R. v. DaParteira, 2026 ONSC 2081

R. v. DaParteira, 2026 ONSC 2081

COURT FILE NO.: CR-25-6476-00AP

DATE: 20260408

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

KRIS DaPARTEIRA

Appellant

COUNSEL:

Reem Said, for the Crown

Michael Gordner, for the Appellant

HEARD: August 13, 2025

On appeal from the conviction entered by Justice C. Jahns Malott in the Ontario Court of Justice at Windsor, Ontario, on March 13, 2025.

REASONS ON SUMMARY CONVICTION APPEAL

HORVAT J.:

1The Appellant appeals his conviction for a charge of operating a motor vehicle with a blood alcohol concentration equal to or exceeding 80 milligrams of alcohol in 100 millilitres of blood contrary to section 320.14(1) (b) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. He was convicted on March 13, 2025, by The Honourable Justice Christine Jahns Malott.

2The Appellant argues that the trial judge erred in dismissing all Canadian Charter of Rights and Freedoms applications filed and failing to exclude evidence through the application of s. 24 (2) of the Charter.

3For the reasons that follow, the appeal is dismissed. The trial judge considered the proper factors, did not make any unreasonable findings and made no errors in her decision. She made findings of fact that were open to her to make on the evidence before her. Her conclusion that there was no breach of the Charter in this case was reasonable, soundly arrived at without error. I am not persuaded that there is a reason to disturb her decision.

PROCEDURAL BACKGROUND

4On or about April 1, 2023, the Appellant was charged with operating a motor vehicle while exceeding the legal limit contrary to s. 320.14(1)(b) of the Code.

5On April 11, 2023, this matter was first spoken to in the Ontario Court of Justice. It was adjourned several times until August 20, 2023, when the matter was set to July 10, 2024, for pre-trial applications and August 15, 2024, for trial.

6On July 10, 2024, a Crown witness was ill, and the pre-trial applications could not proceed. The applications were adjourned to August 15, 2024, to proceed as a blended trial. December 18, 2024, was added as a secondary date. While earlier dates were offered, the Crown was not available.

7On August 15, 2024, the trial was not reached because of a trial continuation of an unrelated matter. The earliest date available for the trial to commence was December 12, 2024.

8On November 25, 2024, the Appellant filed an application for relief under s. 11(b) of the Charter, alerting the Crown for the first time to the concern over delay.

9The trial commenced on December 12, 2024, as a blended voir dire and trial, and arguments were completed on December 18, 2024. The Appellant argued that his Charter rights under ss. 8, 9, 10(b) and 11(b) were breached and that the evidence should be excluded under s. 24(2) of the Charter.

10On March 13, 2025, Malott J. delivered her decision dismissing all Charter applications and convicting the Appellant.

THE EVIDENCE AT TRIAL

11On April 1, 2023, at approximately 10:30 p.m., Constable Khatir observed the Appellant driving a yellow Ford Mustang at 13 kilometers per hour in a 50 kilometer per hour zone. The Appellant changed lanes without signaling and stopped his vehicle in the middle of a live lane, which Constable Khatir deemed unsafe. Although not known at the time, the Appellant’s vehicle had run out of gas and was dying out on the road. Constable Khatir pulled behind the Appellant’s vehicle, put on his police lights, approached the driver’s side of the vehicle and requested documentation. The Appellant appeared confused and was unable to produce the requested documents and apologized more than once. Constable Khatir formed a reasonable suspicion that the Appellant’s ability to operate the vehicle may have been impaired by alcohol.

12At 10:40 p.m., Constable Khatir read the Approved Screening Device (“ASD”) demand. The Appellant provided a sample and registered a fail. At 10:41 p.m., Constable Khatir placed the Appellant under arrest for impaired operation and for exceeding the legal blood alcohol limit. At approximately 10:43 p.m., Constable Khatir read the Appellant his rights to counsel, secondary caution and breath demand. The Appellant then indicated that he understood and that he wished to speak with a lawyer, but he did not provide a name. Constable Khatir advised the Appellant that a roadside call with a lawyer was not possible and that he would be given a reasonable opportunity to contact a lawyer in private once at the police station.

13At 11:02 p.m., the driver who was to transport the Appellant to the station arrived at the scene. At 11:07 p.m., the Appellant was transported to the station arriving at approximately 11:20 p.m., when the Appellant was turned over to Constable Eskharia, the booking and notes officer. Constable Eskharia explained to the Appellant that he had the right to speak to a lawyer and showed him the Legal Aid lawyer list. The Appellant stated that he wanted to speak to a family member. Constable Eskharia refused and told the Appellant to choose a lawyer from the list. The Appellant continued to ask to speak with his father and Constable Eskharia responded more than once that the only person the Appellant was permitted to contact was a lawyer, following the direction of the impaired investigation protocol.

