CITATION: R. v. Poptelecan, 2026 ONSC 4399
COURT FILE NO.: CR-25-10000076-00AP
DATE: 20260728
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
Appellant
– and –
DOREL POPTELECAN
Respondent
Vivian Gallegos, for the Crown
Brian Starkman, for the Respondent
HEARD: June 4, 2026
S. VELLA J.
REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL
[1] The Respondent, Mr. Poptelecan, was acquitted, following the exclusion of the breath readings evidence of the approved instrument readings, by Bloomenfeld J., pursuant to s. 24(2) of the Charter, on October 27, 2025. The charge acquitted from was operating a conveyance with a concentration of alcohol exceeding 80 milligrams of alcohol per 100 millilitres of blood contrary to s. 320.14(1)(b) of the Criminal Code.
[2] The Crown appeals from the acquittal on the grounds that the Honourable trial judge:
(a) Erred in law in finding that the police violated the Respondent’s right to counsel of choice, pursuant to s. 10(b) of the Canadian Charter of Rights and Freedoms, by failing to provide him with access to a telephone to call his sister prior to taking the breathalyzer test;
(b) Engaged in a material misapprehension of evidence by relying on submissions of counsel, rather than evidence, to arrive at the conclusion that the reason why the Respondent wished to call his sister was to facilitate his access to a lawyer of his choice;
(c) Erred in law in finding the purported breach was serious enough to warrant exclusion of the breath readings under s. 24(2) of the Charter in what the judge characterized as unusual and exceptional circumstances and after the finding that the police acted in good faith; and
(d) Erred in law in finding that the purported breach had a high impact on the Respondent’s s. 10(b) rights by mischaracterizing the choice given to the Respondent as either speaking to duty counsel or speaking to no lawyer, negating the opportunity to speak to a private lawyer.
[3] For the following reasons, I find that the Honourable trial judge erred in law with respect to both the s. 10(b) analysis and the s 24(b) analysis under the Charter and engaged in a material misapprehension of the evidence with regard to the purported purpose of the Respondent’s requested telephone call to his sister and grant the appeal. A new trial at the Ontario Court of Justice is ordered.
Brief Overview of Undisputed Facts
[4] For purposes of the appeal, the Respondent accepted the facts as set out in paragraphs 9 – 22 of the Appellant’s factum. I will only provide a summary of those facts.
[5] Bloomenfeld J. heard this matter by way of a one-day trial on September 23, 2025, and rendered oral reasons on October 27, 2025 (the “Reasons”). The Respondent brought an application alleging his s. 10(b) rights were breached; namely, his right to counsel of choice, and for exclusion of the breath readings under s. 24(2) of the Charter.
[6] The trial judge granted the Respondent’s application, excluded the breath readings, and then granted the acquittal, as the remaining evidence led by the Crown left her with reasonable doubt.
[7] The Crown called the arresting officer, P.C. Robertson, and the breathalyzer technician, P.C. Wasylyk. In addition, P.C. Robertson’s body-worn camera video, the booking video, the breath room video and the Certificate of Qualified Technician were adduced into evidence.
[8] The Respondent did not testify.
[9] On the day of the arrest, P.C. Robertson received information from dispatch of a radio call about an impaired driver. The witness said they pulled up in front of a white pickup truck that had been observed weaving in and out of traffic and sometimes driving up onto the curb and then back on to the road.
[10] P.C. Robertson attended the scene and found the Respondent and his sister. The sister had been called by the Respondent to come as she had keys to the truck. The Respondent appeared to P.C. Robertson to be intoxicated.
[11] The Respondent was arrested for impaired operation, advised of his right to counsel, a caution and was subject to a breath demand. Upon the arrest at the roadside, P.C. Robertson read out the Approved Instrument Demand, plus the standard Caution. The Respondent confirmed to P.C. Robertson that he understood what she said to him regarding his right to counsel and the caution. He responded that he understood “very well”. He advised that he did not have a lawyer, did not want to speak to a lawyer “now”, and did not want to speak to duty counsel. He also advised that he did not want to provide a breath sample. When P.C. Robertson told him that failure to do would result in an automatic charge, the Respondent stated that he did not really understand the breath demand but confirmed he did not want to provide a breath sample.
[12] The Respondent was taken to the police station for processing. During the processing, when asked by the officer as to whether he had his own lawyer, the Respondent answered “Uh, I don’t know yet”. In response to further questions about whether he would like free legal advice from a duty counsel, the Respondent said, “I talk to, to my family”.
