairment was objectively reasonable. While Mr. Belliard was arrestable for the offence of ‘80 plus’, objective standards of reasonableness are measured against the police power actually undertaken by the officer, and not other legitimate powers that would have been available: R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51, at paras. 21, 27, and 29. I am compelled to conclude the arrest was unlawful.
8I do not wish to be misunderstood as concluding that a FAIL on an ASD cannot ever, standing alone, reasonably ground a belief that the offence of impaired driving has been committed. There may be cases in which an officer explains, in the context of their training, education, or experience, a reasonable belief that a FAIL result indicates impairment. As observed in R. v. Ross, 2015 ONCJ 115, at para. 44, restrictions about the probative value of BAC to the issue of proof beyond a reasonable doubt of impairment do not necessarily apply to the probability-based inquiry in assessing grounds for arrest or breath demand. I simply had no evidence in this case that the demanding officer was aware of or relied on a connection between BAC and impairment.
9The unlawful arrest would, standing alone, be an arbitrary basis for detention contrary to s. 9 of the Charter. But it did not stand alone. It was made contemporaneously with a breath demand pursuant to s. 320.28(1) of the Criminal Code. That provision—which is often paired with an arrest but does not depend on an arrest being made— permits the issuing officer to require the person subject to the demand to accompany the officer for the purpose of taking samples: s. 320.28(1)(b). In this sense, the demand provision includes a self-contained detention power. So, despite the unlawful arrest, whether Mr. Belliard was arbitrarily detained depends additionally on whether his detention incidental to the breath demand was arbitrary, which in turn depends on whether the breath demand itself was lawful. In this way, both the s. 8 and s. 9 Charter questions turn on the validity of the breath demand.
10The question of the validity of the breath demand is complicated by the existence of two seemingly contradictory lines of authority, both decided under the predecessor breath demand provision, then-s. 254(3) of the Criminal Code. In R. v. Kranz, 2021 ONSC 25, at paras 62-64, the court, sitting as a summary conviction appeal court, held that as between the offences of ‘impaired operation’ and ’80 plus’, the officer making a breath demand need only believe on reasonable and probable grounds that one of the two offences has been committed. If the officer arrests a person for the ‘wrong offence’, that is, the one for which there is not an objectively reasonable basis, there is no breach of the Charter, as long as they possessed objectively reasonable grounds to believe that one of the two offences under then-s. 253 of the Code had been committed. The reasoning in Kranz was recently adopted in R. v. Quinless, 2025 ONCJ 94, at para. 25, albeit in the context of an alleged breach of s. 10(a) of the Charter.
11A different approach is taken in R. v. Para, 2021 ONSC 2007, another summary conviction appeal case from the same year as Kranz. In Para, at paras. 27-28, the court followed the reasoning in R. v. Ross, 2015 ONCJ 115, a decision of Paciocco J., as he then was. In Ross, relying on the foundation in Caslake, the court determined it could not substitute an objectively reasonable basis for a search or arrest in place of the basis that was relied on by the officer: see paras. 15-25.
12Faced with potentially competing authorities, the consistency of Para and Ross with Caslake drives my acceptance of them as more persuasive. Again, the general rule exemplified in Caslake, itself a search case, is that the reasonableness of police actions is to be gauged by what police did or purported to do, not by what they might have done or would have been justified in doing. In my respectful view, the Kranz approach, while recognizing the thematic connection between two offences targeting impaired driving, creates an anomaly within the larger context of assessing police detention and search powers.1
13I would add that, in Kranz that anomaly is reasoned in part from an aspect of the text of former s. 254(3) of the Code. The former s. 254(3) required the officer making the demand to have reasonable grounds to believe that a person has committed “an offence under s. 253 as a result of the consumption of alcohol.” The two distinct offences were grouped together, and the court framed the question as whether the officer has subjective reasonable grounds to believe an offence in that category is committed. The successor provision, s. 320.28, reads differently, and requires the officer to have reasonable grounds to believe the person “has operated a conveyance while the person’s ability to operate it was impaired to any degree by alcohol or has committed an offence under paragraph 320.14(1)(b)” [my emphasis]. The amended language is a small change, but one that erodes, to some degree, the basis for the Kranz approach.