14Constable Eskharia’s notes indicated that she had to repeat herself “several times, as he was not understanding. He kept saying he did not want to talk to talk to a lawyer unless he could talk to his parents first”. Constable Eskharia said that she would speak with her Sergeant about the issue and it would be up to him whether to allow the Appellant to speak with a family member.

15Sergeant Gacanin explained to the Appellant that he could not call his parents and could only speak with a lawyer because the investigation was pending. According to Sergeant Gacanin, the Appellant did not indicate why he wanted to talk to his parents, despite being asked. The Appellant was not told that he could call his parents to obtain the name of a lawyer. Sergeant Gacanin did not keep notes of these interactions with the Appellant. The Appellant disagreed that Sergeant Gacanin asked him why he wanted to speak with his paents.

16The Appellant was transferred back into Constable Khatir’s custody without talking to a lawyer at approximately 11:45 p.m. to conduct the breath tests, after which he was transferred back into Constable Eskharia’s custody. Both Constable Khatir and Constable Eskharia asked the Appellant if he wanted to speak to a lawyer. Constable Eskharia’s last note indicated that the Appellant said that he “cannot do anything without my family being involved”.

17Constable Khatir was the registered breath technician, and the trial judge was satisfied that all equipment was in proper working order and utilized properly. Constable Khatir described the Appellant as frustrated that he could not speak with his father. He also recalled that the Appellant stated that he cannot speak with a lawyer without his father and that he initially did want to talk to a lawyer at the roadside.

18The Appellant testified on the Charter voir dire. He confirmed that at the roadside, he told Constable Khatir that he wanted to talk to a lawyer because: “I knew I was gonna be charged for something serious, so I wanted to make sure I had somebody that could protect my rights.” He also confirmed that when Constable Eskharia spoke with him about contacting a lawyer, he said: “I didn’t want to contact a lawyer until I contacted my father first.” The Appellant also testified: “they never asked me why I wanted to call my dad. If they had, I would’ve told them it was to get the name of the lawyer we used before.”

19When asked why he did not tell the police that he wanted to speak with his father to obtain the name of a lawyer, the Appellant said:

If – if somebody would have asked me, I definitely would have told them. I just didn’t feel the need to even explain why I need to call my parents, ‘cause after I told Eskharia that I wouldn’t contact a lawyer unless I contacted my father, she said that there was absolutely no reason that I could contact anybody else but a lawyer. So, I just felt like there was no reason for me to explain myself because it didn’t matter, what I would say was gonna change the event.

20Later in his evidence, the Appellant was again asked why he did not tell the officers the reason that he wanted to speak with his father. The Appellant responded:

Well, it was – after the first time I said I wanted to contact a lawyer, the second time when I talked to Eskharia and – and then I said I wanted to contact my father prior to calling a lawyer, and she said I absolutely cannot call anybody else but a lawyer. So then after that I just – I didn’t think there was a reason for me to explain myself as to why I want to contact a lawyer, ‘cause I figured it wouldn’t even have made a difference even if I told them it was to call another lawyer, ‘cause she told me I couldn’t call anyway. So, I just figured even if I would have said that, I still wouldn’t have been able to contact my father.

21On cross-examination, the Appellant was asked how the officers were to know why he wanted to call his father. He responded: “I wasn’t expecting them to know what the reason was” and then continued:

I just didn’t want to explain myself after the other officer already said I couldn’t contact anybody else. So, I figured there was no reason for me to explain why, ‘cause even if I would have said, “I want to contact my father to get lawyer’s name,” I didn’t think it was gonna matter, ‘cause they already told me there’s no way I can contact anybody else.

22On cross-examination, the Appellant also confirmed that he understood his right to counsel.

23The Appellant provided samples without speaking to a lawyer of 230 milligrams of alcohol in 100 millilitres of blood.

THE RULING OF THE TRIAL JUDGE

24On the evidence of Constable Khatir and the print outs from the Intoxilyzer 8000C, the trial judge was satisfied and found beyond a reasonable doubt that the Appellant was operating his vehicle when he had a blood-alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood.

25The trial judge concluded that none of the Appellant’s ss. 8, 9, 10(b) or 11(b) Charter rights were violated.