[13] Further, the Respondent indicated that he did not really understand about whether he wanted access to duty counsel or a lawyer and did not want to provide an answer to the question of whether he wanted to speak to a lawyer. Instead, he asked whether the police could wait until after he spoke to his sister. The officer said he can wait and talk to his sister, but the processing officer said to P.C. Robertson, in the presence of the Respondent:
But again, just for you officers, you have asked him if he wants a lawyer or legal advice. He has acknowledged he hasn’t responded. I’ve also asked twice in regards if he has his own lawyer, if he’d like duty counsel. He says he wants to speak to his sister.
[14] After processing, P.C. Robertson took it upon herself to contact duty counsel, leaving a message at 2:43 p.m. The Respondent then spoke with duty counsel at 3:00 p.m. Thereafter, he was taken to the breath technician, where he provided two suitable samples of his breath, with readings of 250 and 260 milligrams of alcohol in 100 millilitres of blood.
[15] The Respondent was not provided with access to a telephone to call his sister prior to providing the breath samples, but he did speak with duty counsel. There was no complaint or dissatisfaction expressed by the Respondent with the legal advice he received from duty counsel.
The Trial Judge’s Findings
[16] The essence of the appeal revolves around the trial judge’s finding that the police had failed on the implementation of the Respondent’s right to counsel of choice when the police did not facilitate the requested phone call to his sister.
[17] The trial judge ultimately found that the police, and P.C. Robertson in particular, should have realized that the reason why the Respondent wanted to speak to his sister was so that he could implement his right to counsel of choice. However, the trial judge made this finding of fact based on drawing an inference from the surrounding circumstances; namely, the fact that the Respondent’s repeated request to speak to his sister was done in the context of being asked whether he wanted to invoke his right to a lawyer of his choice, duty counsel or no counsel.
[18] In the course of the trial judge’s Reasons, Her Honour makes the following material findings, at pps. 13 – 14:
[I]t seems to me and I find that Mr. Poptelecan was overwhelmed and uncertain about what his options were regarding rights to counsel. Mr. Poptelecan was visibly upset and confused and consistently indicated in the interactions leading up to the breath room video that he wished to speak to his sister about what was happening, and that included rights to counsel because he did not understand.
I further find that Constable Robertson never entertained the possibility that Mr. Poptelecan wished to speak to his sister in order to determine whether there was a lawyer he wished to contact. Without Mr. Poptelecan providing her with a name for his counsel of choice, Constable Roberson moved directly to duty counsel as the only option for implementing Mr. Poptelecan’s rights to counsel…
[19] At p. 19 of the Reasons:
In my view, there was a clear and obvious link between Mr. Poptelecan’s request to speak to his sister and his determination of whether he wanted to speak to his own lawyer, duty counsel, or no lawyer.
This is not a case in which Constable Robertson was expected to inquire why Mr. Poptelecan wished to contact his sister. She was, however, expected to listen and respond to Mr. Poptelecan’s indication that he wanted to speak to his sister about whether or how to implement his rights to counsel. (emphasis added)
[20] At p. 21 of the Reasons:
I agree with the defence contention that on the facts of this case, Constable Robertson was obligated to turn her mind to the third option of facilitating a call with Mr. Poptelecan’s sister in order to address the question of how or whether he wished to implement rights to counsel. (emphasis added)
[21] The trial judge focussed on the police actions with respect to the implementational duties and specifically the failure of the police to allow Mr. Poptelecan to call his sister despite numerous requests based on the trial judge’s finding that Mr. Poptelecan was going to ask his sister about whether and how to implement his rights to counsel.
[22] Important to the trial judge’s decision was the fact that Constable Robertson failed to address in her testimony the fact that the Constable Wasylyk had told her to go back a second time and talk to Mr. Poptelecan about his rights to counsel, identified as “a disturbing lacuna in the evidence”. Constable Wasylyk addressed this in his testimony and noted that Constable Robertson had reported to him, upon completing the second inquiry, that Mr. Poptelecan was still uncertain about exercising his rights to counsel. However, Constable Robertson testified in chief that there were no further such discussions with Mr. Poptelecan about rights to counsel after her initial conversation with him. Second, the trial judge noted repeatedly that Mr. Poptelecan indicated that he was uncertain about his options regarding rights to counsel (p. 13, Reasons). Third, the trial judge characterized Constable Robertson’s actions as providing Mr. Poptelecan with only two choices in the face of his uncertainty: duty counsel or no counsel and then she chose for him the option of duty counsel.
[23] Also of note, there is no suggestion in the evidentiary record that Mr. Poptelecan ever expressed any concern about the quality of the legal advice he obtained from duty counsel.
[24] However, the trial judge did not make a finding that Mr. Poptelecan ever expressly told the police that he was asserting his right to contact a lawyer – only that he did not make a decision one way or another and wanted to call his sister first without expressing a reason why he wanted to call his sister.
