ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
JESSICA BRUSH
Before Justice Peter R. Maund
Heard on January 8 and May 7, 2026
Reasons for Judgment released on June 25, 2026
Stacey Hamilton and Simran Dosanjh counsel for the Crown
Brian Starkman counsel for the defendant Jessica Brush
1.0: Introduction
1Jessica Brush stands charged with having excess blood alcohol within two hours of driving a motor vehicle. On May 15, 2025, a civilian was nearly struck by a vehicle while driving in Acton. He followed the vehicle to the parking lot of a school and reported the incident to the police. Police arrived, observed Ms. Brush driving the vehicle, and conducted a traffic stop. After some interaction, Ms. Brush provided a breath sample into an approved screening device, which she failed. She was arrested and brought back to the police station, where she provided breath samples which showed her blood-alcohol content was over twice the legal limit.
2Ms. Brush concedes the Crown’s case on its merits. In her defence, she seeks to exclude the samples of her breath from evidence due to an alleged violation of her right to counsel as guaranteed by s. 10(b) of the Charter. She argues the police made insufficient efforts to contact her counsel of choice, undermined her right to counsel of choice, steered her to duty counsel, and failed to provide her with resources to find a counsel of her choosing. Because of these breaches, Ms. Brush argues that the breath samples should be excluded from evidence.
3In response, the Crown relies on Ms. Brush’s obligation to act with due diligence in exercising her right to counsel. Ms. Brush recognized the difficult situation she was in and the need for immediate legal advice. The officers presented Ms. Brush with options, and Ms. Brush selected an option. If she was confused by the options presented, it was incumbent on her to raise those issues with the police. She spoke to duty counsel and told the breath technician that she was satisfied with the advice she received. In those circumstances, the police were not obliged to do anything further.
4For the following reasons, I agree with Ms. Brush that the police violated her right to counsel of choice. They should have taken additional steps to facilitate contacting her chosen counsel and undermined that choice because counsel was not a criminal lawyer. I do not agree that they steered her towards duty counsel or should have provided her with additional resources to find the name of a lawyer herself.
5Notwithstanding the violations, I am not satisfied the breath readings should be excluded from evidence. The impact of the breach is attenuated by Ms. Brush’s recognition of the difficulties in contacting her counsel of choice, and her decision to speak to duty counsel. She was satisfied with this advice. The breath samples are reliable and exist independent of the violations. There is a strong public interest in adjudicating this case on the merits. Admitting the evidence would not bring the administration of justice into disrepute.
6I decline to exclude the breath samples from evidence. I find Ms. Brush guilty.
2.0: Evidence
2.1: Evidence of the Offence and Investigation
7Given that Ms. Brush does not dispute the charges, I provide only a summary of the evidence of the offence.
8On May 15, 2025, at 4:40 p.m., Michael Waite was driving his daughter to her part-time job at the Acton pool. As he drove southbound on Acton Boulevard, he observed a grey Hyundai vehicle turn southbound from Norman Avenue without stopping for a stop sign. The Hyundai had heavy front-end damage, a cracked windshield, and a flat rear tire. Mr. Waite had to slam on his brakes to avoid a collision. A northbound vehicle was nearly hit by the swerving Hyundai.
9Mr. Waite called 911. He followed the Hyundai until it turned into the parking lot of Mackenzie Bennet Smith School. He observed Ms. Brush exit the vehicle with an infant. She stumbled and walked into a daycare connected to that school. He later saw Ms. Brush return to her vehicle with a preschool-aged child and the infant. She side-stepped and stumbled while doing so. Ms. Brush began to drive out of the parking lot when she was intercepted by an officer, P.C. Thomas Lynch.
10At 5:05 p.m., P.C. Lynch located Ms. Brush driving her vehicle. Two young children were in the back seat. Other parents were in the area, presumably arriving to pick up their children from the daycare. Upon conducting a traffic stop and approaching the vehicle, P.C. Lynch saw a large dog jump out of the vehicle and run away. Ms. Brush seemed unaware of this until P.C. Lynch pointed it out to her. Ms. Brush ran off to get the dog. By the time she returned to the car with the dog, P.C. Kathleen Schwantz had arrived.
11Both officers interacted with Ms. Brush at the roadside. Based on these interactions, P.C. Lynch formed a suspicion that Ms. Brush had alcohol in her body. He demanded she provide a sample of breath into an approved screening device. Ms. Brush did so at 5:15 p.m., resulting in a fail. Based on this result, P.C. Lynch arrested her for driving with excess blood alcohol.
12Ms. Brush was read her rights to counsel, cautioned, and issued a further breath demand. P.C. Lynch transported her to a police station in Oakville, arriving at 6:25 p.m. Ms. Brush was booked by Special Constable Gina Cabral, a supervisor in charge of booking arrested parties. The officers and Ms. Brush discussed contacting her counsel of choice. These discussions are set out in more detail below. Ms. Brush ultimately spoke to duty counsel.
13A Qualified Breath Technician, P.C. Shania Carroll, took custody of Ms. Brush at 6:48 p.m. Ms. Brush provided P.C. Carroll with two suitable samples of her breath into an approved instrument at 6:58 p.m. and 7:20 p.m. The truncated readings for each breath sample were 190 and 170 milligrams of alcohol in 100 millilitres of blood respectively.
2.2: Evidence Regarding Rights to Counsel
2.2.1: Events at the Roadside
14P.C. Lynch read Ms. Brush the standard rights to counsel shortly after her arrest. Ms. Brush said she understood those rights. When P.C. Lynch asked if she would like to speak to a lawyer, she responded that she wanted to speak to her dad. While he could not recall precisely how he responded, P.C. Lynch said that he could not provide her privacy in the cruiser and that they would sort out contacting a lawyer at the station.
