Right to counsel after arrest

Right to counsel after arrest

Overview

In R. v. Janjua, 2026 ONCJ 527, the Ontario Court of Justice considered charges of impaired driving and operating with a blood-alcohol concentration at or above 80 mg/100 mL following a single-vehicle collision. The accused was injured and taken to hospital, where breath samples registered 140 mg/100 mL and 130 mg/100 mL. However, the central issue was not his blood-alcohol concentration but it was whether the Crown could prove beyond a reasonable doubt that he had actually been driving the vehicle. 

The Court ultimately excluded the accused’s admissions because of a breach of his Charter right to counsel and dismissed both charges. 

What Happened

Police attended the collision shortly after 2:00 a.m. An officer told the accused and another man at approximately 2:07 a.m. not to go anywhere, which the parties agreed constituted detention. Minutes later, an EMS attendant asked who had been driving, and the accused responded that he was the driver. Yet police did not advise him of his s. 10(b) Charter right to counsel until approximately 2:33 a.m., after his arrest. 

Later at hospital, after speaking with duty counsel, the accused made further admissions to the breath technician that he had been driving. Importantly, the breath technician initiated the conversation but did not provide a new caution or reread the accused his right to counsel. 

Charter Analysis

Justice Silverstein found a clear breach of s. 10(b). Once detained, the accused was entitled to be informed of his right to counsel immediately. There was no valid reason for the approximately 20-minute delay, particularly because the officer had opportunities to provide the warning while awaiting EMS personnel. The Court characterized the breach as falling toward the more serious end of the spectrum. 

The Court also considered whether the admissions were protected because accident reporting can be statutorily compelled under Ontario’s Highway Traffic Act. That argument failed: the statements at issue were made to an EMS attendant and later to a breath technician, neither of whom was the person to whom the accused was legally required to make the accident report in the circumstances. The admissions therefore were not independently excluded under s. 7 of the Charter. 

The successful argument instead arose under ss. 10(b) and 24(2).

Why Even the Later Statements Were Excluded

A particularly important aspect of Janjua is that the original Charter breach affected not only the roadside statement but also the accused’s later admissions at hospital, even though he had spoken with duty counsel in the meantime.

The accused explained that he repeated his earlier admission because he had already identified himself as the driver and believed he needed to remain consistent. The Court accepted this evidence. Because the breath technician did not provide a fresh primary or secondary caution, the Court concluded there had been no sufficient “fresh start” to break the connection between the original Charter breach and the subsequent statements. 

Applying the Grant framework under s. 24(2), the Court found that the seriousness of the Charter breach strongly favoured exclusion and that its impact on the accused’s protected interests also favoured exclusion. Although the admissions were reliable and important to the prosecution, those considerations only mildly favoured admission. On balance, admitting the statements would bring the administration of justice into disrepute, so all three admissions were excluded. 

Why the Crown’s Remaining Case Failed

Once the admissions were removed, the Crown was essentially left with an eyewitness identification.

That evidence was insufficient. The witness had seen two men emerge through the driver’s door, gave generic and substantially identical descriptions of both men, and the Court was not satisfied that he had maintained continuous observation sufficient to reliably identify the accused as the driver. The Court also emphasized the recognized dangers associated with in-court identification evidence. 

Consequently, the Crown could not prove beyond a reasonable doubt that Mr. Janjua was the driver, and the charges were dismissed. 

Significance

The decision demonstrates that an impaired-driving prosecution does not turn solely on a high breath reading. The Crown must still prove every essential element of the offence, including identity as the driver.

It also illustrates the practical importance of Charter protections during the earliest stages of an impaired-driving investigation. A relatively short delay in providing the right to counsel can have significant consequences where an accused makes incriminating statements during that period. Moreover, later access to counsel does not necessarily cure an earlier breach where subsequent statements remain sufficiently connected to it.

Finally, Janjua shows the importance of challenging the prosecution’s evidence after improperly obtained evidence is removed. Here, exclusion of the admissions transformed what initially appeared to be a strong impaired-driving prosecution into one in which the Crown could not establish who was driving.

How Shankar Law Office Can Help

For clients facing impaired driving, over-80, refusal, or other driving-related criminal charges, Shankar Law Office can scrutinize the entire investigation rather than simply accepting breath results as determinative.

This can include examining when detention actually began; whether police immediately advised the client of the right to counsel; whether access to counsel was properly facilitated; whether statements were made before legal advice was available; whether later statements remained connected to an earlier Charter breach; whether police properly distinguished compelled accident reporting from a criminal investigation; and whether identification evidence actually proves who was operating the vehicle.

Where constitutional violations occurred, counsel can seek exclusion of evidence under s. 24(2) of the Charter and then assess whether the remaining evidence is capable of proving the charge beyond a reasonable doubt.

The practical lesson from R. v. Janjua is straightforward: a failed roadside test or elevated breath reading does not end the legal analysis. The manner in which police obtained the evidence, whether the accused’s Charter rights were respected, and whether the Crown can independently prove operation of the vehicle can fundamentally affect the outcome.

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