Sabrina Sara Fiacco

The accused brought a section 24(2) application to exclude breath testing evidence following a finding that the police violated his Charter right to counsel of choice.

The police followed standard institutional procedures that systematically channeled the accused to consult with on-call duty counsel rather than facilitating access to private counsel of choice as requested.

The court applied the Grant framework, balancing the seriousness of the Charter-infringing state conduct, the impact on the accused's Charter-protected interests, and society's interest in adjudication on the merits.

The court found that the systemic nature of the violation, the importance of the right to counsel of choice, and the need to maintain public confidence in the administration of justice outweighed society's interest in prosecuting the drinking and driving charge.

The breath test evidence was excluded and the charge dismissed.

The accused was charged with driving over 80 mg/100 mL of blood alcohol.

During a RIDE spot-check, the accused was directed to a secondary investigation area without explanation, and subsequently arrested after failing a screening test.

The accused sought to contact his counsel of choice but was ultimately directed to duty counsel instead.

The court found two Charter breaches: (1) a violation of section 10(a) for failure to inform the accused of the reason for detention when directed to the secondary area, and (2) a violation of section 10(b) for failure to adequately facilitate access to counsel of choice.

The court found that the Toronto Police Service's institutional practice of controlling access to counsel and channeling accused persons to duty counsel, combined with inadequate resources and efforts to locate private counsel, resulted in the accused being denied a reasonable opportunity to obtain legal advice from counsel of his choice.