15Ms. Brush testified that upon her arrest, she asked to speak to her father because he could get her in touch with a “really good” lawyer. She did not tell P.C. Lynch why she wanted to speak to her father.
2.2.2: Events in the Booking Area
16Upon arriving at the station, Ms. Brush was interviewed by S.C. Cabral. The entirety of these interactions in the booking area are audio and video recorded. Ms. Brush and officers Lynch, Schwantz, and Cabral all testified as to the interactions in the booking area. However, the booking video is the best evidence of what took place during this time.
17Unfortunately, some of the things said on the video are difficult to make out. This is due to loud ambient noise, the relatively soft voices of Ms. Brush and S.C. Cabral, and other background voices or noises. I watched the booking video multiple times at different volume levels while using headphones. Nevertheless, some portions of the discussions are completely inaudible.
18The following chronology sets out the most accurate account of the interactions in the booking area possible in the circumstances. It is, at some points, supplemented by the testimony of the witnesses and other evidence.
19The video starts at 6:29:27 p.m. Ms. Brush sits on the bench in front of S.C. Cabral. S.C. Cabral asks Ms. Brush if she understands the reasons for her arrest and her rights to counsel. Ms. Brush nods affirmatively to both questions.
20S.C. Cabral asks Ms. Brush if she has her own lawyer, or if she knows the name of one, or if she would like a free one. Ms. Brush grimaces and tilts her head back and forth to the left and right, an expression indicating ambivalence and uncertainty. Ms. Brush testified this was because she was unsure if S.C. Cabral was referring to either a criminal lawyer or any lawyer. Ms. Brush responds: “I know the name of one. I don’t know if she’s my lawyer [inaudible].”
21S.C. Cabral responds that they can try that lawyer and asks for her name. Ms. Brush responds: “Nancy Claridge. I was on the phone with her this morning. She’s my house lawyer. [inaudible].” S.C. Cabral says: “So she’s a real estate lawyer? I’ll look her up on the Law Society.”
22S.C. Cabral asks Ms. Brush to confirm the name of the lawyer and practice location. Ms. Brush provides this information. Ms. Brush adds that Ms. Claridge is on leave “right now” due to a medical issue. Ms. Brush mentions additional information about Ms. Claridge, but what she says is inaudible.
23Ms. Brush testified that Ms. Claridge is her real estate lawyer and her father’s corporate lawyer. She has known Ms. Claridge her whole life. She values Ms. Claridge’s opinion and advice. On the day of her arrest, Ms. Brush was hoping Ms. Claridge could calm her down and give her advice. If she was unable to, she was hoping Ms. Claridge could connect her with a criminal lawyer. Ms. Brush would trust the advice of any lawyer whom Ms. Claridge trusted. Ms. Brush did not explain any of this to the police.
24S.C. Cabral finds Ms. Claridge’s name on the Law Society webpage. S.C. Cabral says: “So she does corporate, commercial, wills, estates, trusts law, real estate law. I can phone her, and her email is here too, to see if she can recommend a criminal lawyer for you. Is that okay?” Ms. Brush responds: “Yes.”
25S.C. Cabral says: “So that’s what we’ll do. We’ll reach out to her. And if she doesn’t have a criminal lawyer handy, we’ll call duty counsel for you. [inaudible] … or whoever you like.” Ms. Brush responds: “Okay.”
26S.C. Cabral continues with the standard booking questions. While this was taking place, P.C. Schwantz calls Ms. Claridge’s office from her cell phone. P.C. Schwantz testified that she received Ms. Claridge’s office voicemail, but she did not leave a message. If Ms. Brush had said she wanted to speak to her, P.C. Schwantz would have called her back and left a message. P.C. Schwantz did not communicate to Ms. Brush that she could have left a voicemail. Ms. Brush testified that if P.C. Schwantz had communicated this, Ms. Brush would have asked P.C. Schwantz to call back and leave a voicemail message for Ms. Claridge.
27At 6:34 p.m., P.C. Schwantz advises Ms. Brush and S.C. Cabral that Ms. Claridge’s office does not have an after-hours number, and that they were closed. P.C. Schwantz adds that: “they don’t look to be like they do criminal law.” P.C. Schwantz testified she said this because non-criminal lawyers do not typically have after-hours numbers and would be more difficult to get a hold of at that time of day than a criminal lawyer. She based that assessment on her employment with law firms prior to becoming a police officer. She did not specifically explain this to Ms. Brush.
28P.C. Schwantz asks Ms. Brush: “Do you want me to try a different lawyer, or do you want me to call duty counsel for you?” S.C. Cabral adds: “I can send her an email and maybe that will go to her. And in the meantime do you want to call duty-.“ Ms. Brush interjects midway through S.C. Cabral’s statement, and says: “Email or duty.”
29In Ms. Brush’s cross-examination, the Crown asked Ms. Brush to confirm that she did not ask the officers what other options she had. Ms. Brush responded that she was not going to tell an officer how to do their job. She was going to do what they told her.
30P.C. Schwantz says: “So I’ll call duty right now, but we’ll also email, okay?” Ms. Brush responds: “Okay.” S.C. Cabral sends an email to Ms. Claridge, while inquiring with Ms. Brush if she wishes the officer to include the reasons why she was arrested. This was because the nature of the charge was confidential. Ms. Brush’s response is inaudible.
31Ms. Brush is then briefly lodged in cells. The video ends at 6:37:35 p.m.
32The emails S.C. Cabral sent to Ms. Claridge’s office were produced at trial:
(1) At 6:36 p.m., S.C. Cabral wrote to Ms. Claridge: “Hi Nancy, I have your client Jessica Brush here with us. She is wondering if you can recommend a criminal lawyer she can speak to right now? Thank you.”
