ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
STANISLAW RADWANSKI
Before Justice Peter R. Maund
Heard on November 19 and December 4, 2025
Reasons for Judgment released on January 27, 2026
Ameen Al Rohani counsel for the Crown
Alan Gold counsel for the defendant Stanislaw Radwanski
1.0: INTRODUCTION
1Stanislaw Radwanski stands charged with having excess blood alcohol within two hours after ceasing to operate a conveyance, contrary to section 320.14(1)(b) of the Criminal Code. The charge arises from an investigation by Ontario Provincial Police officer Tamara Beckers on June 28, 2024. P.C. Beckers stopped Mr. Radwanski while he was driving on the QEW, observed signs he had been drinking, and demanded a sample of his breath into an Approved Screening Device (ASD), which Mr. Radwanski failed. She placed him under arrest and transported him to the police detachment, where he provided breath samples that showed his blood-alcohol concentration was well over the legal limit.
2In his defence, Mr. Radwanski alleges that his breath samples were collected unlawfully, contrary to his right against unreasonable search and seizure. Furthermore, he alleges the arresting officer violated his rights to counsel by failing to ask whether he wished to speak to counsel, and by failing to call counsel at the first reasonable opportunity. Finally, he alleges the officer provided him with a false binary choice: selecting a lawyer he presently had in mind or duty counsel – which is insufficient to comply with the informational component of s. 10(b) of the Charter. As a result of these violations, Mr. Radwanski submits his breath samples should be excluded from evidence.
3For the following reasons, I find the breath samples were collected lawfully. Furthermore, with one exception, P.C. Beckers did not violate Mr. Radwanski’s right to counsel by unnecessarily delaying his call to counsel or restricting his ability to contact counsel of choice. The officer did violate his s. 10(b) rights by not being able to explain an additional delay of 11 to 12 minutes at the roadside. However, I would not exclude the breath readings pursuant to s. 24(2) because of this breach.
4The charge is otherwise proven. I find Mr. Radwanski guilty.
2.0: RELEVANT EVIDENCE
5The following is an overview of the evidence and the police investigation; I expand on additional relevant facts in my analysis.
6At 2:40 p.m. on June 28, 2024, P.C. Beckers received a report of a two-vehicle collision on the Toronto-bound QEW at the top of the Burlington Skyway. Police dispatchers advised that a white Dodge Ram pickup truck, licence plate BA30283, had left the scene of the collision. P.C. Beckers left the detachment to attempt to locate and intercept the truck.
7At 2:54 p.m., P.C. Beckers located the suspect motor vehicle travelling on the Toronto-bound QEW. The truck had significant front-end damage, suggesting it had been involved in a collision. She stopped the truck and spoke to the driver, whom she identified as Stanislaw Radwanski by way of his driver’s licence.
8While speaking with Mr. Radwanski, P.C. Beckers detected the odour of alcohol emanating from him and from within the vehicle. Based on this, she suspected he was operating a vehicle with alcohol in his body.
9At 2:57 p.m., she made a proper demand for a roadside sample into an ASD.
10At 3:03 p.m., Mr. Radwanski provided a suitable sample into the ASD on his third attempt. This registered a ‘fail’ reading, indicating to the officer that Mr. Radwanski was driving with excess blood alcohol.
11At 3:04 p.m., P.C. Beckers placed Mr. Radwanski under arrest. She handcuffed him and seated him in the rear of her cruiser until a male officer, P.C. Persoon, arrived to conduct a frisk search.
12At 3:08 p.m., P.C. Beckers read Mr. Radwanski his right to counsel. At 3:09 p.m., she read him a standard police caution and demand for further breath samples.
13At 3:13 p.m., P.C. Persoon arrived on scene and conducted a pat-down search of Mr. Radwanski. At 3:25 p.m., P.C. Beckers left the scene with Mr. Radwanski and drove directly to the Burlington OPP detachment. They arrived at 4:09 p.m.
14Officers paraded and re-searched Mr. Radwanski, at which point he was then placed in cell. P.C. Beckers called duty counsel at 4:14 p.m.
15At 4:26 p.m., counsel Ellen Williams called the detachment to speak to Mr. Radwanski. At 4:29 p.m., Mr. Radwanski was placed in a privacy booth to speak to Ms. Williams, which he did until 4:43 p.m. Following the completion of the call to counsel, Mr. Radwanski was transferred to the custody of P.C. Singh, a qualified breath technician.
16In the breath room, P.C. Singh re-read Mr. Radwanski his rights to counsel. Mr. Radwanski said he understood, confirmed that he had spoken to duty counsel, and that he did not wish to speak to anyone else.
17P.C. Singh obtained suitable samples of Mr. Radwanski’s breath using an Intoxilyzer 8000C at 4:52 p.m. and 5:12 p.m. Both samples indicated that Mr. Radwanski’s blood-alcohol concentration was 120 milligrams of alcohol in 100 millilitres of blood. Following the collection of the samples, P.C. Beckers processed Mr. Radwanski’s release from police custody at 6:14 p.m.
3.0: POSITIONS OF THE PARTIES
3.1: The Defence
18Mr. Radwanski advanced four arguments, all directed towards excluding the breath samples due to violations of his Charter rights. Apart from these arguments, Mr. Radwanski makes no substantive trial submissions regarding whether the Crown has proven his guilt beyond a reasonable doubt. I agree with this approach, as I see no other issues with the proof of the offence being made out.
3.1.1: “As Soon as Practicable”
19First, Mr. Radwanski submits the breath samples were taken unlawfully. The statutory provision that permits the police to collect breath samples requires the person to provide those samples “as soon as practicable.” Counsel submits the police did not collect these samples as soon as practicable due to several periods of unnecessary delay. Accordingly, the breath samples were taken unlawfully.