14Ultimately, I find persuasive Paciocco J.’s reasons, at paras. 22-24 of Ross. The offences of impaired driving and ’80 plus’ have distinct elements. The court cannot mix and match the subjective grounds for one offence with the objective basis for another. To do so would render the subjective component superfluous, and would convert the question to one of whether an officer could have acted properly, instead of whether they did act properly.
15Applying Para/Ross, and indeed, Caslake to the present matter, I conclude the Crown has failed to prove that Cst. Dennie’s subjective belief that the offence of impaired driving was committed was objectively reasonable. I conclude the availability of objective grounds to believe the offence of 80 plus had been committed is irrelevant, except as a consideration at the stage of remedy. Consequently, I find the breath demand and incidental detention were unlawful, and in breach of both ss. 8 and 9 of the Charter.
16The breach of s. 8 is not remedied by the fact that Cst. Kitchikake later read a breath demand. It is common in impaired driving and 80 plus investigations for a breath technician, on receiving custody of a detainee, to read the detainee a fresh breath demand. In some cases, flaws which present with the initial demand are corrected or overtaken by the second demand: see, for example, R. v. Guenter, 2016 ONCA 572, at paras. 88-90, leave refused [2016] S.C.C.A. No. 433. This is not such a case. Cst. Kitchikake re-articulated a breath demand when he received custody of Mr. Belliard, but he applied the same basis for the demand as his colleague. He was aware the arrest was for impaired operation and agreed that Mr. Belliard did not show any signs of impairment. Had Cst. Kitchikake articulated that his own breath demand was distinct and grounded in a subjective belief Mr. Belliard had committed the offence of 80 plus, then the Crown may have met its onus to show the second demand was lawful. But the court heard no such evidence.
17Consequently, the Crown has not met its onus in proving that Cst. Kitchikake’s demand was valid. The second demand, to the extent it can be considered an independent demand, is equally in breach of ss. 8 and 9 of the Charter and does not assist the Crown.
2.2 Counsel of Choice
The evidence
18Cst. Dennie was the primary officer involved in facilitating Mr. Belliard’s right to counsel. Her evidence on this issue, buttressed by the video and audio recordings of the booking room and breath testing room, can be summarized as follows:
After registering a ‘FAIL’ on the ASD, Cst. Dennie arrested Mr. Belliard at 2355 hrs on June 28, 2024.
In the first few minutes of June 29, 2024, Cst. Dennie read Mr. Belliard a caution, made a breath demand, and read him his rights to counsel.
Cst. Dennie escorted Mr. Belliard to the police station, arriving at 0024 hrs. After some delay at the sally port waiting for other police business to clear, Mr. Belliard was brought into the booking area at 0039 hrs.
At the station, Mr. Belliard indicated Mr. Michael Haraschuk as his counsel of choice, and Cst. Dennie was then tasked with contacting him.
Cst. Dennie obtained contact information for Mr. Haraschuk using a sheet that was kept at the station for this purpose. She obtained three telephone numbers for him. One was listed as ‘cell’. One was listed as ‘other’. One was listed as ‘work.’
Beginning at 0042 hrs, and continuing through to 0116 hrs, Cst. Dennie called all three numbers. She made a total of nine calls. None was answered. On seven of the occasions, she left a voicemail message. She advised in her voicemails that she had a male in custody seeking to speak to Mr. Haraschuk. On some but not all the voicemails she indicated the charge. On some but not all the voicemails she indicated a return telephone number.
Cst. Dennie did not articulate who she was calling on behalf of in any of the voicemails. She explained that she decided not to be cause none of the outgoing voicemail messages indicated the lines were private and confidential. She was concerned about leaving Mr. Belliard’s name in the circumstances.
At various points between 0042 hrs and 0131 hrs, Cst. Dennie advised Mr. Belliard that she had not been successful in reaching Mr. Haraschuk and asked him if he would like to speak to another lawyer. He maintained that he trusted only Mr. Haraschuk and did not want to speak to a different lawyer. He was cautioned that while the police would wait a reasonable time for Mr. Haraschuk to return a call, eventually the police would insist on proceeding with the breath testing. They would, however, give him the option of calling another lawyer or speaking with duty counsel first.
At 0131 hrs, Cst. Dennie advised Mr. Belliard that 45 minutes had passed since the initial call and that the police would be proceeding with breath testing. She offered him the opportunity to contact duty counsel. She completed a ‘Prosper warning’ using language posted at the station. Mr. Belliard agreed to speak with duty counsel.