(2) At 6:37 p.m., S.C. Cabral received an automatic reply from Ms. Claridge’s email address, which reads: “Hello, I am not in the office today due to illness. If your matter is urgent, please contact my clerks for assistance.” The auto-reply lists the names and email addresses of three of Ms. Claridge’s law clerks
33S.C. Cabral did not tell Ms. Brush about this auto-reply. The officer looked up the clerks’ names on the Law Society website. She did not email any of the clerks because they were not lawyers.
34Ms. Brush testified that she emailed Ms. Claridge earlier in the day and received the same auto-reply email. In response, Ms. Brush called one of the clerks and asked for Ms. Claridge to call her. Ms. Claridge called Ms. Brush back shortly after that at 11:30 a.m.
2.2.3: Call to Duty Counsel and Events in the Breath Room
35Following this exchange, P.C. Schwantz called duty counsel at 6:31 p.m. Ms. Brush spoke to duty counsel shortly thereafter.
36At 6:48 p.m., after Ms. Brush finished speaking to duty counsel, P.C. Carroll took custody of her and brought her into the breath room. Like the booking area, the breath room is video and audio recorded. Like the booking area video, it is sometimes difficult to make out what is being said by the parties due to low voices, loud ambient sounds, and the noise from the Intoxilyzer. I also reviewed the breath video repeatedly with headphones at different volumes to discern what is discussed.
37At 6:50 p.m., P.C. Carroll confirms with Ms. Brush that she spoke to duty counsel and asks if she was satisfied with that conversation. Ms. Brush confirms that she was satisfied. P.C. Carroll re-reads the rights to counsel in full, including telling Ms. Brush that she can speak to any lawyer she wishes. P.C. Carroll again asks Ms. Brush whether she was happy with the duty counsel she talked to. Ms. Brush says that she was. Ms. Brush never asks to speak to any other lawyer.
38Ms. Brush testified that she did receive legal advice from duty counsel but did not know whether it was good or bad advice. She did not trust duty counsel because she does not know them. When she told P.C. Carroll that she was satisfied with the advice from duty counsel, she meant that duty counsel was not rude to her or disrespectful. Nevertheless, duty counsel was not the lawyer she wanted to speak to. She wanted to speak to Ms. Claridge. However, in the circumstances she faced, she felt like she had no other options. Some advice from duty counsel was better than no advice at all, which is what she was happy with.
39In cross-examination, the Crown noted that Ms. Brush did not say to P.C. Carroll that she still wanted to speak to Ms. Claridge. Ms. Brush responded that she did not want to be disrespectful to the officers, who were doing their job. As a victim of domestic violence, she did not feel comfortable speaking up to the officers.
2.2.4: Communications with Ms. Claridge after the Breath Samples
40At 8:23 p.m., over an hour after the second sample was obtained, Ms. Claridge emailed S.C. Cabral, saying: “Hi Gina, I would suggest Carrie Bellan,” and included Ms. Bellan’s phone number. She continues: “Can I be of any assistance?”
41At 8:31 p.m., Ms. Claridge sent a further email to S.C. Cabral, advising that she sent Brian Starkman’s name and phone number to Ms. Brush’s father.
42Ms. Bellan and Mr. Starkman are both highly experienced criminal defence lawyers.
43At 8:33 p.m., S.C. Cabral responded to Ms. Claridge, telling her that Ms. Brush spoke to duty counsel and was satisfied with that. S.C. Cabral said Ms. Brush was about to be released and that she would pass on counsel’s number to her.
2.2.5: Evidence of Ms. Claridge’s Law Clerks
44The three clerks listed in Ms. Claridge’s auto-reply email prepared a joint statement, which was admitted at trial as an Agreed Statement of Fact. Their business hours are from 9:00 a.m. until 5:00 p.m. Monday to Friday. Their office email is not accessible on personal phones. They all have Ms. Claridge’s cell phone number.
45Had the clerks been emailed by the police at 6:37 p.m. on May 15, 2025, they may have seen that email that evening in two circumstances:
First, they may have checked their email after hours, which they do from time to time depending on the circumstances – such as waiting for an important email to arrive. They cannot say whether that was the case on the offence date.
Second, if they were working after-hours, which they do from time to time depending on the circumstances and whether there were any urgent deadlines upcoming. Again, it is impossible to know whether they were working late on the offence date.
46Had any of the clerks received an email from the police, they would have immediately texted or phoned Ms. Claridge.
3.0: Position of the Parties
3.1: The Defence
47In her defence, Ms. Brush alleges the police violated her right to counsel in four different ways.
3.1.1: Reasonable Efforts by the Police
48First, Ms. Brush submits the police failed to take reasonable steps to contact her counsel of choice, Ms. Claridge. When P.C. Schwantz first called counsel and received a voicemail, the officer did not leave a message. When S.C. Cabral received Ms. Claridge’s auto-reply directing her to contact her clerks if the matter is urgent, S.C. Cabral did not do so. The fact that the clerks were not lawyers was a poor explanation for not emailing them to facilitate contact with Ms. Claridge.
3.1.2: Interfering with Right to Counsel of Choice
49Second, Ms. Brush submits the police never intended to allow Ms. Brush to speak to Ms. Claridge. Upon learning Ms. Claridge was not a criminal lawyer, they only sought to receive a referral from Ms. Claridge to a criminal lawyer. This was not their decision to make. In proceeding as they did, they violated Ms. Brush’s right to counsel of choice.