ANALYSIS

The Standard of Review

26The Court of Appeal for Ontario succinctly stated the standard of review on a summary conviction appeal in R. v. Sheahan, 2017 ONCA 159 at para. 12 as follows:

Absent an error of law or a miscarriage of justice, the test to be applied by a Summary Conviction Appeal Court is whether the findings of the trial judge are unreasonable or cannot be supported by the evidence. A Summary Conviction Appeal Court Judge is not entitled to substitute his or her own view of the evidence for that of the trial judge. A trial judge’s factual findings are entitled to deference, absent palpable and overriding error.

27In R. v. Paschek, 2025 ONSC 7022, Desormeau J. outlined in more detail the standard of review at paras. 14-16:

In reviewing the decision of the trial judge, the court’s task is not to decide whether it agrees with the trial judge’s decision and, if it does not agree with it, to substitute this court’s own views. It is not open for this court to do that. It is only if this court finds an error in the trial judge’s legal analysis that it is open to this court to overturn their decision. The court is allowed to consider the evidence that was before the trial judge, but only for the purpose of deciding whether he could reasonably have reached the conclusions that he did on the evidence before him. If the trial judge’s conclusions are reasonably supported by the evidence, this court cannot simply substitute its own views for his as to the appropriate outcome in the event those views are different. Further, even if this court is left with doubts about the trial judge’s conclusions, those doubts cannot persuade this court that a new trial should be ordered. It is only if and when this court finds that the trial judge’s conclusions are clearly not supported in the evidence that the decision can be overturned and order a new trial: R. v. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656.

This court is required to show considerable deference, or respect for, the trial judge’s decision. He was the one who was there and heard the witnesses testify and watched them as they did so. The trial judge is to be given considerable leeway to appreciate the evidence and the conclusions to be drawn from it: R. v. Biniaris, 2000 SCC 15, [2000]1 S.C.R. 381.

As noted in the jurisprudence, trial reasons will be sufficient if, read in context, they show why the judge decided as he or she did. The object is not to show how the judge arrived at his or her conclusion, in a “watch me think” fashion. It is rather to show why the judge made that decision. A trial judge’s reasons must allow for meaningful appellate review, which includes justifying and explaining the result: R. v. R.E.M., 2008 SCC 51, at para. 17.

28The application of a legal standard to the facts of a case is a question of law. Although a trial judge’s factual findings are entitled to deference and can only be set aside if they were clearly wrong, a ruling on the application of the law to the facts as found, is subject to review on a standard of correctness. Whether or not there has been a Charter violation and the admissibility of evidence pursuant to s. 24(2), is a question of law subject to review on a correctness standard: R. v Shepherd, 2009 SCC 35 at para. 20; R. v. Dussault, 2022 SCC 16 at para. 26; R. v. Hillier, 2023 ONSC 5862 at paras. 50-52.

Issue 1: The trial judge did not err in law or on a mixed question of fact and law in finding that the Appellant’s [s. 8](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) and [s. 9](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) rights were not violated

29The Appellant argues that the trial judge erred in her analysis of s. 8 and s. 9 of the Charter in that both the taking of the breath sample and the arrest and detention were entirely based on the results of the ASD, which was tainted in the following ways:

(a) Constable Khatir was unaware of the proper grounds for an ASD demand;

(b) there was a lack of proper grounds for the ASD demand; and

(c) the ASD demand was not made in compliance with the immediacy requirement.

30The correct test for an ASD demand is that the officer must have a “reasonable suspicion that a person had alcohol in their body” at that time or within the preceding three hours: s. 320.27(1)(a) of the Criminal Code. The subjective branch of the reasonable suspicion standard requires that the officer have an honest suspicion that the statutory prerequisites are met. The officer is not required to explicitly state that they formed the requisite suspicion, and in forming their subjective suspicion, there are no particular “magic words” required: R. v. Notaro, 2018 ONCA 449 at para 37; R. v. Yates, 2014 SKCA 52 at para 33; R. v. Bernshaw, 1995 150 (SCC), [1995] 1 SCR 254 at para 48; R. v. Bush, 2010 ONCA 554 at para 37.

