Police officer stopped accused as part of stop check program, smelled beverage alcohol, and noted that his eyes were glossy. Accused failed roadside screening test, was arrested, and was informed of his right to counsel and availability of legal aid. He declined to call lawyer but said he needed to go to bathroom. Accused was transported to police station, where he was allowed to go to bathroom and then provided breath samples that showed he was over legal limit. Trial judge held that accused’s rights under s. 10(b) of Canadian Charter of Rights and Freedoms were not infringed and admitted certificate of analysis. Accused was convicted of driving with excessive alcohol and appealed on basis that his right to counsel under s. 10(b) of Charter was breached. Appeal dismissed. Accused was convicted of driving with excessive alcohol and appealed on basis that his right to counsel under s. 10(b) of Charter was breached. Trial judge did not err in law in finding that accused’s right to counsel under s. 10(b) was not breached. Officer clearly gave accused his right to counsel, explained what that meant, and offered to provide list of lawyers. Accused did not indicate that he was under impression he had to choose between bathroom or exercising his right to counsel, or that he was so overcome by need to urinate that he could not focus his mind on right to counsel. Accused gave no indication that he did not understand process, and at no time indicated any interest in calling lawyer. Trial judge’s findings that accused clearly declined to take steps to engage his right to counsel were supported by evidence. There was no evidence that accused was denied right to counsel or that he took steps to invoke his Charter rights. While accused had pressing need to urinate, there was no evidence that his attention or ability to understand was in any way compromised. Evidence was reasonably capable of supporting trial judge’s conclusion.
R. v. DaFonte (July 5, 2016, Ont. C.A., Doherty J.A., K. Feldman J.A., and David Brown J.A., CA C59811) Decision at 247 A.C.W.S. (3d) 811 was reversed. 269 A.C.W.S. (3d) 55.