Mr. Belliard spoke with duty counsel from 0138 hrs to 0148 hrs.
19The video and audio recordings show that Mr. Belliard was standing next to Cst. Dennie during some but not all the voicemail messages she left. I agree with the defence submission that it is unclear whether he would have heard what she was saying on the phone. Mr. Belliard was never asked whether he heard the content of Cst. Dennie’s voicemails.
20In his affidavit, Mr. Belliard states that he had an existing solicitor-client relationship with Mr. Haraschuk, having retained him on an unrelated legal matter which was ongoing at the time. He further indicates that had Mr. Haraschuk not been available, he would have opted to speak to a different private lawyer. He stresses that if he had left a voicemail for Mr. Haraschuk, he would have stated his name and indicated he wished to receive legal advice about his arrest. Mr. Belliard also gave evidence that when he ultimately acceded to speak with duty counsel, he was under the impression that he could not opt to call another private lawyer besides Mr. Haraschuk.
Did the police breach s. 10(b) by not identifying Mr. Belliard in their voicemails to counsel of choice?
21This case is of a subset of s. 10(b) Charter cases, common in Ontario, in which the police have assumed the responsibility of making or attempting first contact with a detainee’s counsel of choice. Per R. v. Jarrett, 2021 ONCA 758, at para. 43,
Where the police assume the responsibility of making first contact, 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 she would have”: R. v. O’Shea, 2019 ONSC 1514, 372 C.C.C. (3d) 352, at para. 42; R. v. Doobay, 2019 ONSC 7272, 61 M.V.R. (7th) 225, at paras. 29-33. “Anything less would encourage token efforts by the police and imperil the right of those in detention to consult a lawyer of their choosing”: Doobay, at para. 30.
22The defence argues that Cst. Dennie’s failure to identify Mr. Belliard on the voicemails was a clear violation of Jarrett’s four-year-old direction. The Crown argues that s. 10(b) jurisprudence requires a wholistic examination of the police conduct, and that the police’s extensive bona fide efforts in this case were more than sufficient to discharge the police duty.
23This is nuanced issue. On the one hand, failing to identify a detainee when calling on their behalf seems to depart from what a reasonable detainee would expect. It seems to fall short of what a reasonable detainee would themselves include had they retained control of the process. On the other hand, the police placed nine phone calls to three phone numbers, leaving seven messages, and waited 45 minutes for a response. It was the middle of the night. It seems extremely unlikely that the failure to specifically identify the detainee seeking services ultimately had any bearing on whether Mr. Belliard could reach his counsel of choice.
24There is not dispositive guidance on the issue. Courts have commented that when counsel of choice is not immediately reached live, the message left for counsel should include the detainee’s name: see R. v. Trickett, [2004] N.J. No. 472 (N.L.P.C.), at paras. 24 and 32; R. v. Markovski, [1998] O.J. No. 3397 (C.J.), at para. 15. Neither case, however, focuses on whether including a detainee’s name is a sine qua non or mandatory element of the police’s duty. Neither party was able to furnish a case which turned on whether police’s failure to identify the detainee by name in a voicemail to counsel was, in and of itself, a breach of s. 10(b).
25For the reasons that follow, I conclude that (i) by failing to identify Mr. Belliard in the voicemails, the police fell short of the duty of diligence they assumed when they took control of the counsel outreach process, and (ii) concerns as to whether the breach had any impact on the detainee reaching counsel of choice are best addressed under the rubric of s. 24(2) of the Charter.
26I am persuaded that, applying Jarrett, there is a duty on police to identify the detainee on whose behalf they are calling. This, in my view, flows from the reality that the reasonable person detained at a police station, in need of urgent legal advice, and seeking the services of a specific lawyer, would generally, on reaching that lawyer’s voicemail, tell the lawyer who is calling. In fact, even outside the legal context, the identity of the caller is a near universal feature of a voicemail message. I am prepared to accept this as a matter of common sense and experience, but I also note Cst. Dennie’s own evidence that when she leaves voicemail messages on her own behalf in personal matters, she provides her name. Moreover, when Cst. Dennie ultimately contacted the duty counsel service, she provided Mr. Belliard’s name. Information identifying the person seeking services is critical information in part because the intended recipient of the message is a human being with the agency to make their own decision about whether or when to return the call. The caller’s identity has the potential to impact that decision. I find Mr. Belliard would have certainly identified himself had he been given the opportunity to record the voicemails himself. The police, having assumed the obligation to act as diligently as Mr. Belliard would have, failed in their duty.