3.1.2: Rights to Counsel – Informational Component
20Second, Mr. Radwanski submits the officer failed to comply with a critical component of her duty to provide him with his rights to counsel by failing to ask the final question of the standard rights: “Do you wish to call a lawyer now?” This is aggravated by the fact that P.C. Beckers has a notebook entry indicating that she asked that question, and that Mr. Radwanski nodded, indicating ‘yes’. Under cross-examination when confronted with the contents of the in-car camera audio recording which did not capture the final question, she conceded that she must not have asked him whether he wished to speak to a lawyer.
3.1.3: Rights to Counsel – Delay in Implementation
21Third, Mr. Radwanski submits that he was denied his right to speak to counsel at the first reasonable opportunity due to several cascading decisions made by the officer. Many of these unnecessary delays overlap with those noted in the ‘as soon as practicable’ argument. These include a four-minute delay in initially reading rights to counsel, a delay occasioned by requiring a same-gender officer to conduct the pat-down search, not permitting Mr. Radwanski to speak to counsel in the back of the cruiser, and an unnecessary delay in travelling to the Burlington OPP detachment.
3.1.4: Rights to Counsel – Unduly Restrictive Information
22Fourth, Mr. Radwanski submits the officer failed to properly inform him of his right to counsel by framing the decision as a false binary choice: speak to a lawyer he presently has, or to call duty counsel. He argues the officer should have also advised Mr. Radwanski of additional resources from which Mr. Radwanski could select a lawyer of his choosing if he did not already have someone in mind.
3.1.5: Summary of the Defence Position
23Given the above breaches, Mr. Radwanski submits that I should exclude the breath readings. In the absence of admissible evidence of his blood-alcohol concentration, the charge should be dismissed.
3.2: Position of the Crown
24In response, the Crown submits there have been no Charter violations. The failure to take breath samples as soon as practicable cannot give rise to Charter relief. In any event, the samples were taken as soon as practicable. Furthermore, imperfect recitation of the rights to counsel is not required – so long as the detainee understands their right and the means of exercising it. The right to counsel could not be exercised in the back of the cruiser due to a lack of privacy. Even if there were a Charter violation, the breath samples should not be excluded.
4.0: ANALYSIS
4.1: Section 8 and As Soon as Practicable
25As I will explain, I conclude that the lawfulness of the collection of breath samples does not require the samples to be taken as soon as practicable.
4.1.1: Pre-2018 Criminal Code Sections and Interpretation
26Prior to 2018, the relevant wording of the breath demand section read:
254(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person
(a) to provide, as soon as practicable,
(i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in that person’s blood…
27There are two instances of the phrase “as soon as practicable” in that section. The first relates to the timing of the officer’s demand after the formation of their grounds. The second relates to the timing of the provision of the breath samples. When I discuss “as soon as practicable” in this decision, I am referring to the second instance.
28Mr. Radwanski’s argument relies on the trial-level decision of R. v. Nascimento-Pires, 2016 ONCJ 143. In that case, the trial judge concluded that the statute required breath samples to be obtained as soon as practicable as a precondition for the lawful collection of those samples. If breath samples were not collected as soon as practicable, s. 254(3) did not apply and the samples were collected without lawful authority, contrary to the accused’s right against unreasonable search and seizure protected by Section 8 of the Charter.
29This issue was squarely before the Summary Conviction Appeal court in R. v. Mawad, 2016 ONSC 7589. In that case, Justice Andre interpreted the meaning and purpose of “as soon as practicable” in the breath demand section in conjunction with the identical phrase in section 258(1)(c). Section 258(1)(c) permitted the court to presume that the blood-alcohol concentration at the time of testing was identical to the blood-alcohol concentration at the time of driving, so long as several preconditions were met – one of which was that the samples were taken as soon as practicable. This was known as the ‘presumption of identity.’
30Justice Andre concluded that the lawfulness of a s. 254(3) demand did not require the samples to be taken “as soon as practicable.” At para. 26, he stated: “… I fail to see how a statutory shortcut given to the Crown to prove a charge of ‘Over 80’ against an accused can be elevated to a violation of his or her constitutional rights.” This statement relied on obiter from cases where the court considered different legal issues. Mawad might be criticized for not clearly differentiating between the “as soon as practicable” requirements in two sections: the breath demand section and the presumption of identity section.
31This issue was also considered by Justice Wright in the Summary Conviction Appeal decision of R. v. Green, 2017 ONSC 119. She concluded that an accused need not be presented to a breath technician “as soon as practicable” for the demand to be lawful. Like Justice Andre, Justice Wright also read the second “as soon as practicable” in s. 254(3) in conjunction with the presumption of identity in s. 258(1)(c). The reason the demand section requires a suspect to provide samples as soon as practicable is to facilitate the application of the presumption of identity. In cases where the presumption of identity is irrelevant, such as refusing to provide a breath sample, the second instance of “as soon as practicable” is also irrelevant.
4.1.2: 2018 Amendments
32The statutory landscape changed dramatically in 2018, when Parliament overhauled the drinking and driving provisions in the Criminal Code.
33First, Parliament replaced the breath demand section in 254(3) with s. 320.28(1), which reads:
s. 320.28(1) If a peace officer has reasonable grounds to believe that a 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 s. 320.14(1)(b), the peace officer may, by demand made as soon as practicable,
(a) require the person to provide, as soon as practicable,
(i) the samples of breath that, in a qualified technician’s opinion, are necessary to enable a proper analysis to be made by means of an approved instrument…
This new breath demand section retained the wording that the suspected impaired driver is required to provide a sample “as soon as practicable”.
34Second, the elements of the ‘excess blood alcohol’ offence changed. Previously it was an offence to be driving with a blood alcohol concentration in excess of 80 milligrams of alcohol in 100 millilitres of blood. The current offence under s. 320.14(1)(b) prohibits having excess blood alcohol within two hours of ceasing to operate a motor vehicle. The relevant issue now is what the person’s BAC is at the time of testing, not the time of driving. Accordingly, the presumption of identity was no longer required to relate the breath test results back to the time of driving.