3.1.3: Inappropriate Steering to Duty Counsel
50Third, Ms. Brush submits that when Ms. Claridge was not immediately available, the police defaulted to facilitating contact with duty counsel only. They presented Ms. Brush with a false binary choice: speak to Ms. Claridge or speak to duty counsel if Ms. Claridge is not immediately available. In doing so, they did not allow Ms. Brush to select another lawyer of her choosing.
3.1.4: Providing Resources
51Fourth, and related to the above, Ms. Brush submits the police should have provided her with access to resources, such as the internet, to allow Ms. Brush to research and select a lawyer of her choosing. This is necessary for her to be able to exercise the right to speak to counsel of her choosing.
3.1.5: Summary of Defence Position
52Given the above breaches, Ms. Brush submits that admitting the breath readings would bring the administration of justice into disrepute and should be excluded under s. 24(2) of the Charter. In the absence of admissible evidence of her blood-alcohol concentration, the charge must be dismissed.
3.2: The Crown
53In response, the Crown submits the obligation on the police to contact counsel of choice works in tandem with a detainee’s obligation to exercise reasonable steps. In assessing an alleged Charter violation, a judge must assess the actions of both parties on a reasonableness standard. It was reasonable for the police to not leave a voicemail after hours.
54In this case, Ms. Brush was given options: the officers could email Ms. Claridge, knowing she may or may not respond; Ms. Brush could call any other lawyer; or Ms. Brush could speak to duty counsel. In choosing “email or duty”, Ms. Brush was exercising her right to counsel in the manner of her choosing. In that regard, this case is akin to R. v. Willier, 2010 SCC 37, and R. v. McCrimmon, 2010 SCC 36, in which detainees who were unsuccessful in contacting counsel of choice chose to exercise their right to counsel by speaking with duty counsel.
55When Ms. Brush told the police that she was satisfied with the call to duty counsel, there was no obligation on the police to do anything further. If Ms. Brush was not actually satisfied, it was her obligation to tell this to the police. In the circumstances, the police were entitled to proceed with collecting samples of Ms. Brush’s breath.
4.0: Analysis
56As I will explain, I conclude the officers violated Ms. Brush’s right to counsel of choice in two separate but related ways. First, they did not make reasonable efforts in contacting her counsel of choice. Second, they presumed Ms. Brush’s counsel of choice could not assist her and instead sought from counsel only a referral to a criminal lawyer.
57I do not agree with Ms. Brush that the officers inappropriately steered her to duty counsel. Furthermore, I do not agree that in these factual circumstances they were obliged to provide her with resources to find a lawyer of her choosing.
4.1: The Officers Did Not Make Reasonable Efforts in Contacting Counsel of Choice
4.1.1: The Obligation to Make Reasonable Efforts
58The obligation on the police to facilitate contact with counsel and the responsibility of the detainee to take reasonable steps to contact counsel work in tandem. The police must make reasonable efforts to contact the detainee’s counsel of choice, and the detainee must exercise reasonable diligence in their efforts to connect with counsel. Both obligations are tested against reasonableness-based standards: R. v. Willier, at para. 33; and R. v. Edwards, 2024 ONCA 135, at para 36.
59When assessing the reasonableness of the actions of the police, the question is not whether there is some additional step the police could have taken which may have assisted in contacting counsel of choice. Where the police assume control over calling counsel, the question also is not whether the police took the steps that the particular detainee would have taken had they been in control of the process. The question is whether, in the circumstances of the case, the police took reasonable steps to connect the detainee with counsel of choice: see R. v. Edwards, ibid. at paras 37-44.
60Whether the police exercised reasonable diligence in attempting to contact counsel depends on the particular circumstances of the case. Where the police assume control over the means by which counsel of choice is contacted, it is reasonable to expect the police will take a more active role in contacting counsel: see R. v. Edwards, ibid, at para. 42.
4.1.2: The Police Did Not Make Reasonable Efforts in this Case
61There are two aspects of the police conduct that I find fell short of reasonable efforts to contact counsel.
62First, when P.C. Schwantz called Ms. Claridge’s office and received the office voicemail, she should have left a message. Leaving a voicemail may well have been a fruitless endeavour, given that Ms. Claridge was a civil lawyer on medical leave and being called after regular business hours. However, leaving a message and asking her to call back would have taken no more than twenty seconds. After that step was taken, the police could safely say they tried one of the most obvious steps to try to reach counsel, at which point the onus would be on Ms. Brush to exercise reasonable diligence herself in exercising her right to counsel.
63Second, S.C. Cabral should have emailed Ms. Claridge’s law clerks. Ms. Claridge’s auto-reply specifically said that if the matter was urgent, the sender should contact her clerks for assistance. What that ‘assistance’ may be is ambiguous. S.C. Cabral appears to have believed in the moment that the ‘assistance’ was to provide legal advice to a client, something law clerks are not permitted to do.
64I do not believe such an interpretation is reasonable. A reasonable interpretation of that response is that contacting the clerks includes assistance in facilitating access to Ms. Claridge. Law clerks work for lawyers, but they are not themselves lawyers and there are a limited number of things they can do on their own to assist a client. If a matter is urgent, a clerk can only work at the direction of a lawyer. They cannot provide legal advice. When Ms. Claridge’s auto-reply says to contact her clerks if the matter is urgent, she could not possibly have intended to convey that the clerks would provide legal advice. The purpose of inviting a client to contact the clerks was to, among other things, connect the client to Ms. Claridge.
65Furthermore, Ms. Brush told S.C. Cabral the specific medical condition that caused Ms. Claridge to be on leave. It was not a condition that debilitated her or prevented her from speaking to a client. Indeed, Ms. Brush told S.C. Cabral that she had spoken to Ms. Claridge earlier that day. Ms. Claridge was certainly reachable and could speak to clients, despite being on medical leave.
