Court File and Parties

Ontario Court of Justice

Date: January 18, 2018

Court File No.: Kitchener Info # 17-2545

Between:

Her Majesty the Queen

— and —

Cassandra Chappell

Before: Justice Scott Latimer

Heard on: January 10, 2018

Reasons for Decision released on: January 18, 2018

Counsel

Ashley Warne — counsel for the Crown

Peter Speyer — counsel for the defendant

Decision

LATIMER J.:

I. Introduction

[1] Cassandra Chappell is charged with driving a motor vehicle on March 17, 2017, when her blood alcohol concentration exceeded eighty milligrams of alcohol in 100 millilitres of blood. Upon arrest, she was compelled to provide breath samples at an O.P.P. station that registered readings in excess of the legal limit. She has filed a Charter application seeking to exclude those samples, on the basis of an alleged violation of section 10(b) of the Charter. This matter has proceeded as a blended trial/voir dire. I heard argument at the close of the evidence where it was acknowledged by Mr. Speyer that, if the application for exclusion fails, the defendant is otherwise guilty of the offence charged. What follows are my reasons on the Charter application.

[2] The applicant was stopped during a St. Patrick's Day R.I.D.E. program in Kitchener. Her vehicle was detained and she subsequently failed a roadside screening test. She was arrested and advised of her legal rights by an officer reading off a pre-printed form that included common legal directions, like breath demands and rights to counsel. She declined her right to speak to a lawyer. She was subsequently brought back to a police station, where another officer directed that duty counsel be contacted. The applicant had a brief consultation with duty counsel before providing breath samples to a qualified breath technician. The sample results led to her being charged with the offence before the court.

[3] Section 10(b) of the Charter provides that "everyone has the right on arrest or detention… to retain and instruct counsel without delay and to be informed of that right". The applicant claims a violation in this regard in the circumstances of her case. Notwithstanding the fact that the proper wording of the rights to counsel was utilized by the officer at the roadside, it was provided to her in circumstances where she was being deluged with information that was both relevant and irrelevant. Given her emotional state and lack of any prior contact with the police, it is argued that the officer did not effectively communicate the informational component of the 10(b) right to this particular detainee.

[4] Further, the events that transpired later at the police station did not cure this informational deficit, nor did speaking to duty counsel ward off a section 10(b) constitutional violation. Had the applicant properly been informed of her rights, she would have contacted a family friend in aid of speaking to a recommended lawyer. She argues that her breath readings should be excluded because the s. 10(b) violation robbed her of the right to speak to a lawyer of her own choosing, a sacrosanct right in the criminal justice system. In all of the circumstances, including the absence of any bad driving and the relatively low readings provided, it is argued that she has satisfied her onus under section 24(2) of the Charter for exclusion of the evidence.

II. Facts

A. The police evidence

[5] The O.P.P. had set up a R.I.D.E. program on a ramp adjoining Sportsworld Drive and Highway 8 in Kitchener in order to identify potential impaired motorists. At 10:10 p.m., the applicant's 2017 Lexus SUV approached the checkpoint and was stopped by Police Constable Ryan Ball. Ball spoke to her and advised that he was checking for impaired drivers. After a short conversation, Ms. Chappell was asked to pull her vehicle over to the side of the road for further investigation. An approved screening device demand was read at 10:15 p.m., and a 'fail' reading ultimately resulted. She was subsequently arrested for the 'Over 80' criminal offence.

[6] Officer Ball testified that the applicant demonstrated "quite a bit of confusion" while in the back of the cruiser during the ASD test process. While she did understand the ASD demand, it was the officer's view that this was "the first time anything like this had ever happened to her", and he wanted to be sure she understood what was happening and what the process involved.

[7] Immediately following the arrest, the officer advised:

I am arresting you (or detaining you) for Over 80, it is my duty to inform you have the right to retain and instruct counsel without delay, you also have right to telephone any lawyer you wish, you also have the right for free legal advice from a legal aid lawyer, if you are charged with an offence you may apply to Legal Aid Plan for assistance, 1-800-265-0451 is a number that will put you in contact with legal aid duty counsel lawyer for free legal advice right now.

Following this recitation, Ball asked the applicant if she understood, and she said "yes". He then asked her if she wanted a lawyer. She said "No". He then proceeded to read her a breath demand and caution. The applicant began to cry during this process.

