Ontario Court of Justice

Date: October 6, 2025

Court File No.: Newmarket 24-91109702

Between:

His Majesty the King

— AND —

Keegan William Munro

Before: Justice Michael Perlin

Heard on: June 26, 27 and September 2, 2025

Reasons for Judgment released on: October 6, 2025

Counsel:

Lilah Vassilenko — counsel for the Crown

Irwin Isenstein and Laheeb Akbarzad — counsel for the defendant

PERLIN J.:

I. The Charge and Charter Application

[1] On October 7, 2024, police, acting on information regarding an alleged intoxicated driver, stopped Mr. Munro operating his car in a Wendy's drive-through lane. Following an investigation, Mr. Munro was charged with 80+ operation – i.e., having a blood-alcohol concentration (BAC) exceeding the legal limit within two hours of operating a conveyance contrary to Criminal Code, R.S.C. 1985, c. C-46, s. 320.14(b).

[2] The case turns on Mr. Munro's application under s. 24(2) of the Charter to exclude his breath samples from evidence. If this evidence is admitted, the defence concedes the charge is made out. The trial proceeded as a blended voir dire. The Crown called the investigating officers. The defence called Mr. Munro and his father on the voir dire only.

[3] Mr. Munro alleges the police breached his Charter rights by:

(1) Arresting him and demanding that he provide breath samples into an approved instrument (AI) without grounds to do so, contrary to ss. 8 and 9,

(2) Delaying informing him of his right to counsel for 12 minutes, contrary to the s. 10(b) requirement that this be done immediately,

(3) Failing to discharge their s. 10(b) implementational obligations to facilitate (a) a call to counsel at the roadside, (b) access to counsel of choice, and (c) a second call to a lawyer after his call to duty counsel, and

(4) Video-recording the cells while he urinated, contrary to s. 8.

[4] I will address each argument in turn. If I find any Charter infringements, I will consider whether they justify exclusion of the evidence of Mr. Munro's breath samples.

I. The Narrative Necessary to Contextualize the Charter Arguments

[5] York Regional Police Constable Graham was on duty when he was approached by a staff member from a nearby bar. She told him a man had been asked to leave the bar after consuming alcohol and vomiting into a wine glass. The man had gotten into his vehicle, vomited again, and driven to the drive-through of a nearby Wendy's restaurant.

[6] PC Graham attended the Wendy's parking lot and found a car matching the one the staff member had described. The restaurant was closed. The car was stopped in the drive-through lane, with its horn blaring constantly. PC Graham conducted a stop, and demanded that the driver, Mr. Munro, provide a breath sample into what PC Graham believed was an approved screening device (ASD).

[7] Mr. Munro provided a sample, and the device registered a "fail". Based on the "fail", at 12:49 a.m., PC Graham placed Mr. Munro under arrest and demanded that he provide a breath sample into an approved instrument (AI) at the station.

[8] At 1:01 a.m., PC Graham read Mr. Munro his right to counsel.

[9] Throughout the process leading to the arrest and subsequent transport to the police station, Mr. Munro repeatedly asserted that he wanted to speak to a lawyer, or "my lawyer", or his family. During transport, PC Graham asked Mr. Munro for the name of his lawyer. Mr. Munro said it was "Nick" but refused to provide a last name. He testified Nick was his friend, who was not a lawyer.

[10] At the station, Sgt. Price asked Mr. Munro whether he wanted to speak to a lawyer. Mr. Munro said "yes". Sgt. Price asked Mr. Munro if he had "a specific lawyer you'd like us to try to phone, or just duty counsel for free". Mr. Munro responded, "I guess duty counsel for free". He spoke with duty counsel.

[11] In the breath room, Mr. Munro asked the qualified breath technician, PC Su, several questions about the investigation and the consequences of not providing breath samples. Mr. Munro provided two breath samples into an AI, which produced readings of 250 and 239 mg of alcohol per 100 mL of blood.

[12] Mr. Munro was lodged in a cell that was videotaped. At around 2:23 a.m., he stood, facing the toilet with his back to the camera and appeared to urinate.

II. Analysis

A. Alleged Charter Breaches

1. Charter, ss. 8 and 9: Grounds for the Arrest and AI Demand

[13] Mr. Munro argues the police lacked reasonable grounds to arrest him and demand that he provide a breath sample into an AI. The lawfulness of both the arrest and demand turn on whether police had reasonable grounds to believe Mr. Munro committed the offence of 80+ operation. [1] That offence rests on proof that the suspect has, "within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood". If PC Graham did not have reasonable grounds to believe these elements were satisfied, the AI demand and arrest were unlawful, and infringed Mr. Munro's rights under ss. 8 and 9 of the Charter.

[14] An officer has reasonable grounds where "compelling and credible information" establishes "a reasonable probability of crime". The officer must have subjective and objective grounds. Subjective grounds exist where "the arresting officer honestly believed that the suspect committed the offence". The officer's subjective belief "must be justifiable from an objective viewpoint". "The objective assessment is based on the totality of the circumstances known to the officer at the time of the arrest, including the dynamics of the situation, as seen from the perspective of a reasonable person with comparable knowledge, training, and experience as the arresting officer". See R. v. Beaver, 2022 SCC 54, at paras. 72 (1), (2), (3), (6) (emphasis in original).

[15] Mr. Munro was clearly operating a conveyance. The question is whether PC Graham had reasonable grounds to believe Mr. Munro's had an illegally high BAC.

[16] PC Graham's grounds rested on Mr. Munro having failed a roadside screening test on what PC Graham believed was an ASD. "Normally, where a properly conducted roadside screening test yields a 'fail' result, this alone will be sufficient to furnish a police officer with […] grounds": R. v. Bernshaw, [1995] 1 S.C.R. 254, at paras. 48-49, 80.

[17] The defence submits PC Graham was not entitled to rely on the "fail" reading to form grounds. PC Graham's testified he had used an "Alcotel" screening device to analyze the accused's breath sample at the roadside. If such a device exists, it is not an ASD: see Criminal Code, s. 320.11 and Approved Screening Devices Order, SOR/2024-66. The defence submits that the fact that PC Graham used something other than a true ASD meant that he lacked objectively reasonable subjective grounds.