66With this information in mind, it was unreasonable for S.C. Cabral to not email the clerks. Like P.C. Schwantz’ failure to leave a voicemail, sending an email to the clerks asking for after-hours contact information for Ms. Claridge would have taken very little time or effort. Again, because it was a civil firm outside regular work hours, this step may have been fruitless. However, after sending an email, the police could confidently say they had exhausted all reasonable efforts to facilitate access to counsel of choice. The proverbial ball would then be in Ms. Brush’s court.
67The issue is not that the police failed to take an additional step that may have led to finding other means of contacting counsel, such as looking for Ms. Claridge’s website for additional contact information. The issue is that when the police had an obvious and immediate way to contact counsel, such as leaving a voicemail during the call to the office or replying to an auto-reply email, they did not take those simple additional steps that were right in front of them.
68For those reasons, I conclude the police failed in their implementational duties to make reasonable efforts to facilitate contact with counsel of choice. I find they did so because, as I will discuss below, they did not believe Ms. Claridge could provide legal advice about a criminal matter.
4.2: The Officers Interfered with Ms. Brush’s Right to Counsel of Choice
4.2.1: The Right to Counsel of Choice During Arrest
69Section 10(b) of the Charter states that upon arrest or detention, a person has the “right to retain and instruct counsel without delay…” Significantly, s. 10(b) does not specify that a detainee is entitled to retain and instruct a criminal lawyer.
70One might think that anybody detained and investigated for a criminal offence would naturally want to speak to a criminal lawyer. Certain areas of law are highly specialized. While there are generalist practitioners, many lawyers specialize in a single area of law. This is particularly true about criminal law. Impaired driving investigations can be highly technical and complex. The correct interpretation of Charter rights continues to evolve. The legislative provisions have changed significantly within the past decade.
71Given this context, one could understandably assume that anyone under arrest for drunk driving would want to speak to a lawyer specializing in criminal law. Asking a real estate lawyer for advice on a criminal matter may make as much sense as speaking to a neurologist for advice about a cardiac issue.
72While this assumption may have a superficial and logical appeal, it cannot guide the police’s conduct when facilitating access to counsel of choice. The right to choose a lawyer belongs to the detainee and the detainee alone.
73The right to choose one’s lawyer is one facet of s. 10(b). Where a detainee wishes to speak to a specific lawyer, they are entitled to a reasonable opportunity to contact chosen counsel. Provided the detainee exercises reasonable diligence in the exercise of those rights, the police must hold off on eliciting evidence from the detainee until they have had the opportunity to consult with counsel of choice: R. v. McCrimmon, supra, at para. 17.
74The importance of the right to speak to a detainee’s counsel of choice was explained by the Court of Appeal in R. v. McCallen, 1999 CanLII 3685 (ON CA), [1999] O.J. No. 202 (C.A.), at paras. 36-38:
“The reasons why clients may choose one lawyer rather than another may vary widely and will often turn on personal preferences or other factors that do not lend themselves to objective measurement. Professional reputation and competence will no doubt be important factors in the choice of counsel, but it would understate the full nature of the relationship to suggest that the choice be limited to those considerations. The very nature of the right is that the subjective choice of the client must be respected and protected. Absent compelling reasons involving the public interest, the government and the courts need not be involved in decisions about which counsel clients may choose to act on their behalf.
In addition to constituting a valuable personal right to clients, s. 10(b) provides a right that is an important component in the objective perception of fairness of the criminal justice system. Criminal proceedings are adversarial in nature and pit the accused against the authority of the state. Without adequate safeguards the resulting contest may be unfairly weighted in favour of the state. The right to have the assistance of counsel is high on the list of those protections for accused persons which enable them to fully defend the charges brought against them. Including with this fundamental right to counsel, the additional right to choose one's own counsel enhances the objective perception of fairness because it avoids the spectre of state or court interference in a decision that quite properly should be the personal decision of the individual whose interests are at stake and whose interests the counsel will represent.
The corollary to this point, which is central to this case, is that the perception of fairness will be damaged, and in many cases severely so, if accused persons are improperly or unfairly denied the opportunity to be represented by the counsel they choose.”
75While McCallen dealt with counsel of choice at trial, the above passage has been applied to the right to counsel of choice of a person recently arrested by the police during a criminal investigation.
4.2.2: Similar Violations in Other Cases
76Justice Harris applied this reasoning, and explained a further consideration, in R. v. Hamasaki, 2020 ONSC 2579. In that case, Ms. Hamasaki was arrested for making a false statement to obtain a passport. She asked to speak to her immigration lawyer. An officer told her she may want to choose a lawyer “more versed in criminal law.” Ms. Hamasaki took that advice and spoke to duty counsel instead. She then provided an incriminating statement. No steps were ever taken to contact her counsel of choice.
77Justice Harris found that Ms. Hamasaki’s s. 10(b) rights were violated by the officer’s suggestion. He excluded the statement from evidence. As he explained, in the context of an arrest, the police have a dual role that have potentially conflicting goals. As custodians of a detained person, they have a legal obligation to facilitate access to counsel – which may lead that person to refuse to participate in the investigation or make a statement. They also have obligations as criminal investigators to obtain evidence of the offence.
78Unless the police assiduously comply with all aspects of a detainee’s rights to counsel, an appearance may be left that their conduct prejudiced the fairness of the proceedings against a vulnerable detainee, who may prefer the relationship they have with counsel than that counsel’s specific area of expertise. In that case, the vulnerable detainee complied with the police suggestion and gave up her right to select which counsel she spoke to for advice: see Hamasaki, at paras. 21-26, 61-66.