27My conclusion does not depend on there being a pre-existing solicitor-client relationship, but where such a relationship exists, the need for the detainee to be able to identify themselves to their lawyer of choice is elevated. It may be that many, and perhaps even the vast majority of criminal lawyers will respond to after-hours arrest calls regardless of whether they know in advance who is detained. But legal counsel are not automatons. They too have agency in the formation of a solicitor-client relationship. Whether they choose to or view themselves as duty-bound to respond to a call, and the priority they assign it may depend on the information they receive, including the detainee’s identity. Indeed, in Trickett, at para. 26, the court notes the benefits of permitting the detainee to leave the message with counsel, so that the detainee can convey information, including about urgency.
28I agree with proposition, advanced by the Crown, that the court should be cautious in stipulating universal requirements or minimum standards for s. 10(b) compliance. I conclude, however, that omitting the name of the person you have undertaken to call on behalf of is such a departure from a detainee’s reasonable expectations, that it should only be done having consulted with the detainee and on the detainee’s advice.
29I accept that Cst. Dennie was honestly concerned about leaving Mr. Belliard’s name on the voicemails because she did not know whether the lines were private and confidential. I do not dismiss that concern as frivolous. But faced with that concern, Cst. Dennie lost sight of the reality that she was acting on Mr. Belliard’s behalf. His goal was to retain and instruct Mr. Haraschuk, with whom he had an existing solicitor-client relationship. The privacy concern was Mr. Belliard’s to weigh and waive, not the officer’s. Mr. Belliard was easily accessible to Cst. Dennie. He was only steps away. She could have asked him what information he was comfortable leaving in a voicemail. The failure to do so is emblematic of the more general risk associated with police assuming control of the process identified in Jarett and Dubay: that the steps taken become rote and disconnected from the detainee’s own exercise of their constitutional right.
30I reject the Crown’s argument that even without indicating the detainee’s identity, the police’s efforts can be considered sufficient overall. The police may be commended for their efforts to reach counsel at various numbers, and for their efforts in waiting sufficient time before proceeding to breath testing. To the extent that R. v. Blackett, 2006 25269 (Ont. S.C.) suggests, at para. 25, that where duty counsel is available the scope of the police duty is minimal, I find it is overtaken by Jarrett where police assume control of the process. The standard is not one of perfection but does require the police to pursue the right with the same diligence the detainee would. Identifying the detainee is not onerous. Had Mr. Belliard abandoned his requests for counsel of choice, in favour of speaking with duty counsel, perfunctory efforts might have satisfied s. 10(b): R. v. Littleford, 2001 8559 (ON CA), [2001] O.J. No. 2437 (C.A.). But Mr. Belliard maintained his requests forcefully throughout. That the police did many things right does not, in my view, change the fact that they did this one simple thing wrong: preventing Mr. Belliard from identifying himself in his outreach to counsel. The court should not approve the unknowing anonymization of a detainee in outreach to counsel, even where police have been diligent in other respects.
31What then, of the argument that leaving Mr. Belliard’s name would not have made a real difference in this case? Does it matter that the record is silent as to whether Mr. Haraschuk would have responded to the voicemails absent the police failing in their duty? I agree with the Crown that it is speculative to assume that in this case Mr. Haraschuk or his office were selectively screening their voicemails such that, had the police only said Mr. Belliard’s name, the voicemails would have been returned. It is much more likely that, given the number of calls placed and the time of night, the voicemails were not discovered or heard by the intended recipients in a timely fashion. The Crown’s argument is cogent, but I think it is an argument more appropriately considered under the rubric of the s. 24(2) of the Charter, which examines, among other factors, the impact of a breach on an accused’s Charter-protected interests.
32I arrive at this conclusion mindful that s. 10(b) of the Charter is concerned, among other things, with police conduct which interferes with the right to “a reasonable opportunity to contact counsel of choice”: R. v. Willier, 2010 SCC 37, at para. 43 [Emphasis added.] I do not understand the s. 10(b) jurisprudence to require the accused to additionally prove that, but for a police failure, that opportunity would have been successful in the sense that the detainee ultimately succeeds in receiving legal advice from their preferred counsel.
