Officer did not appear to appreciate extent of legal obligation to provide right to counsel

Criminal Law - Charter of Rights and Freedoms - Charter Remedies [S. 24]

Police officer received report of impaired driver asleep in running vehicle, which had rolled and collided with another parked vehicle. At scene, officer brought accused to police vehicle, where he observed indicia of impairment and questioned accused for four minutes before advising accused of right to counsel. Trial judge found officer breached accused’s rights under s. 10(b) of Canadian Charter of Rights and Freedoms by failing to properly advise accused of right to counsel after detaining him, but concluded that even after excluding additional evidence secured by officer in minutes following accused’s detention, he had ample reasonable and probable grounds to arrest accused and make breathalyzer demand. Trial judge refused to exclude breathalyzer results because violation of accused’s right to counsel was not particularly serious and had no impact on accused’s Charter-protected interests since officer still had necessary reasonable and probable grounds and evidence was reliable and important. Trial judge acquitted accused of impaired driving, but convicted accused of driving with excess blood alcohol level. Accused appealed. Appeal dismissed. Trial judge erred in taking into account his acquittal of accused on charge of impaired driving based on adverse credibility assessment of officer in his assessment of admissibility of breathalyzer results. Violation of accused’s right to counsel was serious. While officer was lawfully entitled to briefly detain accused for purpose of determining whether there was evidence to justify making breath demand, officer did not appear to appreciate extent of legal obligation to provide right to counsel and permissible scope of investigation prior to providing right to counsel, which aggravated breach. Charter violation had no impact on accused because officer had reasonable grounds to arrest accused and make breath sample demand, breathalyzer was non-intrusive procedure, and accused had opportunity to speak with counsel before providing breath samples. Breathalyzer results were reliable evidence vital to accurate determination of merits of case and societal interests in determination of criminal matter on its merits would be seriously undermined if evidence excluded.

R. v. Ndaye (2019), 2019 CarswellOnt 13580, 2019 ONSC 4967, Kenneth L. Campbell J. (Ont. S.C.J.); affirmed (2018), 2018 CarswellOnt 13752, 2018 ONCJ 557, Howard Borenstein J. (Ont. C.J.).

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