79R. v. Ingabire, 2026 ONCJ 102 is a more egregious example of this type of breach. Following an arrest for impaired driving, the accused provided the name of a lawyer she worked with. If the officer could not contact that lawyer, the accused wished to speak to duty counsel.
80The officer learned through internet searches that the counsel of choice was a real estate lawyer and did not practice criminal law. The officer spoke to counsel of choice, who confirmed they did not practice criminal law. The officer then called duty counsel for the accused. He did so because he believed it would be more beneficial for her to speak to a criminal lawyer. However, he never told the accused that he had actually spoken to her counsel of choice or asked her what she would like to do.
81Justice Libman found the officer’s conduct to be a clear violation of Ms. Ingabire’s right to counsel of choice. The officer used subterfuge to deny her right to choose her counsel. The officer did not tell the accused that her counsel of choice was on the phone and immediately available. The officer took it upon themselves to select a lawyer whom the officer viewed as better for the accused. It was not for the police to determine the merits of the legal service provider an accused decides to contact. Based on this violation, as well as a separate section 8 violation for delays in making a roadside screening demand, he excluded her breath samples from evidence.
4.2.3: The Violation in this Case
82If Ms. Claridge could not give Ms. Brush legal advice about a criminal matter, that is an issue between Ms. Claridge and Ms. Brush – or perhaps between Ms. Claridge and the Law Society. The police are not entitled to presume that Ms. Claridge could not or would not give legal advice to Ms. Brush. Nor are they entitled to assume or influence Ms. Brush on how she should exercise her right to counsel of choice.
83In fairness to the police, Ms. Brush never specifically or directly said that she wanted to speak to Ms. Claridge. However, this is implicit from the sequence of events. S.C. Cabral asked if she understood her rights to counsel, which included the right to call any lawyer she wished without delay. She is then asked if she had a lawyer or the name of a lawyer, and Ms. Brush provides Ms. Claridge’s name.
84At that point, the police should have clarified whether Ms. Brush wished to speak with Ms. Claridge directly, if Ms. Brush wanted merely a referral from Ms. Claridge since she was not a criminal lawyer, or potentially speak to someone else including duty counsel. The police were not entitled to assume how Ms. Brush would or should exercise her right to counsel of choice.
85I find that is exactly what S.C. Cabral did in this case. Upon learning that Ms. Brush’s counsel of choice was a real estate lawyer, S.C. Cabral said she would reach out to Ms. Claridge “to see if she can recommend a criminal lawyer for you.” Implicit in that statement is the assertion that she would not let Ms. Brush speak to Ms. Claridge because she did not practice criminal law, and that contacting Ms. Claridge was only a means to the end of finding a criminal lawyer. S.C. Cabral’s approach also carried with it the significant potential of influencing which counsel Ms. Brush chose to speak to.
86S.C. Cabral’s email to Ms. Claridge contains the same implicit assumption that she could not give Ms. Brush relevant legal advice. S.C. Cabral did not write in her email: “Ms. Brush would like to speak to you.” She wrote: “[Jessica Brush] is wondering if you can recommend a criminal lawyer she can speak to right now?” That is not what Ms. Brush said – that is what the police told Ms. Brush they would do, and what Ms. Brush went along with.
87Based on the above, I find the police violated Ms. Brush’s right to counsel of choice.
4.3: The Officers Did Not Steer Ms. Brush to Duty Counsel
88Ms. Brush submits the officer provided her with a false binary choice: to call counsel of choice or duty counsel. Since counsel of choice was not immediately available, the police essentially told Ms. Brush that her only option was duty counsel.
89I reject this submission. Ms. Brush was told multiple times that she could call any lawyer she wished. She was told this during P.C. Lynch’s recitation of the rights to counsel, and again during P.C. Carroll’s recitation of the same. Furthermore, when P.C. Schwantz told Ms. Brush that Ms. Claridge’s office was closed and they did not have an after-hours number, the officer specifically asked her: “Do you want me to try a different lawyer, or do you want me to call duty counsel for you?” The fact that S.C. Cabral interjected with the suggestion of emailing Ms. Claridge did not undermine what P.C. Schwantz had just said. Ms. Brush never expressed any confusion about what she was being told, nor would the police have any reason to believe she did not understand the plain words spoken by the officer.
90In no way was Ms. Brush misled by the police about her options to speak to any lawyer she wished. Where the police comply with the informational component of s. 10(b), and there is nothing objectively misleading about the totality of the information provided about the scope of rights to counsel, including the right to speak to any counsel, the police have not steered a detainee to duty counsel.
4.4: The Officers Were Not Obliged to Provide Ms. Brush with Resources to Find a Lawyer
91Where a detainee requests a phonebook to locate the phone number of a specific lawyer, the police are obliged to either provide that phone book or make reasonable efforts themselves to find that lawyer’s phone number. Furthermore, if a detainee does not have a lawyer in mind but requests access to resources to find one, they should be given the opportunity and means to do so. This can include being provided with internet access or a phone book: see R. v. Ruscica, 2019 ONSC 2442, at para. 38; and R. v. Persaud, 2020 ONSC 3413, at paras. 107-108.
92However, there is no obligation on the police to provide access to those resources in the absence of a request from the detainee: see R. v. Raaneyi, 2018 ONCJ 154, at paras. 21-23; R. v. Ghotra, 2020 ONCA 373 at para. 41, leave refused, [2020] S.C.C.A. No. 187; and R. v. Persaud, ibid, at paras. 110-112.
93Ms. Brush never asked for access to a phone book or the internet to find a lawyer. The police’s failure to provide access to resources Ms. Brush never asked for is not a violation of her right to counsel.
4.5: The Breath Samples Should Not be Excluded from Evidence
94Having found a violation of Ms. Brush’s right to counsel, I must consider whether the breath samples should be excluded from evidence pursuant to section 24(2) of the Charter.