[18] In R. v. Gundy, 2008 ONCA 284, the Court of Appeal set out a framework for analyzing allegations that an AI demand was unlawful due to issues with respect to the use of a screening device. The following points are relevant:

(1) In a Charter challenge where grounds for an AI demand "depend upon a 'fail' from an [ASD], the Crown must prove that the officer reasonably believed that he or she was using an approved device": para. 50.5;

(2) An officer who knows that a device is not approved or is unreliable cannot rely on its results to form grounds to make an AI demand: para. 41 (citing R. v. Bernshaw, [1995] 1 S.C.R. 254, at paras. 48, 80);

(3) The test is whether the officer had subjective and objectively reasonable grounds. If the device used was not in fact an ASD, "the objective component may or may not be made out; it depends upon whether the officer could reasonably believe that the device he or she was using was an approved device": para. 43;

(4) "In the absence of credible evidence to the contrary, the officer's testimony that he or she made a demand with an approved screening device is sufficient evidence that the officer had the requisite reasonable belief. The officer is not required to give the particular model number or otherwise identify the device. Obvious errors such as incomplete reference to the model number do not undermine the officer's testimony that the device was an approved screening device": para. 51.6;

(5) "[I]f the officer in his or her testimony refers to the device as an 'approved screening device', the trial judge is entitled to infer that the device was indeed an approved device". This evidence "is direct evidence upon which the trial judge can rely": paras. 44, 45;

(6) A trial judge may infer that something other than an ASD was used where there is "some credible evidence to the contrary", that undermines the officer's stated belief that he or she used an ASD: para. 47.

[19] For PC Graham to rely on the "fail" reading at the roadside, he needed to believe he was using an ASD, and his belief needed to be objectively reasonable.

[20] I am satisfied that PC Graham believed he was using an ASD. PC Graham testified he was using an ASD. Although he thought that the device was called an "Alcotel", he was clear that he believed it was "an approved screening device", calibrated to report a "fail" only if the subject's blood alcohol exceeded the legal limit.

[21] The remaining question is whether PC Graham's identification of the device as an "Alcotel" provides "credible evidence to the contrary" that causes me to conclude that something other than an ASD was used, such that PC Graham's stated belief is objectively unreasonable.

[22] In Gundy, at paras. 47 and 50.6, the Court of Appeal held that "obvious errors" in identifying a device by name do not qualify as "credible evidence to the contrary".

[23] I am satisfied that PC Graham made an "obvious error" as to the name of the device he used, and that the device was in fact an ASD. When asked by defence counsel about the device he had used, PC Graham testified, "[i]t's the Alcotel […] I don't remember the exact name of it. But it's the Alcotel [….] [I]t's called an ASD, which stands for Alcotel, I think, screening device […] the Alcotel 7000, I think".

[24] PC Boyd was also on scene at the time of the arrest. He testified that the device PC Graham had used was an "Alcotest 7000" — which is an ASD for the purposes of s. 320.11 of the Criminal Code: see Approved Screening Devices Order, SOR/2024-66.

[25] The defence submits that I cannot prefer the evidence of one officer over the other regarding the identity of the device used. I disagree. PC Graham had in his possession a police-issued device that he believed to be a "approved screening device" to test at the roadside for excessive blood alcohol. An "Alcotest 7000" is an approved screening device; an "Alcotel 7000" is not. PC Graham was unsure of the device's name. PC Boyd was unequivocal and certain that PC Graham was mistaken about the name of the device. PC Boyd was in a position to identify the device. He handled it and held it up to the in-car camera to show the "fail" indication on its display screen. I am satisfied that PC Boyd's identification of the device should be preferred. PC Graham's misidentification of the device as an "Alcotel 7000" rather than an "Alcotest 7000" is a minor and obvious error.

[26] PC Graham believed he was using an ASD. He was using an ASD. He was entitled to rely on the "fail" to form the belief that Mr. Munro had excessive blood-alcohol. I am satisfied that the AI demand and arrest were based on sufficient grounds so did not infringe Mr. Munro's ss. 8 and 9 Charter rights.

2. Charter, s. 10(b): Right to Counsel

[27] Mr. Munro alleges that his s. 10(b) right to retain and instruct counsel without delay, and to be informed of that right, was infringed in four ways. He submits police:

(1) Delayed reading him his right to counsel, thus infringing the right to be informed immediately of the s. 10(b) right,

(2) Failed to facilitate access to counsel at the roadside, thus infringing the right to consult with counsel immediately,

(3) Steered Mr. Munro to duty counsel, thus infringing his right to consult with counsel of choice, and

(4) Should have inquired into the sufficiency of advice received from duty counsel and facilitated a second call to counsel.

a) Delayed Reading of Rights

[28] Section 10(b) of the Charter provides that a person, "on arrest or detention", has the right "to retain and instruct counsel without delay and to be informed of that right". In R. v. Suberu, 2009 SCC 33, at paras. 41-42, the Supreme Court explained that the phrase "'without delay' must be interpreted as 'immediately'". In an impaired driving investigation, the obligation to inform a detainee of the right to counsel is suspended until that person is arrested. At that point, the arrestee must be informed "immediately" of the right to counsel, "[s]ubject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter": Suberu, at paras. 41, 42. If there is a delay in informing the detainee of their right to counsel, the Crown bears the burden of showing that the delay "was reasonable in the circumstances": R. v. Taylor, 2014 SCC 50, at para. 24.

[29] PC Graham arrested Mr. Munro just before 12:49 a.m., and read him his right to counsel at 1:01 a.m.

[30] From the arrest until 12:52:30 a.m., the officers were engaged in dividing up tasks, securing the accused in the back of the cruiser and securing his property. I do not understand the defence to take issue with the necessity of taking those steps. In any event, I accept the delay they occasioned was necessary and reasonable in the circumstances.

