ONTARIO COURT OF JUSTICE
Bradford Courthouse
BETWEEN:
HIS MAJESTY THE KING
— AND —
RUDRA PATEL
TRIAL JUDGMENT
Evidence Heard: June 26, 2026
Reasons Delivered: July 22, 2026
Mr. M. Capotosto counsel for the Crown
Mr. D. Wilcox counsel for the Defendant
OVERVIEW
1On June 3, 2025, Rudra Patel was operating a Toyota Corolla westbound on Highway 89 in New Tecumseth. South Simcoe Police Service Constable Adams was travelling immediately behind him in a marked police cruiser.
2Police Constable Sisak – a new officer and trainee – was operating the police cruiser, while PC Adams was acting as coach officer. The rear of their cruiser contained a detainee, who was being transported to Nottawasaga.
3PC Adams observed Mr. Patel’s Corolla weaving into the oncoming eastbound lane of traffic and then back onto the westbound shoulder; this happened more than once. Eastbound traffic was heavy.
4Ultimately, Mr. Patel failed to negotiate a turn and drove his car into a steep ditch, where the vehicle came to rest on an angle.
5PC Adams approached the vehicle and found Mr. Patel, the sole occupant, seated behind the wheel; Mr. Patel appeared confused and was talking to himself. His car was still running. The officer observed open alcohol in the car. He opened the driver’s side door and directed Mr. Patel to step out.
6When Mr. Patel exited his Corolla, PC Adams immediately detected a strong odour of alcohol, noted red and bloodshot eyes, slurred speech, and obvious unsteadiness. PC Adams believed that Mr. Patel was operating his motor vehicle while impaired by alcohol and arrested him for impaired operation.
7A qualified breath technician later confirmed the officer’s belief: Mr. Patel’s breath samples resulted in readings of 220 and 210 mg of alcohol in 100 mL of blood. Mr. Patel was also charged with operating a motor vehicle with 80 or more mg of alcohol in his body.
8Mr. Patel does not dispute that he was the driver of the Corolla. He does not challenge the operation of the breath-testing instrument or the admissibility of the Certificate of a Qualified Technician, subject to his Charter arguments. His defence rests entirely upon alleged breaches of s. 10(b) of the Canadian Charter of Rights and Freedoms.
ISSUES
9The trial evidence requires resolution of the following issues:
i. Was there a delay between Mr. Patel’s arrest and the provision of rights to counsel and, if so, was that delay justified?
ii. Did comments made by PC Adams undermine Mr. Patel’s confidence in speaking to counsel and lead him to forego legal advice?
iii. Did Mr. Patel ever elect to speak with counsel?
iv. If he did, did police later obtain a valid waiver before proceeding (i.e., was he given a Prosper warning)?
v. Has the Crown proved the offences charged beyond a reasonable doubt?
DISCUSSION OF THE ISSUES
i. Was there a delay in police informing Mr. Patel of his rights to counsel?
10Section 10(b) of the Charter reads: “Everyone has the right on arrest or detention … to retain and instruct counsel without delay and to be informed of that right”.
11Section 10(b) contains two distinct rights: first, it obligates the police to inform a detainee of their right to speak with a lawyer without delay; second, it guarantees the right of a detainee to retain and instruct counsel: R. v. Bartle, 1994 CanLII 64 (SCC), [1994] S.C.J. No. 74, at pp. 191-92; R. v. Devries, 2009 ONCA 477, at para. 21.
12Mr. Patel claims that the police breached the first of these requirements, the informational component. The informational component has two parts: first, police must tell the detainee that they have the right to speak with a lawyer right away; second, police must tell the detainee how to obtain that legal advice, including the availability of duty counsel and Legal Aid, and the means of contacting them: Devries, at paras. 21-28.
13The “without delay” obligation of the s. 10(b) right means “immediately”. The immediacy of this obligation is, however, subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter: R. v. Suberu, 2009 SCC 33, at paras. 2 & 42; R. v. Pileggi, 2021 ONCA 4, at paras. 57-63.
14Where a delay in implementing rights to counsel is justified for safety reasons, there is no breach of s. 10(b): R. v. Griffith, 2021 ONCA 302, at para. 41.
15Mr. Patel was arrested at approximately 1:05 a.m. His rights to counsel were read to him at approximately 1:11 a.m. The delay was six minutes.
16The issue is not whether there was a delay; there plainly was. The issue is whether that delay was justified by the circumstances confronting PC Adams.
17The evidence establishes that it was.