95The onus is on the defence to establish, on a balance of probabilities, that the admission of this evidence would bring the administration of justice into disrepute. When making this determination, I must bear in mind the core purpose of s. 24(2) of the Charter: to maintain the repute of the administration of justice. What is at stake is the long-term sense of maintaining the integrity of, and the public’s confidence in, the justice system: see R. v. Grant, 2009 SCC 32.
96Pursuant to Grant, the admissibility of evidence under s. 24(2) is approached by examining:
The seriousness of the Charter-infringing state conduct;
The impact of the breach on the Charter-protected interests of the accused; and,
Society’s interest in an adjudication on the merits.
97The first two factors pull towards the exclusion of evidence. The more serious the state infringing conduct and the greater the impact on the Charter-protected interests of an accused, the stronger the support for exclusion. The third factor pulls in the opposite direction towards the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case: see R. v. McGuffie, 2016 ONCA 365, at paras. 60-62; and R. v. Harrison, 2009 SCC 34, at paras. 33-34.
4.5.1: The Seriousness of the Charter-Infringing State Conduct
98When considering the seriousness of Charter-infringing police conduct, the court must situate that conduct on a scale of culpability. Inadvertent, technical or otherwise minor infringements impact less upon the administration of justice than wilful or reckless disregard of Charter rights. However, a “good faith” error must be reasonable. An absence of “bad faith” does not equate to a finding of “good faith.” Negligence in meeting Charter standards is not good faith. The reputation of the administration of justice sometimes requires the court to disassociate themselves from evidence obtained as a result of police negligence in meeting those mandated constitutional standards: see R. v. Le, 2019 SCC 34, at paras. 143, 147; and R. v. Fox, 2026 SCC 4, at para. 94.
99In this case, the police were clearly concerned with connecting Ms. Brush with a lawyer who could give her appropriate legal advice. In this context, they assumed she would want to speak to a criminal lawyer and that only a criminal lawyer would be able to assist Ms. Brush. There’s no suggestion that they acted with wanton disregard to her right to counsel. But this does not equate to good faith on their part.
100In this case, the police fell short of their duties to facilitate contact with Ms. Brush’s counsel of choice. As Justice Doherty said in R. v. Rover, 2018 ONCA 745, at para. 45:
The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.
101I find the above comments are also apropos of the right to speak to counsel of choice. For someone like Ms. Brush, who had never before been arrested by the police, and who was unsure of the process or what her rights and obligations are, speaking to a lawyer she knew and trusted would have had significant and meaningful psychological value for her.
102Proceeding on the assumption that her chosen lawyer could not assist her and taking insufficient steps to facilitate that contact fell short of their constitutional obligations and undermined a key component of Ms. Brush’s s. 10(b) rights. While not nearly as egregious as the breach in Ingabire, this breach is nonetheless serious.
4.5.2: The Impact of the Breach on the Charter-Protected Interests
103There are several factors that I find significantly attenuate the impact of the breaches.
104First, I find as a fact that Ms. Brush recognized the potential difficulties in reaching Ms. Claridge. It was after-hours and there was no emergency contact phone number. Ms. Claridge was on medical leave of absence. Based on her own testimony, when Ms. Brush emailed Ms. Claridge earlier in the day, she received the same auto-reply email and learned that contact with Ms. Claridge was only possible through calling her law clerks.
105Given that it was after hours and there was no answer at Ms. Claridge’s office, I believe Ms. Brush recognized that it was unlikely contacting the clerks would be possible. This is perhaps why Ms. Brush did not tell the officers about the importance and necessity of contacting the law clerks to facilitate contact with Ms. Claridge. A lack of diligence by Ms. Brush does not excuse the negligence by the police, but it does mitigate the impact of their conduct on her Charter-protected interests.
106Second, while the police cannot influence which counsel a detainee may choose to contact, they are entitled to point out to a detainee that a lawyer may not be available within a reasonable time and remind them of the availability of duty counsel. That is precisely what happened in Willier, with approval from the Supreme Court.
107In Willier, the arresting officer reasonably informed Mr. Willier that it was a Sunday, so counsel of choice was unlikely to return his call and reminded him of the immediate availability of duty counsel. Mr. Willier was properly presented with another route by which to obtain legal advice, and he voluntarily chose that second route. He expressed no dissatisfaction with the advice from duty counsel, nor did he ask to continue to wait for counsel of choice to try to call him again: see Willier, at paras. 43-44.
108That is also what took place here. P.C. Schwantz noted there was no after-hours number for Ms. Claridge, whom Ms. Brush knew was on medical leave. The officers gave Ms. Brush the option of calling another lawyer, having them email Ms. Claridge, or calling duty counsel. Ms. Brush made a decision. She asked the police to email counsel, and failing that, asked to speak to duty counsel. Upon receiving advice from duty counsel, she expressed no dissatisfaction with that advice and did not express a continued desire to wait for Ms. Claridge.
109Ms. Brush testified that she agreed to the process suggested by the police because she would not presume to tell the police how to do their job and did not wish to be seen as disrespectful. She further testified that she said she was satisfied with duty counsel because duty counsel was not rude to her and some advice was better than none. She did not feel comfortable speaking up about her continued desire to speak to Ms. Claridge because, as a victim of domestic violence, she is not comfortable speaking up to the police.
110I do not accept Ms. Brush’s evidence on those points.
111Throughout their interactions, P.C. Schwantz, S.C. Cabral, and P.C. Carroll all treated Ms. Brush with kindness and respect. They were calm, patient, and appeared to genuinely want to assist her in contacting Ms. Claridge or any other lawyer of her choosing. When emailing Ms. Claridge, S.C. Carroll asks questions of Ms. Brush about what specifically should be included in the email and complied with Ms. Brush’s direction.