[31] I am satisfied that the right to counsel could have been read as early as 12:52:30 a.m., when PC Graham and Mr. Munro were first alone together in the cruiser. It was not read until 1:01:17 a.m. The defence takes issue with the remaining delay, a period of approximately nine minutes from 12:52 a.m. until 1:01 a.m.

[32] Part of that time—perhaps three or four minutes—was consumed by discussion between PC Graham and Mr. Munro regarding the right to counsel:

(1) There was little or no discussion from approximately 12:52:30 until 12:53:24;

(2) From 12:53:24 until 12:54:08, PC Graham indicated he was "gonna read some stuff" to Mr. Munro and Mr. Munro asked about speaking to his family. There was also a brief discussion about some seized property;

(3) From 12:54:08 until 12:55:13 a.m., there was little discussion, other than Mr. Munro asking once if he could call his family;

(4) From 12:55:13 a.m. until 12:56:02, a discussion occurred during which Mr. Munro asked about calling his lawyer, and PC Graham told him "I'm gonna get the number for your lawyer and all that stuff". PC Graham told Mr. Munro that the car was being audio and videotaped, and "I don't want you to say anything to incriminate yourself, or anything to that effect";

(5) There was little or no discussion from 12:56:02 a.m. until 12:58:25 a.m.; and

(6) At 12:58:25 a.m., Mr. Munro asked again to "call my lawyer". PC Graham indicated he could afford Mr. Munro privacy in the cruiser and told Mr. Munro that after transporting him to the station, "we're gonna allow you to speak with your lawyer". Discussion about this continued steadily, with Mr. Munro repeatedly asserting that he wanted to speak to a lawyer, until just after 1:01 a.m., when PC Graham began to read Mr. Munro his right to counsel.

[33] PC Graham explained that the time when he and Mr. Munro were not speaking was spent inputting data into his computer – a series of steps that he testified were necessary to move forward with the investigation. He testified that, at the time of the arrest, York Regional Police had recently moved to a new computer system. He understood it required officers to input certain information "before you get to the page where the rights to counsel and all that stuff is." His work on the computer involved running Mr. Munro's driver's licence on the system to confirm his identity, and inputting information, like name, arrest time and location. He understood that all these steps needed to occur before he could begin transporting Mr. Munro back to the police station, where he would be given access to counsel.

[34] While I accept PC Graham's evidence that these steps were necessary in the sense that they needed to occur at some point, I cannot accept that they could be prioritized over the constitutional obligation to inform Mr. Munro of his right to counsel under s. 10(b) "without delay". Many different activities can justify delay in informing an arrestee of their right to retain and instruct counsel. These include safety concerns for the police, pubic or detainee; medical concerns; and concerns relating to the preservation of evidence or integrity of the investigation: R. v. Shang En Wu, 2017 ONSC 1003, at para. 78; R. v. Rover, 2018 ONCA 745, at paras. 26-27. I am aware of no authority that authorizes delay to permit an officer to perform administrative tasks.

[35] The Crown has not demonstrated that the delay in reading Mr. Munro his right to counsel was reasonable in the circumstances. I find that the delay infringed Mr. Munro's right to be informed of his s. 10(b) right to counsel without delay.

b) Access to Counsel at Roadside

[36] Mr. Munro submits that the police infringed the implementational component of his s. 10(b) right to counsel by failing to provide him access to counsel at the roadside.

[37] Section 10(b) guarantees access to counsel "at the first reasonable opportunity" (emphasis in original) or "the earliest practical opportunity". If access to counsel is delayed, the Crown must demonstrate that the circumstances could not afford a realistic opportunity to consult with counsel. A realistic opportunity to consult with counsel is not necessarily the same thing as an opportunity to make a phone call. A reasonable or realistic opportunity to consult with counsel requires the ability and opportunity to contact, seek advice from, and receive advice from counsel. "[P]ractical obstacles to access" and "privacy and safety issues" may justify delay. See R. v. Taylor, 2014 SCC 50, at paras. 27-29, 32, 34; R. v. Torsney, 2007 ONCA 67, at para. 13.

[38] Mr. Munro's argument rests on the fact that PC Graham, in explaining why he did not facilitate access to counsel at the roadside, focussed on the fact that he needed to keep the in-car-camera system (ICCS) running so would have been unable to afford Mr. Munro the privacy he would need to consult with counsel confidentially. In cross-examination, PC Graham was confronted with a York Regional Police policy permitting officers to turn off the ICCS to allow consultation with counsel. Faced with this, PC Graham ultimately accepted that if had recalled YRP policy, he would have permitted Mr. Munro to speak to counsel at the roadside.

[39] Although PC Graham testified he would have been willing to turn off the ICCS had he been aware of the policy, in re-examination, he gave evidence that cast real doubt on whether he would have concluded it was appropriate to do so had he turned his mind to it. He cited the risk that an accused might harm himself or become ill while the camera was off as good reasons to keep it running. There are many things that may occur in a police cruiser for which an accurate video and audio record would be highly desirable. The need to record a detainee's time in custody strikes me as a sound reason to keep the ICCS active, depending on the circumstances. When recording is reasonably necessary, privacy cannot be afforded, and access to counsel at the time may be neither practical nor realistic.

[40] Notwithstanding the above, in cross-examination, PC Graham was clear that he would have been willing to turn off the ICCS had he been aware of the YRP policy. I accept this evidence.

[41] I do not accept that this demonstrates there was a realistic, practical opportunity to consult with counsel in the circumstances. Even if the ICCS had been turned off, there were practical barriers to providing access to counsel at the roadside. First, PC Graham cited Mr. Munro's handcuffs—and the fact PC Graham was not prepared to remove the cuffs—as a barrier to Mr. Munro using a phone.

[42] Second, PC Graham testified he was unwilling to give Mr. Munro unsupervised access to a cellphone at the roadside. Courts have accepted that relevant safety concerns mean police have no legal duty to allow detainees unsupervised access to a personal cellphone or an officer's cellphone at the roadside: R. v. Bernard, 2018 ONSC 5134, at para. 31, citing R. v. Taylor, 2014 SCC 50, at para. 27.

