Challenge
The defence focused on whether police meaningfully respected Ms. T’s right to counsel after her arrest.
Police stopped Ms. T near the Don Valley Parkway, arrested her for impaired driving and took her to the station. She immediately asked to speak with a specific lawyer. Police attempted contact once but proceeded with breath testing shortly afterward, despite:
- No follow-up attempts to reach counsel
- No confirmation that Ms. T wished to waive her right
- No clear explanation that she could consult duty counsel
Stops along the DVP usually go to the Toronto courthouse; our page for North York drivers explains how those cases proceed.
Our Process
- Planning the case. We reviewed the booking video, phone logs and breath room recordings to determine how much time passed between the request for counsel and the breath demand.
- Assessing compliance. We evaluated whether police met their constitutional obligation to provide a reasonable opportunity to consult counsel of choice. That meant examining not just whether an officer placed a call, but whether the effort was genuine.
- Cross-examination. In court, the arresting officer conceded that nobody made a second attempt to reach the requested lawyer.
- Charter argument. We argued that proceeding prematurely undermined the purpose of the right to counsel. The protection exists to ensure informed decision-making before a person provides potentially incriminating evidence.
Result
The court concluded that police failed to provide a reasonable opportunity to access counsel of choice before administering breath tests. It excluded the breath samples.
With no admissible evidence of blood alcohol concentration, the prosecution stayed the charges.
Section 10(b) issues like this one sit at the centre of how breath evidence and Charter rights shape a defence. If you are weighing whether to contest your own charge, read about your chances of beating a DUI charge.
Every case is different, and past results do not predict future outcomes.