35Third, because of the above change, the presumption of identity section was eliminated as unnecessary. It was replaced with section 320.31(1), which states that breath samples received into an approved instrument are conclusive proof of a person’s BAC if specific statutory prerequisites are made out. Like the former s. 258(1)(c), this is an evidentiary shortcut the Crown could rely on at trial, not a section that authorizes police to conduct warrantless searches of breath samples. Notably, there is no requirement for those samples to be taken ‘as soon as practicable.’
4.1.3: Post-2018 Case Law
36Both Mawad and Green connected the requirement in s. 254(3) that samples be provided as soon as practicable to the presumption of identity. The elimination of the presumption of identity could be said to change the proper interpretation of “as soon as practicable” in s. 320.28. After all, if “as soon as practicable” in the breath demand section was only relevant to the presumption of identity, why would Parliament keep that wording in place after removing that presumption? It must be there for a different reason. In any event, the logic underpinning Mawad and Green could no longer apply to the new provisions.
37That is Mr. Radwanski’s argument. Parliament retained “as soon as practicable” in the breath demand section to minimize the extent to which a suspected impaired driver’s freedom is curtailed while obtaining breath samples. Just like a search warrant often contains limiting clauses to minimize an intrusion on a subject’s privacy to only the extent necessary to further the police’s legitimate investigation, so too does s. 320.28 require the police to move expeditiously when collecting samples of a person’s breath, at which point the person could be released. Just like cases where the violation of a search warrant’s limiting clause could render a search unlawful, failing to collect samples as soon as practicable renders a demand unlawful.
38This argument initially had some success at the trial level. At least a half-dozen judges of the Ontario Court of Justice agreed with it: see R. v. Koralov, 2022 ONCJ 582; R. v. Najev, 2021 ONCJ 427; R. v. Tubic, [2021] O.J. No. 4954; R. v. Araya, 2019 ONCJ 970; R. v. Navaratnarajah, [2020] O.J. No. 6075; and R. v. Pillar, 2020 ONCJ 394.
39Despite this initial success, this argument was unsuccessful at the appellate level. In R. v. Ridley, 2023 ONSC 5967, the issue of whether a lawful demand requires samples to be obtained as soon as practicable was directly before Justice Akhtar. His Honour found there to be no Charter protected right to have breath samples taken as soon as practicable.
40Justice Akhtar found Mawad and Green to be appellate authority that still bound the Ontario Court of Justice, despite the differences in the pre- and post-2018 statutes, as did a post-2018 decision of R. v. Thompson, 2022 ONSC 2056. All those cases clearly set out that there was no Charter-protected right to have breath samples taken as soon as practicable.
41Furthermore, he did not view removing the presumption of identity as capable of silently imbuing components of the breath demand section with a different legal meaning. Nor did he believe Parliament, in enacting amendments to simplify proof of these types of cases, intended to make it harder. For those reasons, the Summary Conviction Appeal court found that Koralov, Najev, Tubic, and other such cases were wrongly decided.
42The issue was again squarely before the Summary Conviction Appeal court in R. v. Ridge, 2024 ONSC 2231. In that decision, Justice de Sa agreed with the decision in Ridley. He added that if Parliament wanted to place the onus on the police to collect the samples as soon as practicable, they could have included explicit language to that effect.
43There are now two Summary Conviction Appeal decisions that hold that a lawful breath demand does not require the police to take samples as soon as practicable. To my knowledge, there are no appellate decisions to the contrary. I am obliged to follow these binding decisions. Unless and until the Ontario Court of Appeal or Supreme Court say otherwise, I consider this legal issue settled. On that basis alone, I am required to reject Mr. Radwanski’s “as soon as practicable” argument.
4.1.4: The Proper Interpretation of “As Soon as Practicable
44However, even if I were bound by those decisions, I still consider them to be a correct interpretation of the law. “As soon as practicable” is not intended to apply to the timeliness of the collection of breath samples by the police. This is for several reasons.
45First, the choice of words and grammatical structure of the section makes it clear that the “as soon as practicable” component applies to the arrested person, and not to the police. The police are the subject of the sentence, whereas the person to whom they make the demand is the object. The structure of the sentence “…require the person to provide, as soon as practicable…” makes clear that ‘as soon as practicable’ applies to the object of the sentence (the person) rather than the subject (the police).
46Second, the use of the word “provide” is important. The section requires the person to provide a sample as soon as practicable – which is a verb that only the arrested person could fulfil. If Mr. Radwanski’s argument is correct, and the ‘as soon as practicable’ phrase applies to the police, I would have expected Parliament to use the word “take,” “collect,” or “obtain” - which are verbs that only the police could fulfil. I agree with Justice de Sa that if Parliament intended to require the police to obtain samples as soon as practicable for the demand to be lawful, they could have included explicit language to that effect.
47Third, this interpretation is consistent with the overall legislative scheme for the investigation of impaired driving. Where a police officer reasonably believes a person is driving while impaired or with excess blood alcohol, they can require that person to provide a breath sample. If the person fails or refuses to do so, that person can be charged and convicted of an offence under s. 320.15.
48If there were no temporal component of the breath demand placing an obligation on that person to provide a sample in a timely manner, any person charged with refusing to provide a breath sample could defeat the charge by saying that they had simply not provided a breath sample yet but had intended to do so at some point in the future. Such a defence would frustrate the entire legislative scheme. To paraphrase the words of Justice Fish when discussing a separate but related issue, drivers upon whom breath demands are made are bound to comply as soon as practicable – and not later, at a time of their choosing, when they have decided to stop refusing: R. v. Woods, 2005 SCC 42 at para. 45.
49Finally, I do not accept the principle that the underlying rationale of “as soon as practicable” in s. 320.28(1) is to expedite the investigation and release of suspected impaired drivers. While most suspected impaired drivers are released by the police after breath samples are collected, that is not always the case. The police may properly decide to hold a person for bail because they are a risk to public safety due to a lengthy criminal record for related offences or there exist legitimate concerns the person will not attend court.