31Once the officer has the requisite subjective suspicion, then the inquiry turns to whether that suspicion is objectively reasonable. Determining objective suspicion requires an assessment of whether a reasonable person, with the knowledge and experience of a knowledgeable and experienced police officer, placed in the position of the officer would conclude that the officer’s suspicions were reasonable. The totality of the factors and circumstances must be considered. The presence of an odour of alcohol, or drug is not necessary to form reasonable suspicion that the driver has alcohol, or drugs, in their body: Yates at para. 33; R. v. Wang, 2010 ONCA 435 at para. 17; R. v. Williams, 2013 ONCA 772 at para. 24; R. v. Juan, 2007 BCCA 351 at para. 19; R. v. Sinclair, 2005 MBCA 41 at para 14.; R. v. LePage, 2007 ONCA 582 at para. 5; R. v. Gundy, 2008 ONCA 284 at paras 41-49; R. v. Luong, 2010 BCCA 158 at paras. 19-27; R. v. Whyte, 2011 ONCA 24 at para. 31 aff’d by 2011 SCC 49; R. v. Walsh, 2019 ONSC 2337 at para 18; R. v. Hryniewicz, [2000] O.J. No. 436 (CA); R. v. Zoravkocic, [1998] O.J. No. 2668 (CA) at para. 2; R. v. Nahorniak, 2010 SKCA 68 at paras. 26-27.

32Constable Khatir testified that he formed “a reasonable suspicion that the driver’s ability to operate the vehicle may be impaired by alcohol.” After reviewing the evidence of Constable Khatir, the trial judge concluded that while he articulated the test for ASD demand incorrectly and misunderstood the test, he nevertheless complied with the requirements and considered the relevant factors. The trial judge noted her concern about the fact that Constable Khatir “was unaware of or lacked an understanding of the appropriate test,” however, she found that Constable Khatir formed a subjective belief that the Appellant had alcohol in his body while driving the trial judge stated, and that belief was objectively reasonable. She stated: “To say that someone is impaired by alcohol would necessarily require that alcohol be in the body. In all of the circumstances, I find that the reasonable suspicion is objectively reasonable.”

33The Appellant argues that the trial judge erred by noting her concern that Constable Khatir did not understand the proper test and then incorrectly quoting his testimony by stating “someone is impaired” rather than “may be impaired.” Further, the Appellant argues that the trial judge incorrectly stated that the officer must “suspect a possibility that the person has alcohol in his body” not “had” alcohol in his body. [Emphasis added]

34The Appellant also argues that even if Constable Khatir knew the correct test, there were no grounds for the demand given that there was no admission of alcohol consumption, odour of alcohol, alcohol in the vehicle, or slurring of speech. The grounds relied on by the trial judge, namely the lane change, inability to find documentation, confusion, apologies, low, quick speech, red eyes, and stopping the vehicle in a live lane, do not support a reasonable suspicion where there is no evidence of alcohol according to the Appellant.

35I agree with the Crown that the totality of these circumstances does establish that Constable Khatir’s subjective belief met the standard of reasonable suspicion of alcohol in the Appellant’s body and that subjective belief was objectively reasonable. In my view, the trial judge’s finding was not unreasonable and is supported by the evidence, particularly given that the trial considered the totality of the circumstances. Further, there is nothing unreasonable about the trial judge’s conclusion that “someone impaired by alcohol would necessarily require that alcohol be in the body.” If someone is impaired by alcohol, they necessarily have alcohol in their body. The trial judge’s factual findings are entitled to deference, and I have found no palpable or overriding errors in her decision.

36Alternatively, the Crown argues that s. 320.27(2) of the Criminal Code applies. This section permits an officer to make an ASD demand without suspicion if three conditions are met: they are in the course of the lawful exercise of statutory or common law powers, they have an approved screening device in their possession, and the person is operating a motor vehicle. In my view, Constable Khatir acted lawfully under this section when he initiated a traffic stop after observing the Appellant operating a motor vehicle travelling 13 km/h in a posted 50 km/h zone and coming to a stop in a live lane of traffic. Constable Khatir was in possession of an ASD at the time of the incident.

37On the issue of immediacy, the Appellant argues that the trial judge erred by not addressing in her decision that Constable Khatir wrongly articulated the test for when a demand must be made and complied with. Constable Khatir said the words “within a reasonable time”, instead of “immediately” in his evidence. The Appellant also argues that Constable Khatir formed his reasonable suspicion at 10:30 p.m. and took ten minutes before making the demand at 10:40 p.m., with no explanation or excuse for the delay. In my view, the Appellant incorrectly begins the clock at 10:30 p.m. and ignores a number of factors in those ten minutes that must be considered before the clock begins to run.

38Sections 320.27(1) and (2) put timing constraints on both the making of the demand by the police and on compliance with the demand by the detainee. The timing of the screening demand requires the detainee to comply with the demand immediately. The word immediately, however, does not mean instantaneously: R. v. Tosun, 2021 ONSC 2895 at para. 38.