112Shortly before leaving the booking area to be lodged in cells, S.C. Cabral asks Ms. Brush if she wanted some toilet paper. Ms. Brush responds: “Yes, please, that’s always good.” Both she and S.C. Cabral chuckle at this light-hearted exchange. This is indicative of the rapport between the two during their interactions.
113While in the breath room, P.C. Carroll and Ms. Brush immediately have friendly interactions. P.C. Carroll invites Ms. Brush to call her by her first name, and to not call her “Ma’am”, since they’re around the same age. Ms. Brush smiles and laughs at this. Ms. Brush discusses her child and gets emotional about her ongoing divorce. P.C. Carroll sympathetically and reassuringly says she will try to make the process as painless as possible and offers her tissues.
114Throughout the interactions, Ms. Brush asked the officers a number of questions. She asked about calling her mother, she asked about what happened with her child, she asked about what happened with the items in her vehicle. She had no difficulty asking the officers questions about various aspects of the investigation and process.
115In the face of their interactions captured on the booking and breath room videos, Ms. Brush’s claim that she was uncomfortable speaking to the officers, asking questions about her rights, or speaking up about her continued desire to speak to Ms. Claridge was not credible. The nature of the interactions between the parties captured on video contradicts Ms. Brush’s evidence about her state of mind.
116Based on the above, I find Ms. Brush recognized the difficulties inherent in contacting Ms. Claridge. She chose duty counsel as a viable and acceptable option if Ms. Claridge was not available, and she was satisfied with the advice she received. If she was not in fact satisfied, she could have and should have said something to the officers. She did not. This significantly reduces the impact on her Charter-protected interests.
117Third, while I found the police should have taken additional steps to attempt to contact Ms. Claridge, I am not satisfied those steps would have necessarily been successful. Despite my finding that P.C. Schwantz should have left a voicemail, I have no evidence of how or when the voicemail would have been received and responded to. I infer it would not have been checked until regular business hours the next day.
118There is no way of knowing today whether Ms. Claridge’s law clerks were working late or checking their email after hours on May 15, 2025. However, given that Ms. Claridge was away from work on a medical leave, it is unlikely her clerks would have been working late because of an urgent matter or checking their email for an after-hours message.
119Even though the police could have made more efforts, in the circumstances, an email to Ms. Claridge remained the most direct and expedient way for the police to get a message to her. Many professionals, lawyers included, have their work emails connected to their personal phones, and can see and respond to them after-hours.
120Ms. Claridge did respond, but nearly two hours after S.C. Cabral sent her original email. This is well past a reasonable hold-off period the police were obliged to wait before proceeding with the breath tests. This reduces the impact on Ms. Brush’s Charter-protected interests even further.
121I find the breaches had only a minimal to moderate impact on Ms. Brush’s Charter-protected interests.
4.5.3: Society’s Interest in an Adjudication on the Merits
122The third line of inquiry asks whether the truth-seeking function of the criminal trial process would be better served by the admission of the evidence, or by its exclusion. The court must consider both the negative impact of admitting the evidence on the repute of the administration of justice, but also the impact of failing to admit the evidence: R. v. Grant, supra at para. 79; R. v. McColman, 2023 SCC 8, at para. 69. The court should consider factors such as the reliability of the evidence, the importance of the evidence to the Crown’s case, and the seriousness of the offence alleged.
123There are four factors that strongly favour inclusion in this case.
124First, the breath samples sought to be excluded are crucial to the Crown’s case. If I were to exclude them, Ms. Brush would be acquitted.
125Second, the evidence is reliable. There is no challenge to the accuracy of the readings. This is not a case, such as Hamasaki, where an accused gave an inculpatory statement in the face of the police undermining the right to counsel of choice – which is primarily intended to protect a detainee’s right to silence, and could have a direct bearing on whether that evidence was ever elicited. Had the police intended to facilitate contact with Ms. Claridge and taken those additional reasonable steps, the evidentiary record would be the same.
126Third, impaired driving is a serious offence. It is an offence which causes significant death and destruction on a daily basis. It has a far greater impact on Canadian society than any other crime. Society has a vital interest in combatting drinking and driving: see R. v. McColman, ibid, at para. 72; R. v. Bernshaw, 1995 CanLII 150 (SCC), [1994] S.C.J. No. 87, at para. 16.
127Fourth, the circumstances of this case are particularly aggravating. Ms. Brush drove a vehicle with a blood-alcohol content over twice the legal limit. She did so near a school. She nearly caused two collisions with other motor vehicles. The vehicle showed signs of another recent collision. She drove in a parking lot where parents were picking up their children from school or daycare. Most importantly, by driving with that BAC level, she endangered the two young children in her car. Society has a strong interest in adjudicating this case on the merits.
128This factor strongly favours inclusion of the breath samples.
4.5.4: Balancing the Grant Factors
129I consider this case a close call. If the violations here were more aggravated or compounded with other Charter violations, such as in Ingabire, or if the evidence obtained was an incriminating statement as opposed to breath samples, I would likely exclude the evidence.
130In this case, despite the seriousness of the breach, given the low impact on Ms. Brush’s Charter-protected interests, the reliability of the evidence, and strong interest in adjudicating this case on the merits, I am not satisfied Ms. Brush has met her onus to establish the admission of the breath samples would bring the administration of justice into disrepute.
5.0: Conclusion
131The application to exclude evidence of the samples of Ms. Brush’s breath is dismissed. I find Ms. Brush guilty.
Released: June 25, 2026
Signed: Justice Peter R. Maund