50Interpreting “as soon as practicable” as constitutionally obliging the police to take samples without delay in order to expedite a person’s release would be incongruent with those situations. Should a person with no criminal record have a Charter right to have samples taken as soon as practicable, while a person with a lengthy record for impaired driving or failing to appear should not? If so, would such an interpretation create an incentive structure for the police to hold someone for bail to ensure the breath demand was lawful because samples were not taken as soon as practicable, thereby increasing the restriction of their liberty rather than minimizing it? Such an interpretation is obviously absurd.
51For these reasons, I conclude there is no Charter requirement for the breath samples to be taken as soon as practicable. The defence’s Section 8 Charter argument must fail.
4.2: Rights to Counsel – Informational Component
52Mr. Radwanski submits P.C. Beckers violated his right to counsel by not asking him whether he wished to speak to a lawyer after she read him his rights to counsel.
53P.C. Beckers testified during her examination-in-chief that she read Mr. Radwanski his rights to counsel from her service card, which she read into the record. She testified that she asked him if he wished to call a lawyer now, to which he nodded - indicating ‘yes.’
54In cross-examination, counsel confronted P.C. Beckers with a transcript of what she actually said to Mr. Radwanski, as recorded by her cruiser’s in-car camera. P.C. Beckers initially maintained that she did ask Mr. Radwanski if he wished to speak to a lawyer, but upon further cross-examination, she conceded the accuracy of the transcript and that she must not have read that last question to him.
55Counsel fairly continued to read the transcript to P.C. Beckers. Following the rights to counsel, the recording captures Mr. Radwanski asking P.C. Beckers if he can make a phone call right now. P.C. Beckers responds that she could not facilitate that now and that he had to wait until they arrived at the detachment. In her testimony, P.C. Beckers justified this statement by noting that she cannot facilitate a call to counsel within her cruiser because the in-car camera prevented a private call.
56Mr. Radwanski and P.C. Beckers arrived at the Burlington detachment at 4:09 p.m. She asked him whether he wanted to speak to a lawyer or duty counsel. Mr. Radwanski requested duty counsel. At 4:14 p.m., P.C. Beckers called the duty counsel number.
57At 4:26 p.m., counsel Ellen Williams called the detachment to speak to Mr. Radwanski. Ms. Williams is not duty counsel. She is private counsel with trial counsel’s firm. I am told that her services were obtained through the efforts of Mr. Radwanski’s mother. P.C. Beckers believed Ms. Williams to be duty counsel. Mr. Radwanski was placed in a privacy booth to speak to Ms. Williams at 4:29 p.m. The call was completed by 4:43 p.m., at which point he was transferred to the custody of P.C. Singh.
58P.C. Singh re-read Mr. Radwanski his rights to counsel. Mr. Radwanski indicated he spoke to duty counsel. He declined to speak to any other lawyer and expressed no dissatisfaction with his call to counsel.
4.2.1: Analysis
59Section 10(b) of the Charter places three obligations on the police when they arrest or detain someone:
Inform the detainee of their right to retain and instruct counsel without delay, and of the existence and availability of legal aid and duty counsel;
If a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise that right (except in urgent and dangerous circumstances); and,
Refrain from eliciting evidence from the detainee until they have had that reasonable opportunity (again, except in urgent and dangerous circumstances).
See R. v. Bartle, 1994 64 (SCC), [1994] S.C.J. No. 74, at para. 17.
60The final question in the standard police ‘Right to Counsel’ card is: “Do you wish to speak to a lawyer now?” Mr. Radwanski argues that asking this final question is an essential component of the police’s obligations pursuant to s. 10(b). After all, how could the police facilitate a call to counsel unless they first inquire whether a detainee wishes to speak to counsel? In support of his argument, he relies on the trial level decision of R. v. Diaz, 2024 ONCJ 407, in which Justice Bernstein found s. 10(b) was breached by the officer asking a detainee if they wished to speak to a lawyer “…when we get back to the station” rather than “Do you wish to call a lawyer now?”
61Binding appellate authority does not support the proposition that the police are required to read the final question: “Do you want to call a lawyer now?”. In the Summary Conviction Appeal decision of R. v. Antoninas, 2014 ONSC 4220, at paras. 76-81, Justice Durno found that this final question was not part of the mandatory informational component. In another Summary Conviction Appeal decision, R. v. Imer, 2023 ONSC 5700, at paras. 37-42, Justice Pinto arrived at the same conclusion. The standard wording of the ‘Rights to Counsel’ includes advising a detainee that they can retain and instruct counsel without delay and the option to speak to free legal aid duty counsel “now”. This is sufficient to fulfil the informational component.
62The Saskatchewan Court of Appeal came to the same conclusion in R. v. Knoblauch, 2018 SKCA 15. At paragraph 31, the Court explains that this final question may assist but may also impair a detainee’s ability to exercise their right to counsel. An arrested person may not have had time to process the fact of their arrest before they can make an informed decision. The responses provided immediately after arrest may be equivocal or vague. While potentially helpful, that final question is not mandatory for the police to fulfil their obligations under s. 10(b).
63The Manitoba Court of Appeal adopted Knoblauch on this specific issue in R. v. Tarapaski, 2022 MBCA 74, at para. 53. Neither the Saskatchewan nor Manitoba Courts of Appeal are binding on me, but I consider their rulings persuasive.
64With respect to the Diaz case relied on by the defence, Justice Bernstein found a s. 10(b) breach due to the officer not reading the exact words “Do you want to call a lawyer now”. He did not cite any case law in support of this finding. It appears neither counsel in that trial provided him with the binding or persuasive authorities noted above. My colleague did not grapple with them or explain how the facts of Diaz were distinguishable from those authorities. Accordingly, I find Diaz to be unhelpful in considering this issue.