39Whether the immediacy requirement is met must be assessed contextually. All circumstances must be considered when assessing the immediacy requirement from when the officer forms the reasonable suspicion to the making of the demand to the detainee’s response. The time must be no more than is reasonable to enable the officer to discharge their duties as contemplated by the screening provision. A short delay of a few minutes due to articulated and legitimate safety concerns will fall within the immediacy requirement: R. v. Quansah, 2012 ONCA 123 at paras. 45-49; R. v. Misasi, (1993), 12 O.R. (3d) 232, 1993 8577 (ONCA) at para. 15; R. v. Tosun, 2021 ONSC 2895 at para. 40.

40The trial judge found that the immediacy requirement was met after reviewing the timeline and events between when Constable Khatir first observed the Appellant’s vehicle moving slowly at 10:30 p.m. to when the Constable Khatir first made the ASD demand at 10:40 p.m. The trial judge stated:

Ten minutes passed from the time that Constable Abu Khadir first observed the vehicle being driven to the time that the sample was obtained. I am at a loss to see how the officer could have moved any faster or done anything differently than he did. I am satisfied that the immediacy requirement was complied with and do not find that there was any delay or breach of Charter rights here.

41I agree with the trial judge. It was reasonable for Constable Khatir to take the steps that he took between first observing the vehicle driving slowly at 10:30 p.m., and ultimately forming the reasonable suspicion and returning to his vehicle to obtain the ASD, and making the demand at 10:40 p.m. These steps included: the Appellant driving 13 kilometers per hour in a 50 kilometer per hour zone; the Appellant changing lanes without signaling; the vehicle stopping in the middle of a live lane; Constable Khatir pulling behind the Appellant’s vehicle; the officer conducting a computer search and advising dispatch of location of the vehicle stop; Constable Khatir approaching the driver’s side of the vehicle; the request for documentation by Officer Khatir; the Appellant unable to locate the documentation; the Appellant appearing confused and apologizing twice to the officer; Constable Khatir returning to his vehicle to obtain the ASD; and then returning to the Appellant’s vehicle to ultimately make the ASD demand at 10:40 p.m. The trial judge’s findings are supported by the evidence.

42In these circumstances, the trial judge correctly assessed the facts and determined that Constable Khatir complied with the immediacy requirement as he returned to his vehicle to obtain the ASD when he formed his reasonable suspicion and made the demand immediately upon returning to the Appellant’s vehicle. The trial judge made appropriate findings of fact for which there was ample evidence There was nothing unreasonable in her factual findings and there is no basis to interfere with the trial judge’s conclusions.

43I find that the trial judge did not err in finding that Constable Khatir (i) had a reasonable suspicion that the Appellant had alcohol in his body; and (ii) satisfied the immediacy requirement. This ground of appeal is dismissed.

Issue 2: The trial judge did not err in law or on a mixed question of fact and law in finding that the Appellant’s [s. 10(b)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) rights were not violated

44The Appellant argues that the trial judge erred in finding that the Appellant’s s. 10(b) rights were not violated given that: (i) the Appellant wanted to call a family member to obtain the name of a lawyer; (ii) the Appellant did not make a clear and unequivocal waiver of his right to call a lawyer; and (iii) no Prosper warning was given.

45In Regina v. Lafrance, 2022 SCC 32, the Supreme Court considers its decision in R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310 and describes the obligation on police officers with respect to s. 10(b) at para. 72:

Properly understood and applied, Sinclair gives effect to s. 10(b) and achieves its purpose. It identifies within s. 10(b) an informational component (requiring police to advise detainees of their right to counsel), and an implementational component (requiring police to allow detainees to exercise their right to consult counsel), which implicitly includes “a duty on the police to hold off questioning until the detainee has had a reasonable opportunity to consult counsel” (para. 27). And, as just noted, Sinclair also recognized that the implementational component of s. 10(b) imposes upon police a further obligation: to provide a detainee with a reasonable opportunity to consult counsel again if a change in circumstances or a new development makes this necessary to fulfill s. 10(b)’s purpose (para. 53).