[8] In court, Ball was asked to read the demand he made of the applicant following her arrest and the rights to counsel. He proceeded to read an approved screening device demand. Upon further questioning, he indicated that he had made a mistake, and that post-arrest he had actually read the proper breath demand, relating to an approved instrument and testing that was to occur back at the police station.

[9] Ball also read Ms. Chappell both the primary and secondary caution. When asked why he read a secondary caution, which relates to contact with other officers, the officer answered, essentially, that he always does so, just in case contact with another officer occurs, or had occurred without him knowing.

[10] On the drive to the police station, Ball explained that another series of tests would occur to determine how much alcohol was in her system, and that a female officer would be conducting a personal search. There was no further discussion regarding her right to contact a lawyer. The applicant continued to cry as they drove to the police station. In Ball's mind, she had "a clear understanding" of the rights to counsel and availability of duty counsel.

[11] Upon arrival at the police station, the applicant's custody was transferred to a female officer, Sgt. Karen Marquis, for a physical search to occur. Officer Ball was not in the room at the time, but did recall Marquis opening the door afterwards to advise him to contact duty counsel because the applicant "wasn't sure". Ball contacted the duty counsel number, and shortly thereafter provided the applicant a telephone to speak to duty counsel. The consultation occurred while the applicant was detained in a cell inside the detachment.

[12] Sergeant Marquis testified that, during her time with the applicant, she seemed "upset… very nervous". Marquis is commonly involved in searching individuals when they are brought into the station. She testified that her general practice was to discuss the breath testing procedure and its potential consequences. Marquis recalled the applicant "being nervous and unsure of what she should do with regards to duty counsel or a lawyer". Marquis then advised Ball it would be "prudent" to have duty counsel contacted. She didn't recall with any more detail what the applicant said, nor did she have any notes of what the applicant said during her contact with her. The room that the two women were in, while equipped with recording equipment for other purposes, was not recording during this particular interaction. Marquis testified that she often comes in contact with arrestees who are unsure about what to do regarding legal advice – that is, whether to obtain any – and she often has duty counsel contacted as a precaution. That is what she said happened here. Marquis further testified that, if the applicant had expressed a desire to speak to a particular lawyer, such consultation would have been facilitated.

[13] Officer Ball's evidence was that he believed the right to counsel issue had been settled at the roadside, with the applicant declining the opportunity to contact counsel. He did not speak to her about a lawyer any further; he only contacted duty counsel on the instruction of Sgt. Marquis. The applicant did not ask to speak to any other lawyer after completing her telephone call with duty counsel. At 11:03 p.m., Ball left the applicant in the custody of Police Constable Vince, the breath technician. Later, she was detained in the cells until 12:45 a.m., when she was released from custody. Ball described the applicant, throughout his encounter with her, as "very polite, easy to deal with, other than being upset, which is understandable".

[14] Ball indicated that, because he could tell it was the applicant's first time being arrested, he "wanted to make sure she knew exactly what was happening". He did acknowledge, however, that he read the rights to counsel "fairly quickly" while at the roadside. He also stated that if an individual expressly asked that a third party be contacted, in aid of locating a particular lawyer, he would assist in calling such a person. He could also provide an arrestee with a lawyer's directory, or a tablet device for searching the internet.

[15] Police Constable John Vince obtained two suitable breath samples from the applicant, registering readings of 106 and 92 milligrams of alcohol in 100 millilitres of blood, respectively. He testified that he did not read Ms. Chappell her rights to counsel, as he understood that to have already occurred, and that she had just spoken with duty counsel. During their initial contact, Vince sought to confirm that the applicant had just spoken with duty counsel. She responded, "if that was a lawyer on the phone, legal counsel". Vince asked her if she was concerned if duty counsel was a lawyer, and she shook her head "no". A caution and breath demand followed, which Chappell indicated she understood.

[16] After the first breath test was completed, Vince began asking investigative questions, such as when she was drinking and how much alcohol she had consumed. The applicant responded, "my lawyer said not to answer questions".

B. The applicant's evidence

[17] Cassandra Chappell testified that, after her arrest at the roadside, Officer Ball began reading several things to her off of a card in his book. She was seated in the back of the cruiser, in handcuffs. Ball read the information rather quickly, and his information contained a bunch of clauses and things she was unfamiliar with. She was very emotionally upset at the time. When she was brought to the station and came into contact with Sergeant Marquis, there was no discussion between them about a lawyer.