65This same argument was made in R. v. Papadopoulos, [2006] O.J. No. 5405 (Ont. S.C.J.), a case in which the final “Do you wish to call a lawyer now?” question was not asked before the police interviewed a suspect. Justice Dawson found that s. 10(b) was not violated in that case. While the final question was not asked, the accused was advised that he could contact any lawyer he wished and that free legal advice was available “now” by means of a toll-free number. This fulfilled the informational component of the police’s s. 10(b) obligations.
66Mr. Radwanski’s case is similar to Papadopoulos. The wording on P.C. Beckers’ police-issued card reads as follows:
“I am arresting you for impaired operation BAC over 80. It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free legal advice from a legal aid lawyer. If you are charged with an offence, you may apply to the Ontario Legal Aid plan for assistance. 1-800-265-0451 is a number that will put you in contact with a legal aid duty counsel lawyer for free legal advice right now. Do you understand?”
67The reliability of P.C. Beckers’ evidence about her recitation of the rights to counsel was undermined by the clear contradiction between her testimony and the in-car camera recording regarding whether she read the final question: “Do you wish to call a lawyer now?” However, the recitation of the remainder of the police card was not challenged in cross-examination. Given that counsel had a transcript of the rights to counsel as they were read within the cruiser, I expect that any other errors or omissions in reading the rights to counsel would have been raised and put to her. They were not.
68P.C. Beckers was not challenged on other aspects of her recitation of rights to counsel when an accurate recording of those rights was available to counsel. Accordingly, I am satisfied that, as part of the recitation of rights to counsel, P.C. Beckers advised Mr. Radwanski that he could retain and instruct counsel without delay and that he could speak to a lawyer for free legal advice “right now.”
69Mr. Radwanski understood his right to counsel and was able to invoke it. This is evident from the fact that he asked P.C. Beckers whether he could make a phone call immediately after she finished reading the rights to counsel. P.C. Beckers provided Mr. Radwanski with sufficient information to permit him to invoke his right to counsel and he did so. P.C. Beckers did not violate Mr. Radwanski’s right to counsel by not specifically asking him whether he wished to call a lawyer.
4.3: Section 10(b) – Immediacy of Call to Counsel
70Mr. Radwanski argues P.C. Beckers further violated his right to counsel by failing to facilitate contact with counsel immediately at the roadside. Instead, P.C. Beckers delayed access to counsel for 1 hour and 25 minutes. Mr. Radwanski argues this delay was due to unnecessary and cascading decisions on her part: by not deactivating her in-car camera recording to facilitate a private call to counsel at the roadside, by requiring a male officer to attend to conduct a roadside frisk search before leaving the scene, and by not getting to the Burlington detachment promptly despite being able to use her emergency lights and siren or the HOV lane on the QEW.
71A summary of the relevant timeframe is as follows:
3:04 p.m. – P.C. Beckers arrests Mr. Radwanski.
3:08 p.m. – P.C. Beckers reads the rights to counsel.
3:09 p.m. – P.C. Beckers reads the standard police caution and breath demand.
At some point, either before or after rights to counsel, P.C. Beckers obtained some of Mr. Radwanski’s required personal items from his truck, such as his phone.
3:13 p.m. – A male officer, P.C. Persoon, arrives to conduct a pat-down search.
3:25 p.m. – The search is completed and P.C. Beckers departs the roadside to transport Mr. Radwanski to the Burlington OPP detachment.
4:09 p.m. – P.C. Beckers and Mr. Radwanski arrive at the detachment. Mr. Radwanski is re-searched by a male officer, handcuffs are removed, and he is placed in the cell area. P.C. Beckers asks him if he would like duty counsel or if he had his own lawyer. Mr. Radwanski requests to speak to duty counsel.
4:14 p.m. – P.C. Beckers calls duty counsel and leaves a message for them to call back.
4:26 p.m. – Private counsel Ms. Williams calls the detachment to speak to Mr. Radwanski. P.C. Beckers believed this was duty counsel.
4:29 p.m. – Mr. Radwanski is placed in a privacy booth to speak to Ms. Williams.
72Where a detained person asks to speak to counsel, the arresting officer is under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonable available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances. Whether a delay in facilitating access to counsel is reasonable is a factual inquiry: see R. v. Taylor, 2014 SCC 50, at para. 24; R. v. Brunelle, 2024 SCC 3, at para. 83.
73Until the requested access is provided, there is an obligation on the police to refrain from taking further investigative steps to elicit evidence: see Taylor, supra, at para. 26; R. v. Ross, 1989 134 (SCC), [1989] S.C.J. No. 2, at paras. 16-20.
74In R. v. Wu, 2017 ONSC 1003, at para. 78, Justice Di Luca summarized general categories in which delays of rights to counsel may be justified. These include cases where there are particularized safety concerns for the police; and cases where there exist practical impediments, such as a lack of privacy at the location of arrest.
75I find that most, but not all, of the delay in providing access to counsel this case was reasonable.
4.3.1: Delay Between Arrest and Reading Rights to Counsel
76First, the four-minute delay between arrest and reading rights to counsel. During this time, P.C. Beckers secured Mr. Radwanski in her cruiser. While in the cruiser, Mr. Radwanski was emotional and upset. He asked to speak to his mother. P.C. Beckers spoke to Mr. Radwanski about these issues. P.C. Beckers requested a male officer attend the scene to conduct a pat-down search of Mr. Radwanski. She called for a tow truck and requested that a breath technician attend the detachment to conduct the breath tests.
77Upon arrest, the police must read a detainee their rights to counsel without delay. In this context, “without delay” means “immediately”: R. v. Suberu, 2009 SCC 33, at paras. 39-42.