46At trial, the Appellant testified that on the night of April 1, 2023, he wanted to call his father to obtain a lawyer. The Appellant also testified that he was never asked by anyone at the police station the reason that he wanted to call a family member rather than a lawyer, and that he felt that he did not need to explain the reason to anyone because the officers told him that he could only call a lawyer. He argues that the officers had a duty to inquire why the Appellant wished to call his parents, relying on the following decisions in support: Her Majesty the Queen v. Hanson, 2016 SKQB 243 at paras 40-49; R. v. McFadden, 2016 ONCJ 777 pp 18-19; Her Majesty the Queen and Lydia D. Williams, 2016 SKPC 69, 2016 SKPC 069 paras 33-34. Further, the Appellant argues that the trial judge incorrectly accepted the evidence of Sergeant Gacanin despite his evidence not being corroborated by his notes. He also argues that Sergeant Gacanin’s evidence was contradicted by Constable Eskharia and Constable Khatir.

47There is no question that the Appellant had a right to call a third party to obtain the name of a lawyer, and the trial judge did not dispute this in her reasons. I disagree with the Appellant, however, that the officers had “a clear duty” to inquire of the Appellant about why he wanted to call his parents. The trial judge correctly stated that it was the Appellant’s obligation to “clearly explain” why he wanted to speak with his parents and that the police “are under no obligation to inquire” as to this reasoning if it is otherwise not provided. The trial judge relied on the decision of R. v. Jandu, 2022 ONCJ 384 in her reasons. This position is further supported by the following decisions cited by the Crown: R. v. Antoninas, 2014 ONSC 4220 at para. 94; R. v. Mumtaz, 2019 ONSC 468 at para. 39; R. v. Cheema, 2018 ONSC 229 at para. 31; R. v. Beals, 2020 ONSC 996 at para. 71.

48In Beals, Woollcombe J. stated at paras. 71-72:

…. If a detainee does not advise the police as to the reason for which he or she wants to contact a third party, the police are not required to make inquiries as to the reasons why such a call is being sought. The Court of Appeal addressed this issue specifically in R. v. Adams, 1989 7161 (ON CA), [1989] O.J. No 747, a case in which the detainee was denied the opportunity to call his mother despite repeated requests. In rejecting that there had been a violation of his s. 10(b) rights, Larcourcière J.A held:

The appellant submitted that following his arrest, his s-s. 10(b) right to retain and instruct counsel without delay was violated by reason of the refusal by police to grant his repeated requests to call his mother. The appellant claimed that he told the police that the call was for the purpose of securing counsel, but they did not believe him. Counsel for the appellant suggested that as the police officer's evidence on the voir dire was contradictory to that of the appellant, the learned trial judge erred in failing to accept the appellant's evidence as to the real purpose of the phone call.

In his ruling on the voir dire, Judge Zalev found that the appellant had been cautioned and advised of his right to counsel after being charged with attempted murder. The trial judge noted that the appellant asked to call his mother while in the police cruiser on route to police headquarters and that the request was repeated later at the police station. The staff sergeant who was on duty at the time, informed the appellant that his call would be arranged as soon as possible. He asked the appellant if the call was urgent, and the appellant replied that it was not and that it could wait. The learned trial judge found that the subsequent written statement given by the appellant to the police was made voluntarily. He also specifically found that in Waltz's request to call his mother, the word "lawyer" was never mentioned.

There were no special circumstances in this case which required the police to seek a clarification as to the reason why Waltz, who was sober at the time of the arrest and subsequent interview by police, wished to contact his mother: see Baig. v. The Queen (1987), 1987 40 (SCC), 37 C.C.C. (3d) 181 (S.C.C.) and R. v. Manninen (1987), 1987 67 (SCC), 34 C.C.C. (3d) 385 (S.C.C.).

See also: R. v. Johnston, (2004) 183 C.C.C. (33d) 157 (B.C.C.A.) at para. 52; R. v. Zoghaib, [2005] O.J. No 5947 (S.C.J.); aff’d [2006] O.J. No. 1023 (C.A.); R. v. Cheema, 2018 ONSC 229 at para. 31.

49I agree with the Crown that the cases relied on by the Appellant are distinguishable. In the present case, the Appellant was clear in his refusal to speak with a lawyer and at no time following the s. 10(b) caution, was he visibly confused, expressed misunderstanding of his rights, or expressed a connection between calling his family to facilitate contact with a lawyer. In his own evidence at trial, the Appellant confirmed that he understood his right to counsel.

50Further, I disagree with the Appellant that the evidence of Constables Eskharia and Khatir was inconsistent with Sergeant Gacanin’s evidence. The trial judge concluded that Constable Khatir attempted to determine why the Appellant insisted on calling his father, however, the Appellant never said that he needed his father to help him find a lawyer. The Appellant cut off Constable Khatir when he tried to talk to him about calling a lawyer and was clear with him about his refusal to call a lawyer. The police cannot be expected to be able to read the Appellant’s mind with respect to why he wanted to speak with his father. The trial judge considered all the evidence before her and found that it was clear that the Appellant never alluded to the fact that his desire to speak with his father was to assist him in finding a lawyer.

