In the City of Ajax in December 2015, a man was charged with operating a motor vehicle while his blood alcohol concentration (BAC) exceeded the legal limit of 80 milligrams of alcohol per 100 millilitres of blood (‘over 80’). At the trial, the defence claimed that several of the accused’s Charter rights had been violated by police officers during the arrest process and therefore, all evidence obtained by the police following the defendant’s arrest should be excluded pursuant to the Canadian Charter of Rights and Freedoms s.24(2).

Specifically, the defence claimed that the following Charter rights were infringed.

  1. The accused’s right to be secure from unreasonable search and seizure were infringed because, when the arresting officer made the ASD breath demand, he did not form a reasonable suspicion that the accused had alcohol in his body. Consequently, the officer did not have reasonable grounds to conduct the search.
  2. The accused’s right to counsel was infringed because the officer did not immediately re-state the man’s right to counsel after finding marijuana in the accused’s truck and then arresting him for the additional charge of possession of marijuana.
  3. A further infringement of the accused’s right to counsel occurred when the officers did not take reasonable steps to enable the accused to speak to counsel of his choice before attempting to elicit incriminating information from the accused, including the breath samples.

The Crown disagreed with the above Charter issues raised by the defence, with the exception of the breach pertaining to the marijuana charge (a charge which was subsequently dropped); however, the Crown argued that since this infringement was “fleeting and technical” and had no real impact on the accused, it did not justify excluding reliable evidence needed in the prosecution of drunk driving. The Crown also asserted that even if the breaches claimed by the defence occurred, the officers were acting in good faith and the breaches did not justify excluding the evidence for the serious DUI offence. 

The R. v. Grant Case

In the 2017 trial, R. v. Grant, the Court considered the following issues.

  1. Whether the Crown has proven, on a balance of probabilities, that the arresting officer had a reasonable suspicion that the accused had alcohol in his body when he made the ASD demand.
  2. Whether the defence has proven, on a balance of probabilities, that the accused’s right to counsel of choice was breached.
  3. Whether the evidence should be excluded as a result of any of the Crown’s breach. 

Background and Analysis

A police officer pulled over the accused after observing him driving somewhat erratically, including weaving in his lane and then driving onto the curb while making a sudden U-turn. While conversing with the accused, the officer noted that the man had glossy eyes, responded slowly to a request for his documents, slurred his speech and there was a faint odour of alcohol. Based on the totality of his observations, the officer made a demand that the accused provide a breath sample for analysis into an Approved Screening Device (ASD). And, when this breath test registered a ‘fail’, the accused was arrested and a demand was made to undergo further breath analysis at the police station. The breath samples later provided for the Intoxilyzer test at the police station indicated that the accused’s BAC was well over two times above the legal limit.

Upon analysis of the circumstances that took place after the accused arrived at the police station, Justice Konyer expressed his concern whether the arresting officers complied with the informational aspect of the accused’s right to counsel. One of the arresting officers simply told the accused he was under arrest for “exceed”; and although this statement may have implied an arrest for a drinking and driving offence, such vague wording failed to meet the legal obligation to tell a detained or arrested person the specific reason for their arrest so that they may make a fully informed decision on how to assert their right to counsel.

The accused was also not properly informed that he had the right to wait while police made efforts to contact his lawyer. In interactions between the police and the accused, he asked officers for advice on exercising his right to counsel, but they said nothing to discourage his expressed belief that the police prefer that he consult with duty counsel rather than his own lawyer. As a result, the accused seemingly chose to speak to duty counsel because he believed that the officers felt it was his best course of action. Finally, the accused clearly and repeatedly told the officers that he was dissatisfied with duty counsel and preferred his own lawyer – an issue that was never addressed by the police.

Justice Konyer referred to R. v. Sinclair (2010), where the Supreme Court held that “police may be required to provide an additional opportunity to consult with counsel where circumstances arise that call into question the detainee’s understanding of the right”, such as when a detainee waived his right to counsel but may not have understood his right.

In the current case, Justice Konyer found that the arresting officers should have clearly stated to the accused that he had a right to call his own lawyer, and then the investigation should have been held off while the accused was given a reasonable opportunity to reach his lawyer. The judge further concluded that the officers did not act diligently by taking reasonable steps to properly inform the accused of the reason for his arrest and ensure that he could freely make his choice of duty counsel; nor did they address his complaints about duty counsel. On these grounds, the judge found that the defence established a breach of the accused’s right to counsel.

Given the established infringement of Charter rights, the Court was required to determine whether admitting the evidence of the accused’s breath samples would bring the administration of justice into disrepute. In order to decide this question, pursuant to the Charter s.24(2), a judge must “assess and balance the effect of admitting the evidence on society’s confidence in the justice system” based on a three-throng inquiry. First, the court must consider the seriousness of the Charter-infringing conduct. Second, the court must weigh the impact of the breach on the accused’s Charter-protected interests. Third, the court must consider society’s interest to decide the case on its merits.

On the first question, Justice Konyer judged the police conduct to be serious. He found that several police officers “wilfully ignored the need to take steps to ensure that was provided with clear information relevant to his choice of counsel”. This determination favours exclusion of the evidence.

Secondly, Justice Konyer noted that the accused did speak to duty counsel and there was no evidence that he didn’t receive competent and independent legal advice. Therefore, he concluded there was only a minimal impact on the accused’s Charter-protected interests, which favours admission of the evidence.

On the third question, Justice Konyer believed that exclusion of the reliable and unchallenged Intoxilyzer readings would deprive the public of an adjudication of a serious criminal charge on its merits. This factor favours admission of the evidence. 


Although the judge concluded that two of the three lines of inquiry favoured admitting the evidence in this case, he found that this was outweighed by the “need to disassociate the justice system from the wilful and ongoing disregard shown by multiple officers for rights”. On this basis, Justice Konyer decided to exclude the evidence. And, without evidence of the accused’s blood alcohol concentration, the ‘over 80’ drunk driving charge was dismissed. 

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If you have been charged with a drinking and driving-related offence, talk to a highly skilled DUI lawyer at Kruse Law. Our vast experience in defending DUI cases ensures that you will receive the most informed advice and zealous defence, achieving the best possible result for your case. Contact us today.

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