[18] Later, after she had been placed in the cells, she was surprised to be handed a telephone. She understood the person on the other end of the line to be duty counsel, although the officers had not told her this in advance. She had a very brief telephone conversation, as she had never spoken to this person before. She testified she had made no request to speak to duty counsel. She indicated that, had she known she could have contacted a lawyer of her own choosing, she would have contacted a man named Thomas Geret, who was her fiancée's sister's partner, who she subsequently learned would have put her into contact with Peter Speyer, her present lawyer.

[19] The applicant was cross-examined by Ms. Warne regarding her understanding of the information Officer Ball provided to her at the roadside. She acknowledged that she had been read what Ball advised in court he had read; i.e. the information on the pre-printed card (a copy of which is Exhibit #1). She agreed that she told Ball that she understood the information he provided, as she felt she "wasn't in a position to disagree or say I was unsure or unclear". She agreed she communicated her understanding by saying 'yes', and never sought any clarification, either at the roadside or back at the police station. She also understood that she could call a lawyer of her choice or speak to duty counsel.

[20] The applicant testified she was very upset, and "just being compliant and moving through the motions, and understanding, hearing his words". Despite being confused, the applicant did not express this confusion to Ball – she simply told him she understood.

[21] When asked why she did not tell Bell that she wanted to speak to a lawyer, but just did not know how to do so, Chappell responded that felt "flustered and upset and confused, and didn't know what to do in that moment, wouldn't have known who to call, or understand what essentially what duty counsel was". She agreed with Crown Counsel that she "simply said no". She was never told that she could call someone other than a lawyer, but neither did she ask if she could speak to someone for the purpose of having them contact a lawyer.

[22] Chappell did not ask any follow up questions regarding access to counsel, either to Ball or to Sergeant Marquis, whom she met at the police station. Chappell did not recall Marquis saying anything about legal counsel, nor did Chappell bring up the subject to Marquis. She did not recall any discussion of any kind with Marquis regarding legal counsel, nor did she recall Marquis telling Ball to contact duty counsel.

[23] When she received the phone in the holding cell, she assumed it was duty counsel on the line. She assumed so because of "the verbiage" earlier provided to her regarding her ability to contact duty counsel or a lawyer. She did not understand the difference between duty counsel and a lawyer, and she thought speaking on the phone was simply part of the process. The conversation that took place on the phone was very brief. She agreed she never sought clarification from the police regarding the difference between a lawyer and duty counsel. She further stated that she never understood that she had the ability to "call someone she trusted, like Thomas", or access a directory of lawyers. She also agreed, however, that she never sought clarification regarding who she could contact from any of the three police officers she encountered that evening.

C. Positions of the Parties

[24] Mr. Speyer's submissions, on behalf of the applicant, focused on the informational component of the section 10(b) obligation – that Officer Ball did not effectively communicate the right to counsel in the specific circumstance of this case, and that nothing Marquis or Vince did back at the station fixed the problem. The rights were read quickly to an emotional individual, sandwiched between other information like demands and cautions – including a secondary caution, which was likely unnecessary and would have just further confused the applicant.

[25] The Crown position was that the informational component was complied with and the applicant's complaints all flow out of her own failure to seek any clarification – or to say anything at all – regarding how she could access legal advice. Ms. Warne submitted that upon the applicant receiving sufficient information regarding her s. 10(b) right, it was her responsibility to exercise that right. In the circumstances, the police cannot be faulted for the applicant's failure to take any action to implement her legal rights.

III. The information component in section 10(b) of the Charter

[26] Access to legal counsel is a fundamental right in Canada. Following arrest, citizens are in legal jeopardy and a profoundly vulnerable situation. The constitutional right to counsel "is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination": see R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, 245 C.C.C. (3d) 112, at para. 40; R. v. Willier, infra, at para. 28.