51None of the factual findings made by the trial judge was unreasonable or unsupported by the evidence. The trial judge made no error in finding that the police were not under any obligation to inquire into why the Appellant wished to speak with his parents in the circumstances of this case.

52The Appellant also argues that he did not make a clear and unequivocal waiver of his s. 10(b) rights. In my view, based on the evidence before her, the trial judge correctly found that the Appellant refused to speak with a lawyer and waived his s. 10(b) rights. The Appellant argues that the officers should have taken steps to ensure that he unequivocally waived his rights after he consistently refused to speak with a lawyer and instead asked to speak with a family member, and that the trial judge erred in not directing her attention to Constable Khatir’s evidence that he did not know if the Appellant still wanted to speak to a lawyer prior to providing a sample.

53With respect to the Appellant’s argument that he did not make a clear and unequivocal waiver of his right to call a lawyer, the trial judge reviewed the evidence of Sergeant Gacanin, Constable Eskaria, Constable Khatir and the Appellant. She noted that the Appellant stated, “I don’t need one” in reference to a lawyer, and “I do not want a lawyer.” The trial judge also accepted the evidence of all three officers that Sergeant Gacanin had to explain the situation to the Appellant a number of times. Additionally, Constable Khatir was firm in his evidence that he concluded that the Appellant no longer wished to call a lawyer based on the Appellant’s clear verbal communication.

54In the breath room, Constable Khatir explained to the Appellant his right to call a lawyer. The Appellant interrupted Constable Khatir several times and the trial judge found that the Appellant was very clear that he understood his rights and that he refused to call a lawyer. The trial judge did not accept the Appellant’s argument with respect to his assertion that he was never asked the reason that he wanted to speak with his father rather than a lawyer, or that no one explained to him that he could speak with a lawyer that night but did not need to stay with that lawyer. Given that the Appellant’s blood alcohol level was nearly three times the legal limit, the trial judge correctly concluded that his reliability was affected.

55Again, I find no error of law in the trial judge’s reasoning based on findings of fact that she was entitled to make based on the evidence before her. The Appellant is essentially attempting to relitigate the issues at trial, rather than point to any errors made by the trial judge that could form a basis to interfere with the trial judge’s conclusions.

56The Appellant also argues that the trial judge erred in finding that a Prosper warning was not required in this case. A Prosper warning is necessary when the following three successive prerequisites are satisfied: the Appellant must have (i) asserted his right to counsel, (ii) made reasonable efforts to contact counsel, and (iii) then indicated a change of mind: R. v. Prosper, 1994 65 (SCC), 1994 SCJ No. 72, 1994 SCR 236 at para. 44; R. v. Owens, 2015 ONCA 652 at para 22.

57There is no question that the Appellant made no efforts at all to contact a lawyer. During the booking process, the Appellant told Sergeant Gacanin, “I don’t need a lawyer” and then later told Constable Eskharia, “I do not want a lawyer.” Constable Eskharia took efforts to present the Appellant with the duty counsel list and explain to him that choosing a lawyer from the list did not mean that he was required to keep that lawyer. The Appellant refused to contact a lawyer and instead focused on his family and their reaction to his arrest. The trial judge correctly found that the Appellant made no efforts to contact a lawyer and that a Prosper warning was not required. Her findings are reasonable and are supported by the evidence.

58Each of Sergeant Gacanin, Constable Eskharia and Constable Khatir testified that they attempted to explain contacting a lawyer more than once to the Appellant. The officers did all they could and on the evidence, the Appellant very clearly made an informed decision to waive his right to counsel. The trial judge made no error in her decision.

59I find that the trial judge did not err in finding that the police had no duty to ask the Appellant why he wanted to speak with his father and she made no error in finding that the Appellant made a clear and unequivocal waiver of his right to call a lawyer. I am not persuaded that the trial judge’s findings were unreasonable and I am not persuaded that there is a reason to disturb her findings. This ground of appeal is dismissed.

Issue 3: The trial judge did not err in law or on a mixed question of fact and law with respect to [s. 24(2)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

60The Appellant also argues that the trial judge dealt with s. 24(2) in a summary way and if there is a finding of a breach, then s. 24(2) analysis would be required, and additional submissions should be made. The Crown argues that the trial judge correctly applied and balanced the three R. v. Grant, 2009 SCC 32 factors in favour of the inclusion of evidence in this impaired case which has important public policy concerns.