33Consider a crude example. A detainee names Mr. Defence as his counsel of choice. The police tell the detainee that they will not place a call to Mr. Defence because they dislike that lawyer. The detainee ultimately settles for duty counsel. The Crown later tenders evidence at trial that on the night of the arrest, unknown to the police, Mr. Defence was in a coma and would not have been available to speak with the detainee. Have the police breached s. 10(b)? I think the clear answer is yes. The police would have deliberately frustrated the detainee’s opportunity to consult counsel of choice, even if we know now that the opportunity would not have borne fruit.
34Indeed, the practice of the courts has not been to insist on this but-for causal element in addressing common s. 10(b) issues. For example, where there has been a failure of the police to allow sufficient time for counsel of choice to return a call, or where there has not been a Prosper warning (see R. v. Prosper, 1994 65 (SCC), [1994] 3 S.C.R. 236), courts have not insisted that the defence call evidence about their preferred counsel’s whereabouts and availability that night.
35The present case is factually distinct from these examples, but the principle applied should be consistent. The police’s compliance with their s. 10(b) duties should be assessed based on their actions in the known circumstances, not on external events which may not come to light until trial, if at all. Where the police breach the implementational duties outlined in the jurisprudence, including Jarrett, that is in my view sufficient to make out an infringement. I do not think it sensible to go on to conduct a speculative, but-for causal inquiry within the s. 10(b) framework.
36Considering causation under the rubric of s. 24(2) is a more appropriate fit. The Crown is correct in its instincts that there is something unpersuasive about this ground of Mr. Belliard’s Charter application. But taking a step back, the weakness in Mr. Belliard’s argument is not that police acted appropriately in omitting his name. As I have explained, detainees leaving messages for their lawyers of choice would identify themselves, and police should understand this when they assume control of the process. The real weakness is that, given the evidence in this case, there does not appear to have been of any meaningful impact on Mr. Belliard’s Charter-protected interests. The s. 24(2) framework is more reflective of and responsive to this issue.
What is the impact of Mr. Belliard’s ultimately speaking to duty counsel?
37On accepting custody of Mr. Belliard, Cst. Kitchikake confirmed that Mr. Belliard received legal advice from duty counsel. This was documented in the Alcohol Influence Report he prepared. Asked whether he recalled any dissatisfaction expressed by Mr. Belliard regarding the legal advice, Cst. Kitchikake initially said no. However, upon reviewing the video clip of the interaction, it became clear that Mr. Belliard had voiced some dissatisfaction with the advice received. When asked if he was satisfied, Mr. Belliard said “duty counsel was just ‘yeah, yeah, just do it’, I don’t trust that,” before going on to complain that he did not trust the breathalyzer machine.
38Police have a duty to implement further contact with counsel where the detainee indicates, diligently and reasonably, that the advice they received is inadequate. Unless they have done so, the police may assume the detainee is satisfied and are entitled to continue with their investigation: Willier, at para. 42; see also R. v. Ahmad, 2015 ONCJ 620, at para. 22.
39The defence argues that once Mr. Belliard communicated his dissatisfaction with duty counsel advice, the police came under a duty to provide a further opportunity to consult a lawyer. The defence frames this as a further breach. The Crown argues that Mr. Belliard’s utterance falls short of reasonably expressed dissatisfaction, and so the police were entitled to consider Mr. Belliard’s right to counsel as exercised. The Crown frames this as remedying any earlier breach.
40Ultimately, I reject both positions. In the circumstances of this case, I find Mr. Belliard’s utterances neither triggered a further duty nor relieved against the initial breach.
41I accept that Mr. Belliard told Cst. Kitchikake that he did not trust duty counsel’s advice. But a bald statement of distrust does not, in my view, trigger a new police duty in every case. That would be far too susceptible to abuse. Repeated claims of distrust could be weaponized by detainees to unreasonably delay investigations. There must be some objectively observable basis to believe a further opportunity to consult counsel is necessary: Ahmad, at para. 22.