78That said, in other cases, four-to-six-minute delays between an impaired arrest and reading rights to counsel have been found to be reasonable, and did not violate the immediacy requirement of s. 10(b). Those delays resulted from the same factors as in this case: arresting the accused and placing them in the cruiser, arranging for a tow truck, and arranging for a breath technician: see R. v. Agnihotri, 2019 ONCJ 551, at para. 9; R. v. Fisk, 2020 ONCJ 88, at para. 51; R. v. Braich, 2022 ONCJ 81, at paras. 17-29; R. v. Singh, 2025 ONCJ 276, at para. 113. A three-minute delay to call for a same-sex officer to conduct a search, calling for a tow truck, and arranging for a breath technician was upheld on appeal as reasonable in R. v. Lep’okhina, 2023 ONSC 2850.
79I recognize that the reasonableness of delays in providing rights to counsel must be assessed on the facts of an individual case. The above cases were decided on their own unique factual matrix and are not binding on me. However, they are helpful in assessing what is and is not objectively reasonable.
80I find the four-minute delay between arrest and rights to counsel was reasonable, and did not undermine the immediacy component of rights to counsel. The arrest and securing of Mr. Radwanski into the cruiser were necessary first steps in the arrest process. The three calls for a male officer, a qualified breath technician, and a tow truck were brief and also necessary to move the process forward. Mr. Radwanski was upset during his arrest. In those circumstances, it makes sense for P.C. Beckers to address his upset before reading rights to counsel, to ensure he understood his rights and could respond appropriately.
4.3.2: Delay for Same Gender Officer to Conduct a Pat Down Search
81Mr. Radwanski challenges the decision for P.C. Beckers to call for a same-gender officer to conduct the pat down search. In doing so, he does not challenge the decision of P.C. Beckers to conduct a pat down search before leaving the scene. This is appropriate. In the context of a lawful arrest, these searches are reasonable to ensure an arrested party has no weapons that might endanger the officer, and to ensure the arrested party has nothing that might facilitate their escape from police custody: see Cloutier v. Langlois, 1990 122 (SCC), [1990] S.C.J. No. 10.
82P.C. Beckers testified that OPP policy is that pat-down searches of arrested persons should be conducted by officers of the same gender. That said, P.C. Beckers recognized that if there was no male officer readily available, she would conduct the pat down search herself. She does not remember specifically what P.C. Persoon told her when she radioed for a male officer, including how far away he was or how long it would take for him to arrive on scene. As it turned out, P.C. Persoon arrived four minutes after the breath demand was completed.
83I find that it was reasonable for P.C. Beckers to remain at the scene for an additional four minutes to allow for a male officer to conduct the pat down search.
84Any physical search by an officer, including a pat-down search, infringes on a person’s bodily integrity. Such searches may cause personal, emotional, or psychological discomfort to the detainee. This discomfort may be exacerbated if the search is conducted by an officer of the opposite gender. Women and vulnerable minorities may have a particular fear of abusive conduct by the police in the context of these searches.
85Steps taken to mitigate the psychological impact of a pat down search, including by having an officer of the same gender conduct that search, are reasonable. In the context of highly invasive strip searches, the law already recognizes the ameliorating effect of having the search conducted by an officer of the same gender: see R. v. Golden, 2001 SCC 83, at para. 101. I see no reason why, where it can be reasonably facilitated, the police should not try to arrange for an officer of the same gender to conduct a pat-down search.
86To be clear, I am not finding that the police must always arrange for a same-gender officer to conduct a pat-down search. Nor am I finding that all delays in facilitating a phone call to counsel, regardless of length, may be justified for this reason. If making such arrangements led to excessive and undue delay, such delays may not be reasonable. P.C. Beckers recognized this as well. If the delay required to have a male officer attend was excessive, she would have conducted the search herself.
87The question I must answer is whether an additional four-minute delay in facilitating access to counsel to allow for a same-gendered officer to conduct the pat down search was reasonable. Balancing the need to mitigate the psychological impact on Mr. Radwanski by having a same-gender officer conduct the pat down search against the need to expedite facilitating his contact with counsel, I find that an additional four-minute delay was reasonable.
4.3.3: Post-Search Delay
88P.C. Persoon arrived at the roadside at 3:13 p.m. P.C. Beckers testified the pat down search would not take long and was likely less than 60 seconds. She left the roadside with Mr. Radwanski at 3:25 p.m. P.C. Beckers could not recall, and therefore cannot account for, what took place during the balance of the 12-minute period, aside from the brief pat down search.
89As I outlined above, where an arrested person wishes to speak to counsel, the police are obliged to facilitate that call at the first reasonable available opportunity. Where there is a delay in calling counsel, the burden is on the Crown to demonstrate the delay was reasonable.
90I have no explanation for the additional delay at the roadside. In the absence of any explanation from P.C. Beckers, the Crown is unable to demonstrate the delay was reasonable. I find this period of approximately 11 to 12 minutes violated Mr. Radwanski’s right to speak to counsel at the first reasonable opportunity.
4.3.4: Turning Off the In-Car Camera to Facilitate a Call to Counsel
91Mr. Radwanski submits that P.C. Beckers could have facilitated a private call to counsel at the roadside by turning off her in-car camera. I do not accept this argument.
92It was suggested to P.C. Beckers that Mr. Radwanski could have used his phone while waiting at the roadside to call his mother. She disagreed, citing the lack of privacy in the cruiser due to the in-car camera. OPP policy is that officers must not turn off the ICC while a detainee is in the cruiser. This is for the safety of the person and of the officer. While not explicitly clear, P.C. Beckers seemed to concede that it was mechanically possible to turn off the ICC – but she would never do this as it is unsafe.