[43] So, although PC Graham conceded he would have facilitated a call to counsel, the evidence suggests this could not have been accomplished. I am not entitled to speculate a theory on how a call might have been accomplished in a way that permitted private consultation while ensuring safety and security on scene: R. v. Bernard, 2018 ONSC 5134, at para. 30.

[44] The evidence leads me to conclude on a balance of probabilities that a call could not have been facilitated at the roadside. As such, failing to provide access at that time did not infringe Mr. Munro's right to counsel under s. 10(b).

c) Access to Counsel of Choice at Station

[45] Mr. Munro submits his right to counsel was further infringed by police failing to take adequate steps to give him access to his counsel of choice at the station. Mr. Munro ultimately spoke to duty counsel after the following exchange with the booking sergeant:

Sgt. Price: You wanna speak to a lawyer?

Mr. Munro: Yes

Sgt. Price: Do you have a specific lawyer you'd like us to try to phone, or just duty counsel for free?

Mr. Munro: I guess duty counsel for free.

[46] Mr. Munro submits that this exchange, when assessed in context with his time with PC Graham at the roadside and during transport, demonstrates that police failed to discharge their duty to ensure that he understood he had options available to contact counsel of choice. While alone with PC Graham, Mr. Munro said numerous times that he wanted to speak to "my lawyer". He had indicated that he wished to call his family "at the right time" to get the lawyer's number. He had said his lawyer was named "Nick", while declining to provide a last name. PC Graham had said that police would, at the station, get the number for Mr. Munro's lawyer and put the two in touch.

[47] Mr. Munro testified that he thought this background had been conveyed to the booking sergeant. When Sgt. Price gave him a choice between a specific lawyer and duty counsel, he was left with the impression that if he did not already have the specific lawyer's number, his only choice was duty counsel. Mr. Munro submits that after he asked for duty counsel, PC Graham should have interjected to ensure Mr. Munro would not prefer to call family to get the number for a specific lawyer.

[48] When a detainee is advised of their right to counsel and indicates a desire to exercise that right, the police must facilitate access. A detainee has the right to chose duty counsel or counsel of choice, without facing undue pressure from police to select one option or the other. Where the detainee expresses a desire to speak to counsel of choice, police must exercise reasonable diligence in facilitating access. R. v. Taylor, 2014 SCC 50, at para. 24; R. v. Rover, 2018 ONCA 745, at para. 25; R. v. Edwards, 2024 ONCA 135, at paras. 36-42; R. v. Willier, 2010 SCC 37, at para. 43; R. v. Jhite, 2021 ONSC 3036, at paras. 42-45.

[49] For the following reasons, I reject Mr. Munro's evidence that he believed he had no choice but to call duty counsel. I find that Mr. Munro understood police would help him access counsel of choice if he so desired. He chose to consult duty counsel instead.

[50] Mr. Munro was not a credible or reliable witness. He testified that when he was in the Wendy's drive through, he honked his horn multiple times and was stationary because another vehicle was blocking his way. This was inconsistent with PC Graham's evidence, which I accept, that the horn was blaring constantly and no car was blocking Mr. Munro's vehicle. PC Graham's evidence is corroborated by the ICC, which shows that for approximately 24 seconds leading up to the initiation of the traffic stop, Mr. Munro's vehicle was stationary in the Wendy's drive through with no other car in front of it.

[51] Mr. Munro gave internally inconsistent evidence on his reasons for asking for counsel immediately at the roadside. He testified he did not know his rights, having never been in the situation of having to comply with a roadside demand before. He also testified that he had been stopped in a ride program when he was younger and had done a roadside test.

[52] Mr. Munro's evidence regarding his state of mind in the booking hall was inconsistent with what transpired. The language used by police could not be understood as pushing him toward duty counsel. Sgt. Price gave Mr. Munro a true choice between duty counsel and "a specific lawyer you'd like us to try to phone". The language PC Graham used in reading Mr. Munro his rights also underscored the same message: "You have the right to telephone any lawyer you wish. You also have the right to free advice from a Legal Aid Lawyer."

[53] Sgt. Price's language in the booking hall was open ended. It did not suggest Mr. Munro should pick one option or the other. He did not imply that "a specific lawyer" could be contacted only if Mr. Munro already had the number. Rather, the words "a specific lawyer you'd like us to try to phone", implied that police were willing "to try to" help him find that lawyer.

[54] This was consistent with what Mr. Munro had heard before. PC Graham had told Mr. Munro police could take steps to facilitate access to counsel of choice, and Mr. Munro appeared to understand:

PC Graham: Is your lawyer's number in your phone?

Mr. Munro: My lawyer's number is present with my family, and I will call them at the right time.

Mr. Munro: […] Am I able to call my family?

PC Graham: I explained to you that when we get you to the station, and we can afford you the privacy, we will give your lawyer a call. I asked you for the number. You haven't given a name or a number for your lawyer, okay.

Mr. Munro: Okay.

PC Graham: So, when we get to the district, we'll sort all that out.

[55] I reject Mr. Munro's evidence that the circumstances made him feel like he could not speak up to assert his rights. This testimony is inconsistent with his conduct that evening. Throughout the night, Mr. Munro was not shy. He asked PC Graham more than a dozen times to speak to his lawyer. He was similarly forthcoming with requests while speaking with Sgt. Price and other officers. I cannot accept while that he advocated for himself persistently throughout the night, at the moment when he was asked an open-ended question, he felt he had no choice but to select only one of the options presented to him.

[56] I reject Mr. Munro's evidence that when he asked for duty counsel, he believed he could only have one phone call, so could not contact his lawyer if he did not yet have the number. Just after asking to speak to duty counsel, he asked to call his wife. The request was refused. But the fact it was made demonstrates that up to that point—including moments earlier when he selected duty counsel—he thought he might be able to make more than one call. He testified he believed he only had one phone call, and it had to be to a lawyer, because that is what he had been told. But he was only told this in response to his question about speaking to his wife, which occurred after he had indicated he wished to speak to duty counsel. He had also indicated in the cruiser, in response to a question whether his lawyer's number was in his phone, that "my lawyer's number is present with my family, and I will call them at the right time, okay?" Before beginning the booking process, in response to the question "when can I use my phone call?", PC Graham told Mr. Munro, "[w]e're gonna book you in, and then we're gonna get the number for your lawyer, and we'll put you in contact with him."

