Ruling says accused did not exercise right to counsel with reasonable diligence
The Ontario Court of Justice allowed breath test evidence under s 24(2) of the Canadian Charter of Rights and Freedoms, although it acknowledged a violation of the right to freedom from unauthorized and unlawful searches under s. 8 of the Charter.
In R. v. Taylor, 2025 ONCJ 651, an individual called 911 and reported that a driver was unsteady on his feet and potentially impaired. Officers intercepted a vehicle matching the reported description.
A police constable spoke with the defendant driver and decided to issue an approved screening device (ASD) demand based on his observations. The officers arrested the defendant when he failed the test.
At the police station, officers did further testing with an approved instrument. Tests revealed truncated readings of 140 and 130mg of alcohol per 100ml of the defendant’s blood.
The defendant received a charge for an offence known as ‘80+’ – having a blood alcohol concentration (BAC) exceeding the legal limit of 80mg/100ml within two hours of ceasing the operation of a conveyance under s 320.14(1)(b) of the Criminal Code, 1985.
The Ontario Court of Justice accepted that the officers only made an approved instrument demand at the station after a long wait for a lawyer to return a call, thus failing to make the demand as soon as practicable as required by s. 320.28(1) of the Criminal Code.
Thus, the court held that the officers breached the defendant’s right to be free from searches not authorized by law or conducted pursuant to that law under s. 8 of the Charter. However, the court refused to exclude the breath test evidence under s 24(2) of the Charter or any other remedy.
The court explained that excluding reliable breath test evidence to remedy a technical breach caused mainly by the defendant himself would bring the administration of justice into disrepute.
Next, the court rejected the defendant’s remaining Charter applications. Regarding whether the officers had a reasonable suspicion to justify the ASD demand, the court saw no evidence of a s. 8 breach. The court deemed the demand lawful.
Regarding whether the officers arbitrarily detained the defendant by stopping him on the roadway near his residence, the court saw no breach of s. 9 of the Charter. The court described the detailed 911 call as a reasonable basis for the stop.
The court also saw no breach of the right to counsel under s. 10(b) of the Charter. The court acknowledged that the arrest or detention engaged s. 10. However, the court recognized the long-standing exception for roadside investigations, including ASD testing, of licensed drivers to check their sobriety.
The court determined that the defendant failed to exercise his right to counsel with reasonable diligence. Rather than considering other options that the officer had raised when his chosen lawyer was unavailable, the court pointed out that the defendant refused multiple offers to call duty counsel or another lawyer.
The court noted that the officers:
Given the evidence in its entirety, the court ruled that the Crown proved the charge beyond a reasonable doubt, specifically establishing that the defendant’s BAC within two hours of ceasing to operate his conveyance was 140mg/100ml.
Lastly, the court noted that the cell video evidence of possible vomiting before two breath tests left no doubt regarding the accuracy of the results. Thus, the court found the defendant guilty of the charge.