Analysis
[25] The right to counsel, protected by s. 10(b) of the Charter, imposes three overarching duties on the police to the detainee:
(a) The detainee must be informed of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;
(b) If the detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and
(c) To refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (except in urgent and dangerous circumstances) (Mumtaz, at para 20, R. v. Taylor, 2014 SCC 50, at paras. 22-23; R. v. Dickson, [2021] O.J. No. 4925 ONSC, para. 71).
[26] It is trite law that the Charter protected right to counsel does not extend to a right to speak with non-lawyers (R. v. Silvajun, 2018 ONSC 3114, at para 23; R. v. Mumtaz, 2019 ONSC 468, at paras. 26-27).
[27] However, once the accused has indicated that they wish to consult a lawyer, the police must facilitate that request which can include facilitating a telephone call with a friend or family member in order to obtain the name of a lawyer as part of their implementational duty (R. v. Kumarasamy, at paras. 25-26; Mumtaz, at para. 24).
[28] That said, to invoke this right, the obligation is on the detainee to assert affirmatively that they wish to speak to a lawyer as a matter of diligence (R. v. Richfield, 2003 CanLII 52164 (ON CA), [2003] O.J. No. 3230, at para. 7; R. v. Dickson, at para. 70; Silvajun, at para. 20).
[29] As observed in Mumtaz, at para. 25, where a detainee tells the police they wish to contact a lawyer, the police must facilitate this request by providing a reasonable opportunity to consult with the lawyer, which can include speaking with a third party (see also, Kumarasamy, at para. 25). However, if the detainee does not tell the police why they wish to speak to the non lawyer third party, there is no obligation on the police to determine that reason (Mumtaz, at paras. 25-39).
[30] More specifically, in Mumtaz, at para. 23, the court held that the implementational duties of the police are not triggered unless “the detainee indicates a desire to exercise his or her right to counsel”.
[31] Furthermore, in Mumtaz, at para 32, the court found that absent a factual finding that the arresting officer knew that the purpose of the detainee’s request to call a third party (non lawyer), it was an error to find that the police officer had an obligation to inquire as to that purpose. The court found that there was no authority to support the submission that a request to speak to a third party made in the context of a discussion around the right to counsel requires the officer to either facilitate contact, make contact or to ask the detainee the purpose of that proposed contact, relying on R. v. Cheema, 2018 ONSC 229, para 31, R. v. Adams, 1989 CanLII 7161 (ON CA), [1989] O.J. No. 747 (OCA) and R. v. Zoghaib, [2006] O.J. No. 1023, affirming [2005] O.J. No. 5947 (ONSC), at para., 1.
[32] The jurisprudence is clear that unless the detainee advises the police that the reason why they wish to contact a non-lawyer third party, such as a family member, is so they can locate or retain a lawyer, there is no obligation on the police to provide a reasonable opportunity to contact the non-lawyer third party and no violation of s. 10(b) will result as a consequence of the police not facilitating contact with the third party in those circumstances (Zoghaib, at para. 28, 33, 36, 39, 51, and 52; R. v. Persaud, 2020 ONSC 3413, at paras. 112, 113, 115; R. v. Antoninas, 2014 ONSC 4220, at para. 94).
[33] Furthermore, if a detainee is not diligent in advising they wish to consult with a lawyer, absent special circumstances, relating to the detainee’s ability to have understood the right to counsel, the “correlative duties of the police are suspended” (Zoghaib, trial decision, at para. 53, citing R. v. Brydges, 1990 CanLII 123 (SCC), [1990] 1 S.C.R. 190, at p. 204; Silvajun, at para. 20).
[34] The special circumstances referenced in Zoghaib relate to situations in which the detainee has language barriers or “subnormal mental capacity”, such as in the case of R. v. Evans, 1991 CanLII 98 (SCC), [1991] S.C.J. No. 31, neither of which are applicable here. The trial judge found that Mr. Poptelecan was upset and confused, but not that he was too impaired to understand the caution or his right to counsel, or that he had language barriers or cognitive difficulties. Indeed, the trial judge recognized that at the roadside, Mr. Poptelecan said he understood the caution and his right to counsel “very well”, did not want to speak to any lawyer, did not want to give a breath sample and was not going to say anything. Mr. Poptelecan understood he had a right to contact counsel. However, he was uncertain about whether to contact a lawyer and wanted to speak to his sister. In the end, he declined to advise whether he wanted to speak to a lawyer, duty counsel or have no lawyer. He then consulted with duty counsel arranged for by P.C. Robertson before going for the breathalyzer test.