[57] I am satisfied that Mr. Munro knew he had the option of relying on police assistance to reach counsel of choice. In these circumstances, his stated preference for duty counsel must be understood as reflecting just that: his preference. He wanted to speak to duty counsel. I suspect Mr. Munro decided this was a good option, since he did not have a specific lawyer in mind to contact. On his own evidence, he had only offered the name "Nick" in the cruiser in an effort to have PC Graham help put him in contact his friend Nicholas, who was not a lawyer.

[58] I reject the defence submission that PC Graham should have interjected after Mr. Munro stated his preference for duty counsel to inquire whether he instead wanted to contact some other lawyer. "[W]hat the police are required to say and do in a particular case to fulfill their duties under s. 10(b) will depend on what the accused says and does and what the police could reasonably surmise in the circumstances": R. v. Badgerow, 2008 ONCA 605, at para. 45, leave ref'd, [2014] S.C.C.A. No. 483; R. v. Ruscica, 2019 ONSC 2442, at paras. 38, 43. Mr. Munro had earlier expressed the desire to speak to "my lawyer" and had indicated he would call his family to get the number "at the right time". However, when Mr. Munro was asked how he would like to proceed once at the station, he indicated his preference for duty counsel. PC Graham testified he understood Mr. Munro preferred duty counsel. This was a reasonable conclusion. As I noted before, Mr. Munro was vocal throughout his interactions with police. If he had wanted counsel of choice he would have said so. The police had no obligation to double check on Mr. Munro's fully informed choice: see e.g., R. v. Willier, 2010 SCC 37, at para. 43; R. v. Jhite, 2021 ONSC 3036, at paras. 42-45.

[59] I find on a balance of probabilities that the police did not breach Mr. Munro's s. 10(b) right by failing to facilitate access to counsel of choice. Police discharged their implementational obligations by putting him in touch with duty counsel, as he requested.

d) Failing to Provide a Second Call to Counsel

[60] Briefly during closing submissions, defence counsel raised an argument that events in the breath room should have caused police to ask Mr. Munro about the sufficiency of the advice he had received from duty counsel, with a view toward providing a second call to a lawyer.

[61] The Supreme Court majority held in R. v. Willier, 2010 SCC 37, at para. 41, that s. 10(b) does not require police "to monitor the quality of advice once contact is made". Unless "a detainee indicates diligently and reasonably, that the advice he or she received is inadequate, the police may assume the detainee is satisfied with the exercised right to counsel and are entitled to" proceed: Willier, at para. 42. An obligation to provide another opportunity to consult with counsel may be triggered by (i) a change in jeopardy, (ii) a new procedure involving the detainee, or (iii) an objectively observable indication that the detainee had not understood the advice received: R. v. Sinclair, 2010 SCC 35, at paras. 2, 55; R. v. Kistuk, 2025 ONCA 195, at para. 33. In R. v. Lafrance, 2022 SCC 32, the Supreme Court found the third category was triggered where the accused came out of his initial conversation believing that he needed to "get a lawyer before I continue talking". The accused "was obviously ignorant as to his rights". The majority distinguished this situation from "general confusion", which is not a ground requiring further consultation: Lafrance, at paras. 84-86, citing Sinclair, at para. 55.

[62] Mr. Munro asked several questions of the qualified breath technician, PC Su, about his circumstances and the consequences of different courses of action, including the consequences of complying or not complying with the breath demand. I do not find that these questions demonstrated that he had not understood the advice he had received from duty counsel. The series of questions began with Mr. Munro confirming that he understood the breath demand and asking whether it was in his best interests to have a lawyer present. PC Su explained that the lawyer was not coming and noted that Mr. Munro had just spoken with duty counsel. Mr. Munro agreed ("I did, yeah"). Mr. Munro then volunteered that he was "just asking questions, you know. Never been in a situation like this". PC Su indicated this is not uncommon. He volunteered to answer any questions Mr. Munro had and to walk him through the process.

[63] It appeared to me that Mr. Munro simply wished to walk through what was happening, step by step, as PC Su had offered to do. A desire to do so, to my mind, is not a clear indication that he misunderstood the advice he had received from his lawyer on whether to cooperate with police.

[64] There could have been many different motivations for wanting to talk things through with the officer before providing a sample. The defence argument rests largely on Mr. Munro's evidence that he did not feel like he had received everything he needed from duty counsel, and did not raise this concern because he was not asked. I reject Mr. Munro's evidence on this point, in part based on the general concerns regarding his credibility that I raised earlier, and in part because his professed reluctance to speak up on his own behalf is inconsistent with his conduct throughout the evening.

[65] In his testimony, Mr. Munro did not elaborate on what he did not understand coming out of his call with duty counsel. I am satisfied, however, that if Mr. Munro had been dissatisfied with the advice he had received, he would have said so. While speaking with PC Su, Mr. Munro twice mentioned having spoken with duty counsel. He did not express uncertainty regarding the advice he had received.

[66] I conclude that PC Su was not obliged by s. 10(b) to inquire further whether Mr. Munro was satisfied with the advice he had received. I find no s. 10(b) breach occurred at this stage of the investigation.

3. Charter, s. 8: Video Recording Cell Toilet

[67] A booking video entered as an exhibit at trial depicts the cell area. After Mr. Munro was lodged in a cell, he was videotaped standing, facing the toilet with his back to the camera. He appeared to urinate. Mr. Munro testified on the Charter voir dire that this was embarrassing to him, as parts of his underwear were exposed.