[27] Justice Doherty, writing for the Court of Appeal in R. v. Devries, 2009 ONCA 477, 244 C.C.C. (3d) 354, summarized the scope and nature of the section 10(b) right in paragraphs 21-23:

Section 10(b) contains two distinct rights. First, it obligates the police to inform a detainee of his or her right to speak with a lawyer without delay. Second, it guarantees the right of a detainee to retain and instruct counsel. If a detainee chooses to exercise that right, the police must provide the detainee with a reasonable opportunity to do so and must refrain from questioning the detainee or otherwise eliciting evidence from the detainee until he or she has had a reasonable opportunity to counsel with counsel…

The informational component of s. 10(b) has two parts. The first is apparent in the language of the section, while the second is a product of the jurisprudence. Section 10(b) expressly requires that the detainee be told of his or her right to retain and instruct counsel without delay. In R. v. Brydges, the Supreme Court of Canada extended the informational component of s. 10(b) to include the requirement that the detainee must be informed of the existence and availability of duty counsel and Legal Aid. [emphasis added]

[28] The Supreme Court of Canada provided further direction when it released a trilogy of section 10(b)-related cases in R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, 259 C.C.C. (3d) 536: R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, 259 C.C.C. (3d) 443; and R. v. McCrimmon, 2010 SCC 36, [2010] 2 S.C.R. 402, 259 C.C.C. (3d) 519. In Willier, Chief Justice McLachlin and Justice Charron, writing for a majority of the Court, stated at paragraph 31 that the informational component "is relatively straightforward. However, should a detainee positively indicate that he or she does not understand his or her right to counsel, the police cannot rely on a mechanical recitation of that right and must facilitate that understanding" [emphasis added].

[29] As is clear from Devries and the surrounding Supreme Court authorities, some positive action on the part of the arrested or detained party is required to trigger additional informational obligations on the part of the police. Examples would be questions or comments asked following a recitation of the rights, or ambiguous and/or equivocal responses to the question of whether the individual wishes to speak to a lawyer: see Devries, supra at para. 38; R. v. Munro, [2009] O.J. No. 399, 79 M.V.R. (5th) 180 (S.C.J.), at paras. 45-52. A state of emotional excitement or upset does not constitute "special circumstances" warranting additional informational steps on the part of the police: see R. v. McGrath, [2004] O.J. No. 3216 (S.C.J.), at paras. 6-8, 14, 17, 24.

[30] The Ontario Court of Appeal has also recently re-addressed this specific issue in R. v. Owens, 2015 ONCA 652, 127 O.R. (3d) 603. Mr. Owens was arrested for driving with excess blood alcohol, like the applicant. Also like the applicant, Owens was read his rights to counsel from a pre-printed O.P.P. issued card. He responded, "No, not right now". No further efforts on the part of the police to explain or provide counsel occurred before Owens provided breath samples at the station. At trial, Justice Morneau determined that he had not invoked his right to counsel and therefore no Charter violation had taken place. A summary conviction appeal Justice disagreed, ruling that Owens' statement did not amount to a "clear and unequivocal waiver of the right to counsel" and, in the circumstances, the failure of the police to do more amounted to a s. 10(b) violation. The breath readings were subsequently excluded, and the Crown sought leave to appeal to the Court of Appeal.

[31] Justice Hourigan, writing for a panel of the Court, allowed the Crown appeal and restored the respondent's conviction. The summary conviction appeal Justice had erred by framing the issue as one of waiver, instead of whether Owens had in fact exercised his right to counsel. In coming to this conclusion, Hourigan J.A. cited the writing of Professor Don Stuart, a leading criminal law academic, in Charter Justice in Canadian Criminal Law, 6th ed. (Toronto: Carswell, 2014), at p. 429:

In Manninen, [1987] 1 S.C.R. 1233, the Supreme Court held that the right to counsel leads to correlative obligations on the police. The Court left open the question of whether the police duties were dependent upon the accused asserting the right as Manninen had done. The Ontario Court of Appeal in Anderson had earlier held that the police duties only arose where the accused had in any manner chosen to invoke or exercise his right to retain and instruct counsel. Anderson has been strongly criticized as unduly weakening the right to counsel by only protecting those accused who are knowledgeable, thoroughly understanding and assertive. The language of obligation throughout Manninen and its strong ruling on the facts suggested that the Supreme Court might well reverse Anderson. In Baig (1987), the Supreme Court did exactly the opposite in adopting the Anderson proposition that the duties depend on the accused asserting his right.

