Courthouse: Ontario Court of Justice St.Catherines
Counsel: Jordan Peach
Date of Judgment: June 5, 2026
Background
Police responded to complaints of a vehicle on the side of the road with driver asleep at the wheel. Police responded, woke Mr. T and began an impaired driving investigation. Police demanded Mr. T provide a sample of his breath into an Approved Screening Device, which registered a reading of 0. Police still suspected Mr. T was impaired and shifted their focus to impaired by drug. Police called for a Drug Recognition Expert (DRE) to conduct roadside testing and held Mr. T roadside for approximately 30 minutes waiting for a DRE to arrive.
The Issue
The DRE arrived, conducted roadside screening and concluded Mr. T was impaired by cannabis. Mr. T was arrested and taken to the station for further testing. At the station, Mr. T provided a named counsel of choice. Police indicated that lawyer was contacted but there was no answer or call back. After only 6 minutes, police contacted Duty Counsel without advising Mr. T that he had the right to wait a reasonable time for his counsel of choice to call back.
After speaking with Duty Counsel, Mr. T conducted a full Drug Recognition Exam, including providing a urine sample, where it was concluded Mr. T was impaired by cannabis. Mr. T was advised paperwork would be prepared and he would be released from the station as soon as possible. Mr. T was placed in a holding cell for 4 hours after testing before he was released.
The Strategy
Counsel Jordan Peach successfully brought an application pursuant to sections 9, 10(b) and 24(2) of the Charter to have the Drug Recognition Exam and urinalysis results excluded from evidence. The Court found that the officers detained Mr. T roadside while waiting for the DRE to arrive without providing rights to counsel, breaching Mr. T’s right to counsel under section 10(b) of the Charter. The Court found that police further breached Mr. T’s right to counsel by failing to advise Mr. T he had the right to wait to speak with his named counsel of choice. Finally, the Court found that Mr. T’s s.9 Charter right not to be unlawfully detained was also breached by police holding Mr. T at the police station for 4 hours after testing was completed with no justification for doing so.
Result
After determining that Mr. T’s section 9 and 10(b) rights had been breached, the Court excluded the results of the Drug Recognition Exam pursuant to section 24(2) of the Charter and Mr. T was acquitted.