[68] Defence counsel argues that the video recording of his client in these circumstances infringed his s. 8 Charter right to be free from unreasonable search and seizure. The argument rests on R. v. Mok, 2012 ONCJ 291, rev'd 2014 ONSC 64, leave to appeal ref'd 2015 ONCA 608. In that case, the trial judge and summary-conviction-appeal judge (whose decision is binding on me) found a s. 8 breach when a detainee was videotaped using the cell toilet.

[69] Determining whether the videotaping in this case infringed Mr. Munro's rights depends on whether it interfered with a reasonable expectation of privacy that he enjoyed in the circumstances. A search occurs within the meaning of s. 8 where state conduct interferes with a reasonable expectation of privacy. Video surveillance interfering with such an expectation will qualify as a search, which must conform with the requirements of s. 8. To determine if there is a reasonable expectation of privacy, courts consider the "totality of the circumstances", including the claimant's subjective expectation of privacy and the objective reasonableness of that expectation. See R. v. Mok, 2014 ONSC 64, at paras. 54-55, citing R. v. Wong, [1990] S.C.J. No. 118, at para. 47, R. v. Edwards, [1996] 1 S.C.R. 128, at para. 45, and R. v. Tessling, 2004 SCC 67, at para. 19.

[70] I am prepared to assume that Mr. Munro had a subjective expectation of privacy. He testified that he was told the cell was being videotaped, and that if he used the washroom, the camera would block out his genital area. He testified that he believed nothing would be seen if he used the toilet. He testified he was embarrassed that the rear of his underwear had been depicted on the video. Notwithstanding my earlier comments about Mr. Munro's lack of credibility, I am prepared to assume that he believed a larger area surrounding the toilet was obstructed and would not be captured on video, such that if he lowered his pants and stood facing the toilet his underwear would not be recorded.

[71] I note, however, that having reviewed the video, Mr. Munro's underwear is not visible when he stands to urinate. Further, I am satisfied that any subjective expectation of privacy was not objectively reasonable.

[72] The videotaping at issue occurred while Mr. Munro was a detainee in police custody. This diminishes the objective reasonableness of any expectation of privacy. Police record the cells for a variety of reasons relating to health, safety and security: see e.g., R. v. Mok, 2014 ONSC 64, at para. 76-78. In this context, many of the factors identified in R. v. Edwards as informing the totality of the circumstances point away from finding an expectation of privacy. Police possess and control the place searched and have sole authority to regulate access to the cells.

[73] The Superior Court in Mok held that police have a legitimate interest in recording the cells, but that this must be balanced against a detainee's legitimate expectation that they will not be recorded using the toilet. Placed in the terms of the Edwards factors, Mr. Munro's presence at the time of the recording points towards an expectation of privacy. His inability to leave, combined with the biological fact that he may need to use the toilet while in custody, creates a very real prospect that he may have to engage in a private activity while in that space.

[74] The court in Mok, faced with these circumstances, was satisfied that the "use of a modesty screen that protects the lower part of a person's body while using the toilet" would appropriately balance state and individual interests: R. v. Mok, 2014 ONSC 64, at para. 77. In response to that judgment, York Regional Police and other police services implemented measures to ensure that detainees have privacy while using the toilet: see R. v. Mok, 2015 ONCA 608, at para. 5. As a result, the portion of the cell video of Mr. Munro that would otherwise depict the toilet is blacked out. The police have taken steps to ensure that the area in which a detainee would most likely be naked is not captured on the video.

[75] Police took steps to ensure that Mr. Munro was aware of the video monitoring and recording and that the toilet area was obscured. Mr. Munro was advised that the cells were video-recorded, and that the area of the toilet was obscured, so as not to be captured on video. Sgt. Price is seen on the video gesturing in the air to explain the privacy box. Mr. Munro acknowledged in his testimony being aware of these facts.

[76] Mr. Munro had options open to him if he did not want to be captured on video as he testified he was. He could have sat on the toilet to urinate. Sgt. Price testified that nothing would have been visible on screen if Mr. Munro had been seated. It appears that a detainee could also urinate without lowering the rear of their pants below their buttocks, simply by opening, or lowering, only the front of his pants. This is what Mr. Munro did.

[77] What was captured on video in this case is starkly different than what was captured in Mok. In that case, the camera "captured a full frontal view of [the detainee]" as she lowered her pants and "had an unobstructed view of [her] sitting on the toilet". The placement of the toilet paper in cell led her "to stand up, with her pants at her ankles and take 2 steps in order to retrieve the paper and then return to sitting on the toilet". The camera had an unobstructed view of her using the toilet paper. It captured her "fully exposed to the video camera" as she pulled up her undergarment and pants. It depicted her genitalia and use of the toilet: R. v. Mok, 2014 ONSC 64, at paras. 32, 48.

[78] In contrast, what happened to Mr. Munro was benign. Mr. Munro is seen adjusting his pants and facing a toilet. There is no nudity. You can infer he is urinating. But no stream of urine is depicted. All that is seen is what one would expect to see in a large public men's room with multiple urinals: a fully-clothed man standing, facing a wall.

[79] I find that the videotaping of Mr. Munro's cell did not interference with a reasonable expectation of privacy: there was no search, and no infringement of the s. 8 right against unreasonable search and seizure. People in police custody are entitled to expect accommodations will be made to ensure that they are not recorded naked when they must expose themselves to use the washroom. YRP have made accommodations that appropriately balance the need to afford some privacy while monitoring the cells to ensure health, safety and security. A reasonable person in the circumstances would understand that the toilet area was blocked from monitoring and recording, but areas beyond it may be visible. People in these circumstances, armed with this knowledge, have options to ensure that they are not recorded while naked (e.g., sitting on the toilet).

B. Should the Evidence be Excluded Under s. 24(2)?

[80] The defence submits that the infringement of Mr. Munro's s. 10(b) right to counsel should lead to the exclusion of his breath samples from evidence under s. 24(2). Section 24(2) directs courts to exclude evidence "obtained in a manner that infringed or denied any of the rights or freedoms guaranteed by the Charter" if satisfied that "the admission of it in the proceedings would bring the administration of justice into disrepute".