18Mr. Patel had driven his vehicle into a steep ditch. His Corolla was resting at an angle. PC Adams had another detainee in his cruiser, who was being supervised by an officer-in-training. PC Adams tried to move Mr. Patel away from the car and up to higher ground for safety reasons but quickly discovered that Mr. Patel was so intoxicated and unsteady on his feet that the effort was unsuccessful. Mr. Patel stumbled and fell while trying to negotiate the incline. The officer eventually abandoned that plan and seated Mr. Patel safely on the side of the ditch and away from the angled Corolla. This was a reasonable decision.
19PC Adams also required his memobook before reading the rights to counsel, which was printed into the back pages of his duty book. He asked that PC Sisak deliver it to him. Once he received his memobook from the trainee officer, he asked Mr. Patel his tombstone identifying information and then read him his rights to counsel at 1:11 a.m.
20Throughout this period, Mr. Patel was highly intoxicated, repeatedly speaking over PC Adams, expressing concern about his vehicle, asking to be released, and attempting to engage the officer in conversation. PC Adams repeatedly advised Mr. Patel that he wanted to read him something before discussing the incident.
21I accept the evidence of PC Adams on this issue. His evidence was consistent with the body-worn camera recording and with the objective circumstances visible on that video. He readily acknowledged matters that were not favourable to the Crown’s position, including that other approaches might have been available in hindsight. Those concessions enhanced his credibility.
22I find that the delay was brief, operationally necessary, and justified. PC Adams provided Mr. Patel his rights to counsel at the first reasonably practical opportunity. He did his best to balance Mr. Patel’s constitutional rights while also trying to control the scene and ensure the personal safety of everyone present.
23There was no breach of Mr. Patel’s s. 10(b) rights arising from the delay in caution.
ii. Did PC Adams cause Mr. Patel to abandon legal advice?
24Mr. Patel alleges that a comment made to him by PC Adams caused him to abandon his interest in seeking legal advice.
25Section 10(b) specifically prohibits the police from belittling an accused’s lawyer with the express goal or effect of undermining the accused’s confidence in or relationship with defence counsel: R. v. Burlingham, 1995 CanLII 88 (SCC), [1995] 2 S.C.R. 206, at para. 14; R. v. Mujku, 2011 ONCA 64, at para. 36.
26Disparaging or denigrating counsel undermines the s. 10(b) right to counsel because it has the potential to erode the detainee’s confidence in counsel and/or interfere with the solicitor-client relationship, thereby impairing the meaningful exercise of the right to obtain and rely on legal advice before deciding whether to cooperate with the police.
27Defence argued that Mr. Patel expressed concern that a lawyer provided by police would not be a good lawyer and that PC Adams reinforced that concern when he later remarked that duty counsel “might not be the best lawyer”. Mr. Patel relies on that comment to argue that his confidence in legal assistance was undermined and therefore caused him to decline counsel.
28Despite Mr. Wilcox’s capable advocacy, I do not accept this submission. The evidence must be assessed in context.
29At the time of the interaction, Mr. Patel was extremely intoxicated. He candidly admitted that fact in his evidence on the voir dire. He agreed that he was “plastered”. He agreed that his memory was poor and that he required PC Adams’ body-worn camera recordings to reconstruct what occurred. He agreed that much of his focus that night was on avoiding jail, getting home, and ensuring that his vehicle was not damaged or towed.
30The officer’s body-worn camera footage confirms this. Repeatedly, Mr. Patel returned to the subjects of his vehicle, his parents, obtaining a warning, and avoiding the consequences of his arrest. Repeatedly, PC Adams attempted to return the discussion to the question of whether Mr. Patel wanted to speak to a lawyer.
31PC Adams asked the question numerous times. He explained that Mr. Patel could speak to a lawyer immediately. He explained that if Mr. Patel did not have a lawyer, one could be provided at no cost. He repeatedly sought a clear answer.
32The impugned comment arose because Mr. Patel himself had introduced it into the conversation. He suggested that a lawyer provided by the police would not be a good lawyer. The officer later mirrored that language when attempting to connect with the intoxicated Mr. Patel and explain duty counsel to him. He acknowledged in his evidence that the wording was not ideal.
33I accept the officer’s explanation.
34While I also accept that police stray onto constitutionally perilous ground when they comment on the quality of legal advice offered to a detainee, the circumstances here fall far short of the kind of deliberate denigration of counsel condemned in Burlingham.
35Although the comment was ill-advised and should be avoided in the future, I am not persuaded that it had any meaningful impact on Mr. Patel’s decision-making; that much is objectively evident from the interaction between him and PC Adams on the officer’s body-worn camera recording.
36I find that the officer’s comment did not undermine Mr. Patel’s confidence in counsel and did not cause him to forego legal advice.
iii. Did Mr. Patel ever elect to speak with counsel?