[35] In Richfield, an impaired driving case, the accused was acquitted by the trial judge on the basis that he was not permitted to contact the lawyer of his choice, contrary to s. 10(b) of the Charter. In that case, the accused had provided the name of a particular lawyer, and the police placed a phone call to that lawyer. However, with the two-hour window for taking a breath sample closing, and no call back from the lawyer, the police provided him with the opportunity to speak with duty counsel. The Court of Appeal held:
The trial judge in this case failed to appreciate the significance of the availability of duty counsel as a factor in determining whether the appellant exercised his right to counsel with reasonable diligence in making his ruling that there was a breach of the appellant’s s. 10(b) Charter rights. In so doing, the trial judge committed a palpable and overriding error.
[36] In this case, the trial judge did not make the finding that the Respondent failed to understand his right to counsel due to special circumstances or that the police should have taken more steps to better explain those rights. Rather, the trial judge found that the Respondent could not decide whether to retain a private lawyer, duty counsel or no lawyer, and that he wanted to contact his sister in order to decide whether and how to retain counsel.
[37] Therefore, the trial judge focussed on the first implementational duty, and whether the Respondent had been afforded a “reasonable opportunity” to exercise his right and found that it should have been obvious to the police that the reason why Mr. Poptelecan wanted to contact his sister was to discuss whether and how to retain a lawyer. As stated, however, this right, however, is subject to the Respondent exercising due diligence.
[38] However, the trial judge also made findings that P.C. Robertson was unaware that the purpose of the requested telephone call with the Respondent’s sister might be to obtain the name of a lawyer or to discuss the issue of whether or not to retain a private lawyer, duty counsel, or no lawyer, and that the police acted in good faith. Rather, as stated, the trial judge drew an inference from the context of the discussions between the Respondent and the police officers that the purpose of his requested telephone call was to discuss whether and how to implement his right to counsel.
[39] As stated, the trial judge made errors of law and overriding and palpable error in misapprehending the evidence on a material fact that would have affected the outcome of the trial.
[40] The trial judge erred in finding that the police violated Mr. Poptelecan’s s. 10(b) Charter right to counsel of choice when Mr. Poptelecan never expressly asserted that right or advised the police of the reason why he wanted to contact his sister. Mr. Poptelecan failed to act with the requisite due diligence. This is an error of law for the following reasons.
[41] First, the trial judge imposed an obligation on the police to facilitate contact with the Respondent’s sister, as a non lawyer, with respect to whether to hire a lawyer and how to do so. The ability to obtain advice as to whether or not to hire counsel of choice from a non lawyer does not fall within the scope of the Respondent’s Charter protected right to counsel in the first place.
[42] Second, the trial judge effectively imposed an obligation on the police to have either inquired as to the purpose of the proposed telephone call (despite the finding that P.C. Robertson did not have that obligation), or imputed knowledge to the police that the purpose of the proposed telephone call with the sister was to seek counsel based on the context of the discussions surrounding the right to counsel, but in the absence of any direct assertion of the right to counsel. The trial judge inferred that the Respondent asserted his right to counsel by merely asking to speak to his sister, in the face of a finding that the police did not know the purpose of the proposed telephone call. The lack of knowledge on the part of the police that the Respondent may have wanted to call his sister to obtain a lawyer did not trigger the implementational duty on the police to provide a reasonable opportunity to assert that right by facilitating the requested telephone call.
[43] Furthermore, the trial judge made an overriding and palpable error by inferring that the purported purpose of the requested telephone call was to obtain advice from the sister as to whether and how to exercise the right to counsel and, if so, whom to hire, and imputing this inference to the police to trigger their duty to implement. This is evident from the trial judge’s observation that P.C. Robertson had an obligation to “listen” to Mr. Poptelecan and entertain the possibility that this was the purpose of his request, as surmised by the trial judge from the surrounding conversations which evolved around his right to counsel. However, there was no direct evidence before the trial judge upon to base the conclusion that Mr. Poptelecan would have used the telephone call to implement his right to a lawyer of his own choosing.
[44] By finding that the police should have entertained this possibility, the trial judge was, in effect, either requiring that the police make an inquiry of Mr. Poptelecan as to the reason why he wanted to speak to his sister or to know what Mr. Poptelecan was thinking without him disclosing why he wanted to speak with her. There was no obligation on the police, in the circumstances of this case to have made the inquiry of Mr. Poptelecan. The trial judge’s imputation of the inference as knowledge on the part of the police sufficient to trigger the duty to implement constitutes a misapprehension of the evidence leading to an overriding and palpable error of law.