[32] The section 10(b) right is not absolute – the police implementation obligations are only triggered upon some positive activity on the part of the applicant, amounting to invocation of the right and reasonable diligence in exercising it. Absent such activity, "police duties to provide a reasonable opportunity to consult counsel and to refrain from soliciting evidence will either not arise in the first place or will be suspended: R. v. Sinclair, at para. 27". Once a trial judge determines that the police have complied with their informational obligation, the next question is whether an applicant has invoked or exercised his or her right, and thereby triggered implementation duties, such as providing a reasonable opportunity to consult with counsel of choice: Owens, supra at paras. 22-27; see also R. v. Zoghaib, [2006] O.J. No. 1023 (C.A.), aff'g [2005] O.J. No. 5947 (S.C.J.).

IV. Analysis

[33] I note that, in large part, the evidence adduced by the applicant and the respondent fits together reasonably well. The applicant largely agreed that the police conducted themselves as they say they did – what her evidence added was a perspective on how their conduct, and the circumstances of her arrest, caused her to act, or not act, with regard to exercising her right to counsel. Where the evidence differed – for example, with regard to whether the applicant heard Sergeant Marquis tell Officer Bell to contact duty counsel – I accept that it is entirely possible that Marquis did say this and, while she believed the applicant heard, it is also entirely possible that the applicant simply did not hear what was being said between the officers. Neither witness' evidence suffers in the circumstances.

[34] Having considered the entirety of the evidence, I make the following findings on this application:

(1) Officer Bell provided the applicant with an acceptable explanation of her legal rights at the roadside, when he read to her from his pre-printed O.P.P. card. While I accept that Bell was providing a lot of information at the same time – for example, cautions about statements to police, and breath demands regarding the two instruments employed - such circumstances are largely the case in every excess blood alcohol or impaired driving arrest. While the secondary caution was likely not required, and also not particularly helpful, I do not accept that its inclusion created a situation where the information regarding rights to counsel was not meaningfully provided to the applicant.

(2) I accept Bell's evidence that, being aware that the applicant was emotional and likely experiencing a criminal arrest for the first time, he attempted to explain the process and what would be required of her, so as to assist her in exercising her rights. While I accept that the rights were read quickly at the scene, I also accept that the applicant is obviously intelligent, and was listening and understanding what she was being told by Officer Bell. Part of this comprehension was revealed during her answer in cross-examination regarding who was on the phone she was provided while in custody - that she assumed it would be duty counsel because of the "verbiage" she received at the roadside regarding her ability to contact duty counsel or a lawyer. She also identified that the rights Bell read into evidence during his examination-in-chief were the same rights that he had provided to her following her arrest, indicating that she did hear and understand those rights.

(3) The applicant's evidence, in chief and in cross-examination, clearly sets out the circumstances she found herself in the night of March 17: she was in an unfamiliar, scary situation that was unfolding rapidly. While she had questions in her own mind about how to access counsel critically, for present purposes, she never gave any positive indication to the police in this regard. For example, she never said that she wanted to call a lawyer, but did not know of any. Nor did she say that she did not know of any lawyers, but she knew someone who could potentially provide assistance in finding one. I accept that, had she said either of these statements, the officers would have readily assisted her in accessing counsel. Indeed, the law would have required that of them. But, in the absence of any positive indication on her part that she was interested in exercising her right to counsel, the police did not violate her Charter rights in the circumstances. Ms. Chappell's evidence, with regard to this point, is best summed up in an answer she gave in cross examination:

"[Bell] asked me if I wanted to call a lawyer right now, I didn't, never been in trouble like this before, I didn't know a lawyer so my answer was no, I would not like to call a lawyer."

(4) Throughout her evidence, the applicant demonstrated she understood that she had the right to contact a lawyer, or alternatively speak with duty counsel. The law does not require the police, at the informational stage prior to an arrestee invoking or exercising her right to counsel, to explain various ways in which an individual can seek out counsel; e.g. by contacting a friend or family member to seek assistance. In the absence of any statement to the officers in this regard, the absence of this information being provided to the applicant did not amount to a breach of her s. 10(b) Charter right.