[81] Evidence will meet the threshold of having been "obtained in a manner" that breached the accused's rights where a connection exists between the evidence and the breach. The connection may be causal, temporal or contextual, or a combination of all three. But it must not be too tenuous or remote. The fact that the discovery of evidence and a breach occur in "the same transaction or course of conduct" is indicative of the evidence being tainted, and potentially excludable under s. 24(2). See R. v. Tim, 2022 SCC 12, at para. 78; R. v. Pino, 2016 ONCA 389, at para. 72.

[82] I am satisfied the samples were obtained in a manner that infringed Mr. Munro's Charter rights. Mr. Munro's breath samples were seized and analyzed in the same transaction in which his right to counsel was infringed. There is no causal connection between the evidence and the breach: the breach did not cause the police to seize Mr. Munro's breath samples. But the evidence and breach are temporally and contextually connected. The connection is not tenuous or remote.

[83] I must next consider the factors set out in R. v. Grant, 2009 SCC 32, to determine whether admission or exclusion of the evidence would better serve the "overall repute of the justice system, viewed in the long term". The analysis starts from the conclusion that a breach has occurred, "and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system": Grant, at paras. 68-70. The analysis considers three factors: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the accused's Charter-protected interests; and (3) society's interests in an adjudication of the case on its merits: Grant, at para. 71.

1. Seriousness of the Charter-Infringing State Conduct

[84] The delay was approximately nine-minutes long. This period is significant from a constitutional perspective, as the right to counsel must be explained immediately. But the period was relatively brief.

[85] Assessed in context with the remainder of PC Graham's conduct, the delay appears to be an aberration. I am satisfied that PC Graham was aware of the obligation to read the right to counsel without delay, and was doing his best to comply with that obligation in a context where he believed he needed to delay:

(1) PC Graham was not ignorant of Mr. Munro's Charter rights. He testified he had been taught that the right to counsel had to be read immediately. He indicated almost right away after they entered the police cruiser that he needed to read Mr. Munro something. PC Graham did not try to elicit any incriminating information from Mr. Munro, which would have aggravated the seriousness of the breach: R. v. Davis, 2023 ONCA 227, at para. 67;

(2) The delay was subjectively motivated by a desire to take steps that PC Graham believed were necessary before he could read Mr. Munro his rights, not out of ignorance for or disregard of Mr. Munro's Charter rights or out of bad faith. I find he was working diligently to reach the point where the computer system would allow him to read Mr. Munro his rights;

(3) PC Boyd cautioned Mr. Munro right at the outset of the arrest regarding his right to silence. PC Graham told him, informally, within about four minutes of entering the cruiser that he would have an opportunity to speak to counsel and that police would help facilitate access to counsel of choice. This is not a substitute for a full reading of the right to counsel, which would have additionally provided information about the availability of free duty counsel. But it demonstrates that at least part of the message included in a full recitation of the right to counsel was provided relatively early in the post-arrest interactions;

(4) Approximately four minutes of the nine minutes were consumed responding to Mr. Munro's questions. This does not change the facts that the right to counsel could have been read immediately. But it does explain some of the delay; and

(5) Throughout the time in the car, PC Graham expressed what I find to be genuine concern about ensuring that Mr. Munro would not incriminate himself, would have access to counsel in private, and would have access to counsel of choice, if he so desired.

[86] These factors suggest that the seriousness of the Charter-infringing state conduct should offer little support for exclusion.

[87] However, what happened in this case does not appear to be an isolated incident. The seriousness of the breach is increased significantly by the fact that what happened in this case has happened before in this jurisdiction. Crown counsel shared with me R. v. Khan (6 March 2025), Newmarket (Ont. C.J.). In that case, Robinson J. found a s. 10(b) breach where the reading of the right to counsel was delayed by just under five minutes. The delay was attributed to the operational requirements of the in-car computer system:

According to P.C. Kadva's testimony, he did not begin reading Ms. Khan her right to counsel until 3:25, as he had to first input her information into the onboard computer before it would allow him to proceed to the right to counsel screen.

He testified that he could have attempted to do it from memory but chose to do it from the computer screen to make sure that he was reading it verbatim. He did not know if he was able to skip forward to the rights to counsel screen without first completing the screens requiring the accused's information.

… I accept P.C. Kadva's evidence that he did not know how to fast forward to the right to counsel screen without first inputting information on the previous screens. I also accept his evidence that he did not want to "wing it" because he wanted to make sure that he provided right to counsel verbatim. P.C. Kadva was not asked if he had the right to counsel script printed at the rear of his physical notebook.

The solution, moving forward, must involve officers being trained how to access the right to counsel screen before completing the previous screens; if this feature is not available, police officers ought to carry a printed copy of the right to counsel with them from which they can read before inputting all information on their onboard computer

Khan (2025), at paras. 43-44, 68-69.

[88] In both this case and Khan, police felt like they had to delay reading the right to counsel until they reached the appropriate prompt from their in-car computer systems. In both cases, the clocked ticked away while the arresting officers typed data into the computer as a prelude to arriving at the right-to-counsel screen. PC Graham testified that this was a new system that had been rolled out by YRP.

[89] Given the similarity between the two cases, I have considered whether I should treat the breach as systemic. In R. v. Rover, 2018 ONCA 745, at para. 40, our Court of Appeal explained that systemic Charter breaches—ones "that are the direct result of systemic or institutional police practices"—must be treated as more serious under the first Grant factor. The Court explained why: "A police practice that is inconsistent with the demands of the Charter produces repeated and ongoing constitutional violations that must, in the long run, negatively impact the due administration of justice."

[90] Is this breach the result of a systemic or institutional police practice? I am aware of two examples in this jurisdiction. The two cases were separated by about ten months: Mr. Munro was arrested in October 2024; Ms. Khan was arrested in December 2023. The evidence does not allow me to conclude that this issue is systemic in the sense that all or most officers are doing it, or that officers were directed to do it. The evidence does allow me to conclude that there is a larger problem than just one officer's misunderstanding of how to balance the operational requirements of a computer system with the constitutional requirement that the right to counsel be read immediately.