[45] In the circumstances, whereby Mr. Poptelecan did not advise that he wanted to contact a lawyer (and indeed advised at the roadside that he did not want to speak to a lawyer or duty counsel, at least not at that time), provide the name of a lawyer, request information to find a lawyer, or advise that he wanted to call his sister to obtain the name of a lawyer, the police were correct to proactively facilitate a consultation between the Respondent and duty counsel. Mr. Poptelecan was not obliged to consult with duty counsel. However, he took advantage of the opportunity, and with the benefit of that legal advice, proceeded to provide breath samples. As stated, there was no evidence, or finding, that Mr. Poptelecan communicated to any police officer that he wanted to speak to a lawyer, or that, having consulted with duty counsel, that he thereafter wanted to speak with his own private lawyer.
[46] Accordingly, the acquittal cannot stand.
[47] The appropriate remedy is to order a new trial with the benefit of this decision.
[48] In the alternative, if there was a breach of Mr. Poptelecan’s s. 10(b) Charter right, I find that the trial judge made an error of law in her s. 24(2), Charter analysis.
[49] The court owes considerable deference to the trial judge’s assessment under s. 24(2) of the Charter unless the trial judge has not considered the correct factors, made unreasonable findings or a palpable and overriding factual error (R. v. McGuffie, 2016 ONCA 365, at para. 64; R. v. Vine, 2022 ONSC 3297, at para 16; R. v. Ferose, 2019 ONSC 1052 at para 30).
[50] Further, no such deference is owed when the appellate court disagrees with the trial judge’s finding of a Charter breach (R. v. Zacharias, 2023 SCC 30, at ar. 65; R. v. Beaver, 2022 SCC 54, at para. 118; R. v. Manchulenko, 2013 ONCA 543, at para. 94).
[51] The trial judge stated the correct legal principles for exclusion of evidence under s. 24(2) applying the test as set out in R. v. Grant, 2009 SCC 32, [2009] 2 SCR 353. The trial judge weighed at each stage of the Grant analysis whether the admission of evidence would bring the administration of justice into disrepute.
[52] First, the trial judge found that with respect to the first branch of the Grant test, the police violation was made in good faith, but the failure not to allow him to contact his sister was a serious breach which pulled “at least moderately”, if not more, in favour of exclusion (at p. 21, Reasons).
[53] Second, the trial judge found that the impact on Mr. Poptelecan’s Charter right was moderate. The trial judge acknowledged that breath tests are a minimally intrusive form of evidence collection and that “even though he [the Respondent) spoke to duty counsel, this was a case in which Mr Poptelecan should have had an opportunity to contact counsel of choice” and therefore “pulls again moderately in favour of exclusion” (at Reasons, p. 22).
[54] Third, the trial judge found that the proposed excluded evidence was reliable and compelling, should be decided on the merits, and the indication of the high blood alcohol concentration “pulls decidedly in favour of having this case decided on its merits”.
[55] Ultimately, the trial judge found in “this unique case,” that admitting the evidence would bring the administration of justice into disrepute as the police must “understand and advert to the implementational requirements of the critical rights of detainees to consult with counsel of choice”.
[56] In my view, the trial judge failed to properly consider the fact that the Respondent did speak to duty counsel in advance of providing the breath samples (combined with the trial judge’s acknowledgment that breath samples are minimally intrusive). This factor, in my view, pulled in favour of inclusion of the impugned breath sample evidence as the impact on Mr. Poptelecan’s Charter rights was slight (Ferose, at paras. 72-75; R. v. Lombardi, 2020 ONSC 4772, at paras. 10-31; Richfield, at paras. 16, 18).
[57] On balance, in the event that the Respondent’s Charter right to counsel of choice was violated, and I have found it was not violated, the trial judge made an error in law by failing to properly consider the factor that the Respondent obtained independent legal advice from duty counsel prior to giving the breath sample and did not complain about the quality of that advice. In my view, the exclusion of the breath sample evidence was a disproportionate remedy because the alleged Charter violation and impact were minimal. When weighing the three Grant factors against the administration of justice, I find that the breath readings evidence should not be excluded under s. 24(2) of the Charter, as to do so would bring the administration of justice into disrepute.
[58] The acquittal is set aside, and a new trial at the Ontario Court of Justice is ordered.
S. VELLA J.
Released: July 28, 2026
CITATION: R. v. Poptelecan, 2026 ONSC 4399
COURT FILE NO.: CR-25-10000076-00AP
DATE: 20260728
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
Appellant
– and –
DOREL POPTELECAN
Respondent
REASONS FOR DECISION
ON
SUMMARY CONVICTION APPEAL
S. VELLA J.
Released: July 28, 2026