(5) I do not believe much turns, in the circumstances, on the encounter between the applicant and Sergeant Marquis at the police station. I understood Marquis' evidence to be that the applicant demonstrated a general uncertainty about the process that was occurring, such that Marquis thought it would be beneficial for her to speak to counsel. I accept that the applicant made no statement that would have even hinted at her thinking that she wanted to speak to a non-duty counsel lawyer; Marquis had duty counsel contacted because she thought the applicant should receive some form of legal advice in the circumstances. That sentiment accords deference to the importance of legal counsel to individuals in the applicant's circumstances. I accept that, had Marquis had an inkling that Ms. Chappell wanted access to a lawyer other than duty counsel, steps would have been taken by her to assist in that regard. I find that Ms. Chappell, as she testified to on this application, did not make any statement to Marquis regarding speaking to counsel.

(6) I do not place any weight, in the circumstances, on the absence of a videotape, or meaningful notes by Sergeant Marquis. While the interview room was equipped with recording equipment, the reason Ms. Chappell was in that room was to be searched by a female officer. No reasonable person would suggest such an event should be recorded. Further, the prisoner lodging-related questions were more administrative than investigative. In the circumstances of this case, where I am not faced with a factual dispute regarding what precisely was said (again, recall that the applicant has agreed that there was no specific statement made by her to Marquis regarding access to counsel), I do not believe that the absence of a reliable record, or ample notes on Marquis' part, is particularly meaningful. I entirely accept, however, that on different facts, such as those found in R. v. Hegedus, 2015 ONCJ 34, 17 C.R. (7th) 368, at paras. 34-39, a different conclusion may very well be warranted.

(7) I accept that all three officers were attuned to the fact that the applicant was an unexperienced participant in the criminal justice system, and sought to ensure that she understood what was occurring and that her rights were fully respected. I accept, as the applicant acknowledged in cross-examination, that she had the opportunity to make any further inquiries, or ask any follow-up questions, with regard to her ability to access legal counsel. She had the opportunity to say something that would have required the officers to provide her with a reasonable opportunity to consult counsel. The responsibility for that not happening has to lay at the feet of the applicant and not the police in the circumstances.

(8) While it would have been better had Officer Vince reiterated the rights to counsel on video back at the police station, he had no legal obligation to do so: see Devries, supra, at para. 42. I also note, however, Justice Doherty's valuable recommendation that such a practice be considered by the police. While I accept that Sergeant Marquis was attempting to act in the applicant's best interest by having duty counsel contacted, in my respectful view the best practice should be, in such circumstances, for someone in the applicant's position to have their rights re-read to them on video, in the breath room or elsewhere in the station. It would be hard for reviewing courts to find fault with such an approach, which would also demonstrate respect for the importance of the right to counsel for individuals who are in legal jeopardy as a result of a recent arrest.

(9) Finally, had I found the informational component lacking in this case, the fact that the applicant subsequently spoke to duty counsel would not have cured the violation. Access to any lawyer does not relieve the police from ensuring that an arrestee knows they can contact a lawyer of their choice. As Mr. Speyer eloquently referenced during his submissions, advice from a chosen legal advisor is a cherished component of our legal system, deserving of protection and respect from the courts. All the more reason for the police to ensure, whenever possible, that the recitation of rights is recorded on video at the police station.

[35] In conclusion, I am satisfied that, based on the existing law, the applicant was adequately informed regarding her section 10(b) rights under the Charter. I must acknowledge, however, some reservation in coming to this conclusion. As I hope is clear from these reasons, I accept that a young adult, with no prior criminal record, or contact with the authorities, found herself under arrest in quickly escalating circumstances. I accept that this triggered an understandable emotional response – anxiety, stress and worry. I expect most of us would feel quite similar. I earlier cited Professor Stuart's writings with regard to the evolution of the s. 10(b) right in the Supreme Court of Canada, and how post-Manninen there was some expectation that a more robust informational responsibility would be required. It is clear, however, as Professor Stuart acknowledged, that such an expectation has not come to pass. Ms. Chappell's circumstances, in my mind, present an example of why it might be in our collective interest to require a more expansive informational obligation – I suspect simple inclusion of the words, "do you know a lawyer? Do you know anyone who could give you the name of a lawyer?" would have triggered the applicant exercising her right to counsel. Such an exercise was undoubtedly in her best interest, and would not place an undue burden on the police. However, as I understand the law, no such obligation exists; therefore, the failure of the police to inform her in this regard does not trigger a section 10(b) Charter violation.

V. Disposition

[36] The application to exclude the breath samples is dismissed. As all elements of the offence are otherwise made out, Cassandra Chappell is guilty of the offence charged.

Released: January 18, 2018

Justice Scott Latimer