37The right to counsel under s. 10(b) is not absolute. Unless a detainee invokes the right and is reasonably diligent in exercising it, the duty on the police to provide a reasonable opportunity to obtain legal advice will either not arise in the first place or will be suspended: R. v. Sinclair, 2010 SCC 35, at para. 27; R. v. Owens, 2015 ONCA 652, at paras. 24-25.
38The burden is always on the defendant to prove a violation of s. 10(b), and the onus requires them to prove that they acted with reasonable diligence in exercising the right: R. v. Prosper, [1999] 3 S.C.R. 236, at para. 53; R. v. Van Binnendyk, 2007 ONCA 537, at para. 11.
39I find that Mr. Patel did not elect to speak with counsel.
40The body-worn camera video demonstrates that after receiving the caution, Mr. Patel stated that he did not have a lawyer. When asked whether he wanted to speak with duty counsel, he provided non-responsive answers, returned repeatedly to concerns about his vehicle, and ultimately declined the opportunity.
41The defence places considerable emphasis on the phrase, “sure, yeah”, that Mr. Patel uttered at some point.
42Viewed in context, I am not satisfied that those words constituted an unequivocal request to consult counsel. At minimum, the statement was ambiguous. What followed is far more important. The officer repeatedly sought clarification. Mr. Patel was repeatedly offered access to counsel. The more the officer explained the available options, the more Mr. Patel returned to concerns entirely unrelated to him obtaining legal advice. Eventually, he expressly declined the offer.
43The evidence establishes that PC Adams went well beyond the constitutional requirements. He continually attempted to determine whether Mr. Patel wanted legal advice; Mr. Patel repeatedly failed to express any genuine interest in obtaining it.
iv. Was a Prosper warning required?
44Where the accused first requests to speak to a lawyer and has been reasonably diligent in exercising it, but later changes their mind, the onus is on the prosecutor to establish that there was a valid waiver of the right to counsel: Prosper, at para. 44; R. v. Willier, 2010 SCC 37, at para. 31
45This is not a Prosper case.
46Given my finding that Mr. Patel did not elect to speak with counsel, nor was he anything close to diligent in attempting to exercise that right, no reactivation issues arise here.
47The evidence does not establish an initial request for counsel followed by a later waiver. Rather, it establishes continued offers of counsel followed by repeated non-responsive answers and an ultimate refusal.
48On the facts of this case, the police had no obligation to provide additional advice or issue a Prosper warning to Mr. Patel.
v. Has the Crown proved the charges?
49Having found no breach of s. 10(b), no remedy under s. 24 arises.
50I now turn to the evidence presented by the Crown on the merits of the case. It is overwhelming.
51PC Adams observed Mr. Patel’s Corolla weaving into the oncoming lane of traffic and then onto the shoulder of the lane he was travelling in. Traffic was relatively heavy for the hour, given the presence of a nearby Honda automotive factory. PC Adams observed Mr. Patel drive his vehicle into a ditch. He observed an open container of alcohol, a bottle of tequila, a strong odour of alcohol, bloodshot eyes, slurred speech, confusion, and significant difficulty with balance.
52PC Willson from the Ontario Provincial Police, who later took custody of Mr. Patel, observed stumbling, rambling speech, and continued signs of impairment.
53Breath samples taken shortly after the incident yielded readings of 220 mg and 210 mg of alcohol in 100 mL of Mr. Patel’s blood.
54I am satisfied beyond a reasonable doubt that Mr. Patel’s ability to operate a motor vehicle was impaired by alcohol.
55I am also satisfied beyond a reasonable doubt that, within two hours of driving, he had a blood alcohol concentration exceeding 80 mg of alcohol in 100 mL of blood.
56Mr. Patel is guilty of both offences.
57Given that both convictions arise from the same driving transaction and involve the same criminal wrong, convictions will be entered on both counts but one will be conditionally stayed pursuant to the principle enunciated in Kienapple v. R., 1974 CanLII 14 (SCC).
CONCLUSION
58The Charter application is dismissed.
59The Crown has proved beyond a reasonable doubt that Mr. Patel committed the offences charged. I find Mr. Patel guilty of:
i. Impaired operation of a motor vehicle, contrary to s. 320.14(1)(a) of the Criminal Code; and
ii. Operating a motor vehicle with a blood alcohol concentration equal to or exceeding 80 mg of alcohol in 100 mL of blood within two hours of driving, contrary to s. 320.14(1)(b) of the Criminal Code.
60The matter will proceed to sentencing.
Signed: Justice Craig A. Brannagan