93Some trial judges have found that it is reasonable to turn off the in-car camera to facilitate a private conversation in the cruiser: see Koralov, supra at para. 44. Others have found doing so to be perilous. For example, in R. v. Alenich, 2022 ONCJ 161, at para. 15, Justice Prutschi stated as follows:
”… I can easily foresee the reasonable constitutional attack Mr. Alenich might have launched had critical evidence of the roadside procedure been lost due to a decision by P.C. Dennys to deactivate the ICC. The continued use of the ICC at all times when a detainee is in police custody protects the safety of both the detainee and the officer as well as ensuring the integrity of the administration of justice. There is no Charter breach by the officer insisting that a person detained at the roadside in the back of a police cruiser only contact counsel once back at the detachment where privacy can be assured in a safe and secure environment.”
94In R. v. Singh, 2022 ONCJ 239, at para. 90, Justice Henschel stated:
“… it would be inadvisable to suggest that officers should stop recording a person in custody in handcuffs in the rear of the police cruiser for any period. It would leave the officers in a precarious position should an accused person later allege police misconduct at the roadside.”
95I agree with both these statements. See also Justice Perlin’s comments in R. v. Munro, 2025 ONCJ 519, at para. 39.
96Where available, in-car camera recordings should never be deactivated while an arrested person is in custody. The recording equipment protects the officer against unwarranted allegations of police misconduct. The recording protects the accused by deterring police misconduct or abuse – lest the police create a record of their conduct. It focuses and shortens trials by creating a reliable and incontrovertible record of the interactions between the police and an arrested party.
97I note that counsel was able to impeach P.C. Beckers’ reliability and advance a Section 10(b) Charter argument because of the availability of the in-car camera recording. To that extent, the ICC served its intended purpose. The value of this type of evidence is apparent.
98I find that it was reasonable and appropriate for P.C. Beckers to refuse to turn off the in-car camera to facilitate a private call to counsel while waiting at the roadside. Accordingly, the lack of privacy within the cruiser justified delaying the call to counsel until they were back at the detachment.
4.3.5: The Drive to the Burlington Detachment
99Finally, Mr. Radwanski challenges the delay occasioned by the drive to the Burlington detachment. Had the officer departed from the roadside earlier, she likely would not have been hampered by rush-hour traffic. Furthermore, she could have availed herself of the HOV lane or her cruiser’s emergency equipment to expedite the trip.
100The trip to the Burlington detachment took 44 minutes. P.C. Beckers travelled directly to the detachment from the location of the stop. This is corroborated by her notes of the cruiser’s mileage at the beginning and end of the trip – showing a 21-kilometre trip, which counsel verified was the correct distance based on Google Maps. Traffic becomes heavy for rush hour as early as 2:30 p.m. She cannot remember whether she used the HOV lane. She would not use her cruiser’s emergency lights because there was no emergency.
101Some may argue that taking 44 minutes to travel 21 kilometres west along the QEW from Dorval Drive in Oakville is unreasonable. The unfortunate reality is that this level of traffic at this time of day is not uncommon, even on a Sunday in June. This is so, even if a driver takes the HOV lane. I say this as a long-suffering resident of Halton Region.
102Furthermore, it would be unreasonable and inappropriate for the officer to use her emergency equipment to expedite the trip. The use of police emergency lights and siren should be reserved for true emergencies. To impose a requirement for the officer to use her emergency equipment to expedite the trip to the detachment would elevate the police obligation to facilitate access to counsel from “the first reasonable opportunity” to “as soon as possible.” This is not the law.
103P.C. Beckers took the most expedient and direct route from the roadside to the detachment. The trip took as long as it took. There were no unreasonable delays in this trip.
4.3.6: Conclusion re: Delay in Implementing Access to a Lawyer
104Upon arriving at the detachment, shortly after bringing Mr. Radwanski into the booking area, P.C. Beckers asked Mr. Radwanski whether he wanted private counsel or duty counsel. She placed a phone call to duty counsel at Mr. Radwanski’s request. At that point, the police were at a standstill until counsel for Mr. Radwanski called the detachment to speak to him. The procedure at the detachment was followed expeditiously and reasonably.
105Except for an unexplained 11-to-12-minute delay at the roadside, all other delays in facilitating Mr. Radwanski’s right to counsel were reasonable.
4.4: Section 10(b) – Counsel of Choice
106Finally, Mr. Radwanski submits P.C. Beckers violated his right to counsel by providing him with a false binary choice: to call his own lawyer or duty counsel. P.C. Beckers’ testimony is unclear as to specifically what Mr. Radwanski said in response – simply that he ‘indicated’ duty counsel. It is submitted he might have said words to the effect of “I do not have a lawyer so I guess I will take duty counsel”, which deprived him of the opportunity to select his own private counsel from a book of lawyer names.
107In support of the above argument, Mr. Radwanski relies on the Summary Conviction Appeal decision of R. v. Ruscica, 2019 ONSC 2442. In Ruscica, the accused failed an ASD demand and was arrested. After being read his rights to counsel, Mr. Ruscica said he did not have a specific lawyer and wished to call duty counsel. At trial, the officers could not recall the details of how he requested duty counsel and could not recall whether any officer explored contacting a private lawyer. Counsel in that case suggested the officers narrowed Mr. Ruscica’s decision to two choices: speaking to a lawyer he already had or duty counsel. The trial judge found the right to counsel of choice did not require the police to suggest the means by which he might find a private counsel whom he did not already have in mind.
108The same argument was advanced on appeal, supported by several Ontario Court of Justice decisions which held the police should do more to advise a detainee about sources of information which they might access to decide to contact counsel. The appellate court agreed that there may be cases in which the actions of an accused will oblige the police to provide access to resources, such as when a detainee requests to speak to a specific counsel but does not have counsel’s phone number. However, where a detainee simply tells the police that he has no specific lawyer and agrees when asked if they wish to speak to duty counsel, the s. 10(b) rights of the detainee have been met: see Ruscica, ibid at paras. 38, 44 and 46.