61The trial judge concluded that if she had found a Charter breach or breaches, then she would have found that allowing the evidence, despite those breaches would not bring the administration of justice into disrepute under the analysis in Grant. She found that: (i) the police exercised good faith both at the scene and at the station, and there was nothing approaching a pattern of abuse or a systemic non-compliance with Charter rights; (ii) any breaches that may have occurred are on the lower end of the scale; and (iii) society has a strong interest in prosecuting these types of offences on their meris.

62In balancing the factors, the trial judge concluded that none of the potential breaches in this case were of such a nature to warrant exclusion of the evidence. I see no error in the Grant analysis undertaken by the trial judge which was based on findings of fact that she was entitled to make and are entitled to deference on appeal.

63Had I found that the trial judge was incorrect and that there was a breach of the Appellant’s ss. 8, 9, or 10(b) Charter rights, then a fresh analysis of the Grant factors would be necessary.

Issue 4: The trial judge did not err in law or on a mixed question of fact and law in finding that the Appellant’s [s. 11(b)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) rights were not violated

64On the question of delay, the trial judge found that the timelines in this case were in compliance with the guidelines set out in R. v. Jordan, 2016 SCC 27. She explained in her reasons that she was prepared to dismiss the application for non-compliance with the practice direction and the Criminal Rules of the Ontario Court of Justice in relation to delay applications. It was also the trial judge’s position that the application failed based on a review of the time calculations, which she found to be 77 days over the presumptive ceiling, not including 52 days for defence delay and 57 days for the discreet event of witness illness. Ultimately, in her view, there was no delay and the calculation resulted in the matter reaching trial 32 days under the presumptive ceiling.

65The trial judge emphasized in her reasons that “every actor in the criminal justice system is responsible for ensuring that criminal proceedings are carried out within a reasonable time” including the Appellant, who did not raise the issue of delay until two weeks before trial, or after it was too late for the Crown to take steps to mitigate the delay. The trial judge found that this amounted to an implicit waiver or delay by the Appellant.

66Finally, the trial judge concluded that even if she was incorrect about apportioning 52 days of delay to the Appellant, the calculation would result in the trial being 17 days over the presumptive ceiling and “this delay is nevertheless reasonable given the late filing of the s. 11(b) application.” It is to be noted that the delay in this scenario is 20 days over the presumptive ceiling and 17 was a simple calculation error at trial.

67The Appellant argues that the trial judge erred in finding that the Appellant’s s. 11(b) rights were not violated because she incorrectly attributed half of the 104 days of delay to the Appellant because of the late notice of the Appellant’s 11(b) application.

68On the Appellant’s first argument, it was within the trial judge’s discretion to assess the entirety of the circumstances when deciding how to apportion the delay days. She considered that the trial adjournment on August 15, 2024, was unexpected and because of another matter taking priority, attributed no fault to either party. Next, she considered the illness of a witness as a discreet event. Finally, the trial judge concluded that the Appellant gave late notice of his section 11(b) Charter application. She determined that notice should have been given on July 11, 2024, when the Crown pre-trial was held. Instead, notice was given on November 25, 2024, less than three weeks before the re-scheduled trial was set to begin, and more than three months following the August 15, 2024, trial adjournment. The Appellant filed his amended s. 11(b) application and factum only one day prior to the trial commencing on December 12, 2024. In these circumstances, it was too late for the Crown to take any steps to mitigate the delay.

69In these circumstances, there was nothing unreasonable or incorrect about the trial judge exercising her discretion to find that one-half of the delay should be apportioned to the Appellant.

70Further, the Appellant argues that the trial judge incorrectly found that the alternative calculation of 17 (or, correctly 20) days over the Jordan ceiling was reasonable where the delay was caused by the discreet event of a witness’ illness. In my view, the trial judge properly considered the entirety of the circumstances in exercising her discretion to find this delay reasonable and, in my view, the same conclusion holds when considering 20 rather than 17 days over the presumptive ceiling.

71I find that the trial judge did not consider improper factors or ignore necessary factors in her analysis of the Appellant’s s. 11(b) Charter right. I am not persuaded that the trial judge’s findings were unreasonable, and I see no reason to disturb her findings. This ground of appeal is dismissed.

CONCLUSION

72The Appellant has not met the onus upon him to satisfy me that the trial judge made any errors on her applications of the Charter. The trial judge’s decision is owed considerable deference. For these reasons, the Appellant’s appeal is dismissed and leave to appeal is denied.