42Cst. Kitchikake was faced with a detainee who appeared predisposed against any advice that was not sourced in Mr. Haraschuk, and who appeared most focused on questioning the legitimacy of the breath testing equipment. Mr. Belliard had told the police “I trust Haraschuk…I trust that one lawyer…one lawyer that I trust” [Emphasis added.]. He said to police “I don’t want to speak to a lawyer other than Haraschuk.” I find Mr. Belliard would have professed a distrust of anyone he spoke to that was not his articulated counsel of choice. An inflexible position of trusting one lawyer, who has not been reached after a reasonable period, to the exclusion of all others, is inconsistent with the detainee’s duty of diligence identified in Willier, at para. 33, and is not an objectively reasonable basis to impose a further duty on police. Indeed, given Mr. Belliard’s consistent comments, what reason would police have to expect a further opportunity to consult counsel would assist? I do not find, in these circumstances, that Mr. Belliard’s utterance triggered an additional duty.
43Having said that, I do not read Willier as saying that, where there is no additional duty triggered, an earlier violation is undone. Were that the case, the counsel of choice aspect of s. 10(b) would be significantly eroded. Detainees deprived of the opportunity to consult counsel of choice would be held to have waived their rights by reluctantly accepting the remaining duty counsel option available to them. Indeed, Willier takes care, at para. 43, to clarify that its observations are made in the context where the detainee was neither misinformed about his options nor coerced. I read this as clarification that where there is an implementational flaw which limits the detainee’s ability to exercise their right, speaking to duty counsel is not truly voluntary, and does not cure a previous s. 10(b) violation: see also R. v. Jhite, 2021 ONSC 3036, at paras. 42-43.
Was Mr. Belliard’s s. 10(b) right further breached by his being steered towards duty counsel?
44I reject the defence argument that police led Mr. Belliard to falsely believe that, after waiting a sufficient time for Mr. Haraschuk to call back, his only option was to speak to duty counsel. I accept that during the final interaction before breath testing was to occur, the only counsel offered was duty counsel. But this was only after Mr. Belliard had been told during the initial caution that he could call any lawyer of his choice; after he was told, at 103 hrs, that he could call “another lawyer or duty counsel”; and after he was told, at 105 hrs, that after the police had waited 45 minutes to see if Mr. Haraschuk called back, the police were going to give him the option to call “another lawyer”. This is not a case where a binary option was repeatedly presented which had the effect of displacing a detainee’s understanding that they could contact any lawyer.
45I reject Mr. Belliard’s affidavit evidence that he was under the false impression that, if Mr. Haraschuk was not available, his only remaining option was duty counsel. I reject his evidence that he would have opted to call a second private lawyer. When he was cross-examined on this point, he was extremely evasive. He repeatedly attempted to minimize the number of times his options were explained to him, only to rely on unpersuasive semantic arguments to justify his earlier answers when confronted with other evidence. I did not find him credible on this issue.
46The evidence satisfies me that Mr. Belliard was repeatedly advised that his right encompassed the right to call any lawyer of his choosing. I do not find a breach simply because the police, one later occasion, did not reiterate that option. At most, the police’s failure to mention a third option during the final interaction would give Mr. Belliard reason to seek clarification. He did not. Mr. Belliard has not met his onus in demonstrating he was steered away from an otherwise available option: private counsel who was not Mr. Haraschuk. This specific s. 10(b) breach is not proven.
2.3 Charter Remedy
47Having found the police breached Mr. Belliard’s ss. 8, 9, and 10(b) Charter rights, the court must consider whether the evidence should be excluded pursuant to s. 24(2) of the Charter. I must apply the framework set out in R. v. Grant, 2009 SCC 32, at para. 71:
…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….
48In evaluating the seriousness of the Charter-infringing state conduct, the main concern is preservation of public confidence in the rule of law, and courts must consider the potential need to distance themselves from the state’s conduct. That need will be greater in cases of a pattern of breaches, or willful or reckless disregard of rights rather than inadvertent or minor violations: Grant, at para. 72. While good faith on the part of police may reduce the need for disassociation, ignorance of Charter standards must not be rewarded. Negligence is not good faith: Grant, at para. 73.
49With respect to the infringements of ss. 8 and 9, I cannot conclude the breaches were serious. Kranz and Para demonstrate the law’s unsettled state, and there is no dispute that Cst. Dennie would have been justified in taking the steps she took had she developed a subjective belief Mr. Belliard’s BAC was ‘80 plus.’ With respect to the s. 10(b) breach, I have some concern that the police failure is emblematic of the risk that when police assume control of the process the accused’s own interests and agency become secondary. But I am mindful (i) that there does not appear to have been a clear pronunciation by the courts on the specific issue raised in this case, and (ii) that Cst. Dennie made extensive efforts to reach counsel of choice at various telephone numbers and complied with her obligation to allow sufficient time for counsel to return a call. These factors mitigate the need for the court to disassociate itself from the infringing conduct. The first Grant factor favours admission of the evidence, notwithstanding the multiple breaches.