[91] This fact aggravates the seriousness of the breach and the need for the court to dissociate itself from the police misconduct. I note that while the events at issue in this case occurred in October 2024, ten months after the events at issue in Khan, in December 2023, they occurred about five months before Robinson J. released his reasons in Khan. When Mr. Munro was arrested, Robinson J. had not yet alerted YRP to the problem, or its clear solutions. If what happened in this case had occurred after Robinson J. put YRP on notice that this issue needed to be fixed, the seriousness of the breach would have been far worse.

[92] It should be clear from these comments that if the problem evident in this case and Khan has not been eliminated already from YRP practices, this must be done now.

2. Impact on the Accused's Charter-Protected Interests

[93] This line of inquiry does not favour exclusion. The informational component of s. 10(b) is a means to enjoying the implementational component of the right. It also serves to assure detainees that "'they are not entirely at the mercy of the police while detained' and are entitled to a 'lifeline to the outside world' through which" they can learn of their legal rights and obligations: R. v. Davis, 2023 ONCA 227, at para. 41.

[94] The delay here unreasonably deprived Mr. Munro of information to which he was entitled regarding his right to consult counsel. However, I am satisfied that the breach had little impact for Mr. Munro. In the time leading up to PC Graham reading Mr. Munro his right to counsel, Mr. Munro asserted his desire to speak with a lawyer at least ten times, and had asserted his right to silence: e.g., "without my lawyer present, I'm not answering". Although PC Graham did not formally read Mr. Munro his right to counsel until 1:01 a.m., early in their interactions in the cruiser, shortly after 12:55 a.m., PC Graham confirmed Mr. Munro's understanding that he would be able to speak to a lawyer, but not until they were at the station.

[95] The fact that Mr. Munro plainly understood there is a right to counsel does not undermine the seriousness of the breach. A detainee's prior knowledge of their rights is no substitute for police complying with their informational obligations. However, Mr. Munro's knowledge that he was entitled to legal advice, as confirmed relatively quickly by PC Graham, shows that in this case the delay and breach had little discernible impact on Mr. Munro's Charter-protected interests. Mr. Munro firmly believed he would be able to implement his right to counsel, so would have a "lifeline to the outside world" while in police custody.

3. Society's Interest in an Adjudication on the Merits

[96] This factor strongly favours admission of the evidence. The breath-sample analysis is essential to the Crown's case. It is highly reliable evidence demonstrating that Mr. Munro's BAC was nearly three times the legal limit. Society has a compelling interest in prosecuting allegations of drinking and driving given their prevalence and the grave risk this conduct poses to public safety. Excluding reliable evidence critical to the Crown's case would "undermine the truth-seeking function of the justice system and render the trial unfair from the public's perspective, thus bringing the administration of justice into disrepute": see R. v. Beaver, 2022 SCC 54, at para. 131.

4. Balancing

[97] The final stage of the Grant analysis involves assessing and balancing each of the three factors, "focussing on the long-term integrity of, and public confidence in, the administration of justice": R. v. Tim, 2022 SCC 12, at para. 98. The question is whether admitting the evidence would bring the administration of justice into disrepute: Beaver, at para. 133. In this analysis, the first two Grant factors will generally pull only in favour of exclusion. The extent of that pull varies in each case. Where both of the first two factors strongly favour exclusion, the third factor "will seldom, if ever" lead to inclusion; if only one of the first two factors strongly favours exclusion, the third factor becomes important. It always pushes, to varying degrees, in favour of inclusion. It does so strongly "where the evidence is reliable and critical to the Crown's case": R. v. McGuffie, 2016 ONCA 365, at paras. 62-63.

[98] The breach, viewed in isolation, was not serious. But assessed in light of the highly similar breach found in Khan, the breach must be seen as serious and weighing firmly in favour of exclusion: YRP is using a computer system that has caused at least two officers to conclude that administrative tasks needed to be prioritized over the Charter-mandated obligation to read a detainee the right to counsel immediately.

[99] While the breach is serious, the impact on Mr. Munro's Charter-protected interests was small. For around nine minutes, PC Graham delayed reading Mr. Munro his right to contact counsel; all the while, Mr. Munro persistently asserted his desire to contact counsel and, relatively early in the interaction, PC Graham assured him that he would indeed have access to counsel.

[100] The evidence is highly reliable and critical to the Crown's case. Its exclusion would result in an acquittal. Its inclusion would result in a finding of guilt.

[101] I find that the third factor tips the balance. I am satisfied that exclusion of this evidence would do more harm to the long-term repute of the justice system than would its admission. The public would be alarmed by the exclusion of such critical evidence of a serious offence based on a breach that, while serious, lasted only nine minutes and had limited effect on the accused's Charter-protected interests.

III. Disposition

[102] The application to exclude evidence under s. 24(2) of the Charter is dismissed. I admit the breath-test results into evidence. The readings of 250 and 239 mg of alcohol per 100 mL of blood are conclusive proof that Mr. Munro's BAC at the time of the samples was the lower of the two numbers, so 239 mg/100 mL: Criminal Code, s. 320.31(1).

[103] The samples were taken at 1:56 and 2:18 a.m., which is within two hours after Mr. Munro ceased to operate a conveyance when he was pulled over just before 12:45 a.m. As such, the Crown has proved beyond a reasonable doubt that Mr. Munro had a BAC exceeding the legal limit within two hours of operating a conveyance. I find him guilty of 80+ operation contrary to s. 320.14(1)(b) of the Criminal Code.

Released: October 6, 2025

Signed: Justice Perlin

Footnote

[1] Reasonable grounds to believe a suspect has committed this specific offence authorize the AI demand: Criminal Code, s. 320.28(1)(a)(i). Reasonable grounds to believe a suspect has committed any indictable offence authorize an arrest without warrant: Criminal Code, s. 495(1)(a). An unlawful arrest offends the s. 9 Charter right against arbitrary detention. Breath samples seized pursuant to an unlawful demand are seized in contravention of the s. 8 Charter right against unreasonable search and seizure.