109Mr. Ruscica sought leave to appeal this decision to the Ontario Court of Appeal. The Court of Appeal declined to grant leave. In her short endorsement dismissing the leave application, Justice van Rensburg stated:
While the s. 10(b) issue is framed to raise an issue of importance to the administration of justice, it is not an arguable issue on the evidentiary record in this case, where the applicant was told and understood he could contact any lawyer he wished and where he accepted the offer of duty counsel after confirming that he did not have any specific lawyer and where there was no evidence about his confusion about his rights or advice to contact private counsel.1
110I find the facts of this case to be akin to Ruscica. Mr. Radwanski was told he could contact any lawyer he wished. The recitation of his rights to counsel was clear. He did not ask to speak to any specific private counsel and opted for duty counsel when asked. He spoke to counsel and expressed no dissatisfaction with his call. He did not testify on this application, and I have no evidence that suggests he was confused or unclear about his rights. In these circumstances, the police had no legal obligation to do anything further. There was no violation of Mr. Radwanski’s right to counsel of choice.
4.5: Section 24(2) – Exclusion of Evidence
111Having found a violation of Mr. Radwanski’s right to speak to counsel at the first reasonable opportunity, I must consider whether the breath samples should be excluded pursuant to Section 24(2) of the Charter.
112The 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.
113Pursuant 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.
114The 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
115There are two aspects to the seriousness of the Charter-infringing conduct here. The first is the length of unexplained delay in facilitating access to counsel: 11 to 12 minutes. In the context of the overall investigation, this is a relatively short period of time, during which the officer complied with her obligation to hold off questioning Mr. Radwanski. Standing alone, this aspect is not particularly serious.
116The second aspect is the fact that P.C. Beckers could not account for what happened during that time. She has no recollection of why they were waiting. Given that she was permitted to refresh her memory from her notes while testifying, I infer that she has no notes detailing why she waited at the scene. I consider this issue more serious.
117The lack of notes about this aspect of the investigation is troubling. The police have an obligation to explain any delays in facilitating access to counsel. While there is no legal requirement for the police to always make contemporaneous notes, they are generally desirable. In some situations, they are mandatory – such as warrantless cell phone searches and strip searches. They assist officers in justifying their actions, thereby facilitating judicial review of the lawfulness of their actions: see R. v. Beaver, 2022 SCC 54, at para. 54; R. v. Fearon, 2014 SCC 77, at para. 82.
118If P.C. Beckers had a contemporaneous note regarding this issue, she could have explained the reason for the delay, as is her legal obligation. I may or may not have accepted it as reasonable. Even if I found the delay to be unreasonable, I would still be in a better position to assess the seriousness of the s. 10(b) violation. As it stands, I have nothing to consider aside from an unexplained period of additional delay.
119In future cases, P.C. Beckers should redouble her efforts to take detailed and contemporaneous notes about the progression of her investigations. From her McNeil history, she is aware of the professional consequences of failing to complete her notes. She made a significant error in her notes regarding whether she asked Mr. Radwanski if he would like to speak to a lawyer and his response. She believed private counsel, Ms. Williams, was duty counsel. In the context of this investigation, the absence of a note about the reasons for the additional roadside delay is one more example of careless notetaking.
120The breach is the failure to account for an 11-to-12-minute delay in facilitating rights to counsel. While the delay itself is not overly serious and the breach was not intentional, it is the result of the officer’s carelessness regarding well-known police duties. In my view, this factor pulls moderately towards exclusion.
4.5.2: The Impact of the Breach on the Charter-Protected Interests
121Any person detained by the police is entitled to speak to counsel if they so choose at the first reasonable opportunity. As Justice Doherty stated 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.
122In this case, there is an unexplained 11-to-12-minute delay in facilitating access to counsel. This is not like the situation in Rover, in which the accused was held in a police cell for several hours without any explanation for why he could not speak to counsel or when he might be able to. Mr. Radwanski knew he would speak to counsel once they arrive at the detachment. He knew the delay was because the officer could not facilitate a call in the cruiser.
123While waiting, P.C. Beckers abided by her duty to hold off any attempts to elicit evidence from Mr. Radwanski during this time. There is no causal connection between this breach and the taking of the breath samples, though I recognize that there is a temporal and contextual connection between the two.
124In my view, the additional 11-to-12-minute unexplained delay in facilitating rights to counsel only weakly favours exclusion, if at all. I arrive at this conclusion based on the lack of a causal connection between the breach and the evidence, the relatively short additional delay of 11 to 12 minutes in the overall length of the investigation, the absence of any elicitation of evidence during this time, and the fact that Mr. Radwanski knew he would get to speak to counsel once they arrived at the detachment.
4.5.3: Society’s Interest in an Adjudication on the Merits
125The 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: 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.
126There are three factors that strongly favour inclusion in this case.
127First, the breath samples sought to be excluded are crucial to the Crown’s case. If I were to exclude them, Mr. Radwanski would be acquitted.
128Second, the evidence is reliable. There is no challenge to the accuracy of the readings. This is not a case, such as a compelled or conscripted statement, where the evidence would not have been obtained but for the Charter violation. If P.C. Beckers had left the scene 11 minutes earlier, or at least been able to account for what took place during that period, the evidentiary record would be the same.
129Third, 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. Accordingly, society has a vital interest in combatting drinking and driving: see R. v. McColman, ibid, at para. 72; R. v. Bernshaw, 1995 150 (SCC), [1994] S.C.J. No. 87, at para. 16.
130This factor strongly favours inclusion of the breath samples.
4.5.4: Balancing the Grant Factors
131When balancing the Grant factors, the first two factors pull towards exclusion, but not strongly. The third factor pulls strongly in favour of inclusion. In my view, the third factor outweighs the first two factors. I am not satisfied that the admission of this evidence would bring the administration of justice into disrepute.
5.0: CONCLUSION
132The application to exclude the samples of Mr. Radwanski’s breath is dismissed. I find Mr. Radwanski guilty.
Released: January 27, 2026
Signed: Justice Peter R. Maund
Footnotes
- This endorsement is not reported but is reproduced in full in R. v. Beals, 2020 ONSC 996, at para. 78.