50The second branch of the Grant framework focuses on the impact of breaches on the Charter-protected interests of the accused. Was the impact fleeting and technical, or profoundly intrusive? The court must concern itself with whether admission of the evidence might breed cynicism about illusory Charter rights: Grant, at para. 76. Respecting ss. 8 and 9, the breaches impacted Mr. Belliard’s liberty and privacy interests. It is not disputed, however, that Mr. Belliard was arrestable for the offence of ‘80 plus’. Moreover, this is not a case where the accused was in the dark as to the reasons for their detention and arrest. Mr. Belliard understood that as part of an investigation related to impaired driving, he was being detained and required to provide breath samples. Objective grounds existed for those breath samples to be compelled. And breath testing, as opposed to other forms of search, is minimally intrusive.
51Respecting the s. 10(b) breach, the Court of Appeal for Ontario has recognized the important psychological value access to counsel has for a detainee, who otherwise may have a sense of helplessness about their circumstances: R. v. Rover, 2018 ONCA 745, at para. 45. In this case, however, I am not satisfied there was any real impact on Mr. Belliard’s Charter-protected interests. It is extremely unlikely that the voicemail messages would have been actioned had only Mr. Belliard’s name been provided. Notwithstanding my comments concerning counsel’s agency in responding to arrest calls, I am not prepared to speculate that counsel were, in this case, screening the police voicemails and ignoring them because they concerned an anonymous detainee. Given the plurality of the messages left, and the time of day, it is much more likely that neither Mr. Haraschuk nor his office became aware of the voicemails during the period of detention. Moreover, this likelihood would not be lost on Mr. Belliard. When advised of his “reasonable opportunity”, he responded “yeah, reasonable opportunity, well, it’s 1AM.” He seems to have understood the challenges in reaching counsel at that time of day. I do not find he suffered the psychological effects of helplessness that sometimes accompany a breach of s. 10(b). In my view, exclusion of the evidence in these circumstances would breed cynicism in the public that Mr. Belliard is receiving a disproportionate windfall when the breach had no discernible effect in this case. This second factor weighs in favour of admission of the evidence.2
52In coming to this conclusion, I recognize a challenge posed to accused persons who wish to marshal evidence of impact on Charter-protected interests. Where this type of implementational s. 10(b) breach is pursued, they may feel strategically compelled to have their lawyer of choice offer direct evidence about their receipt of voicemails or other messages. To the extent that becoming a fact-witness might render that lawyer unavailable to continue as trial counsel, that itself could represent a further impact, flowing from the breach, on an accused’s Charter-protected interests. Ultimately, however, the court must base its consideration of the Grant factors on the evidentiary record. Where the evidence suggests the likelihood of impact is very low, as it does in this case, an accused may face a practical or tactical burden to call evidence suggesting otherwise.
53The third line of inquiry recognizes society’s expectation that criminal allegations be judged on their merits and asks whether the truth-seeking function of the criminal trial process is better served by the evidence’s admission or exclusion: Grant, at para. 79. Here, the third factor weighs in favour of admission of the evidence.
54Balancing these considerations, I conclude that admission of the evidence would not bring the administration of justice into disrepute. The evidence is admitted.
III. Conclusion
55Mr. Belliard does not contest that, with the breath samples admitted into evidence, the Crown has proven its case on the ‘80 plus.’ He is found guilty of that offence.
Released: January 22, 2026
Signed: Justice G. Jenner
Footnotes
- I say potentially competing, because Kranz can arguably be read as applying to a very narrow set of circumstances in which the arresting/demanding officer actually possesses subjective and objective grounds to arrest for a certain offence, but misarticulates the offence to the accused when they are performing the arrest. If Kranz can be distinguished from Ross and Para in this way, it would nonetheless not apply to the facts of this case.
- I appreciate that this argument could equally be applied to the hypothetical detainee who is told by police he cannot call Mr. Defence. That s. 24(2) analysis might look very different, particularly under the first factor, given the egregious and deliberate nature of the hypothetical police conduct.