Expansion of Charter right under s. 10(b) was inconsistent with binding appellate authority

Acting on information from another driver, police stopped accused’s vehicle. Accused failed approved screening device test. Subsequent testing revealed blood alcohol levels of 150 and 130 mg of alcohol in 100 ml of blood. At trial accused alleged that his rights under ss. 8, 9 and 10(b) of Canadian Charter of Rights and Freedoms were breached and therefore breath samples and observations of accused should be excluded. Trial judge found that accused’s Charter rights were not violated and convicted accused of driving with excessive alcohol. Accused appealed. Appeal dismissed. Existing s. 10(b) rights advice met required Charter standard. Advice regarding resources available to identify and connect with private counsel is not routinely required. Duty only arises where individual circumstances require it in order to comply with implementational responsibilities under s. 10(b). Obligation to assist detainee to identify and locate private counsel must be based on request from detainee which reasonably requires police to assist in this regard. What was being proposed by accused represented significant expansion of Charter right under s. 10(b) which was inconsistent with binding appellate authority. Proposed expansion also raised real practical questions as to what information needs to be given to detainee.

R. v. Ruscica (2019), 2019 CarswellOnt 5815, 2019 ONSC 2442, M. McKelvey J. (Ont. S.C.J.); affirmed (2017), 2017 CarswellOnt 20448, 2017 ONCJ 864, Marcella Henschel J. (Ont. C.J.).

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