Nunavut court rejects counsel delay challenge in impaired driving case

The Nunavut Court of Justice rejected a driver’s claim that police breached her right to counsel, finding that roadside alcohol screening was completed promptly and that the later arrangements for a private legal call were reasonable.

Justice Mark Mossey convicted Ashley McCarthy of the offence commonly called driving “over 80” after refusing to exclude the breath evidence. He also found the impairment charge proven, but stayed it under the rule against multiple convictions arising from the same incident.

The reasons in R. v. McCarthy, 2026 NUCJ 6, are dated April 9, 2026, and record that the decision was delivered orally on April 7.

McCarthy had pleaded not guilty to both charges arising from a May 21, 2025 traffic stop in Iqaluit. Her Charter application and trial were heard together, with the arresting officer’s testimony and body-camera footage forming the evidentiary record.

Brief roadside screening had a distinct legal basis

McCarthy argued that police took nine minutes after detaining her to explain her right to counsel and nearly half an hour to provide meaningful access to a lawyer. She sought a declaration of a Charter breach and exclusion of both the roadside screening result and the later evidentiary breath samples.

She also questioned whether the officer had sufficient grounds to suspect alcohol consumption. Mossey distinguished mandatory screening under section 320.27(2) of the Criminal Code from a demand that depends on reasonable suspicion.

For mandatory screening, the officer must possess an approved screening device and be exercising lawful powers when making the demand. The judge found both requirements met: the officer carried the device to the vehicle and had lawfully stopped McCarthy over a defective rear light under Nunavut’s traffic legislation.

Mossey recognized that McCarthy was detained at the roadside. Ordinarily, section 10(b) requires police to inform a detained person of the right to counsel immediately. But the authorities he discussed permit a limited suspension during brief roadside sobriety screening, for no longer than reasonably necessary to carry out that process.

The screening was completed within five minutes of the officer’s first contact with McCarthy, despite an unsuccessful initial attempt to provide a sample. The judge found no unnecessary delay. That conclusion concerned the screening process, not a general entitlement to postpone counsel rights throughout an impaired-driving investigation.

Video established when rights were first explained

The body-camera recording showed that McCarthy was told of the failed screening result and her arrest at 2:21:09 p.m. She was first advised of her right to counsel at 2:21:40 p.m., 31 seconds later, while still beside her vehicle.

The officer repeated the advice after placing her in the police cruiser. The later explanation at 2:24 p.m. was not the first one, as the application’s timeline had suggested.

Mossey found that the 31-second interval satisfied the obligation to inform her promptly following the screening and arrest. McCarthy said at 2:25 p.m. that she wanted to speak to a lawyer.

Phone access and actual consultation were different events

Police first arranged care for children who had been passengers, then made a four-minute drive to the detachment. After a security search, McCarthy was given a private room, a telephone, instructions and information for contacting counsel at 2:42 p.m.

That was an opportunity to seek legal advice, not the time she actually spoke to a lawyer. She initially called a family member for help finding counsel. The officer then explained the available resources again and confirmed that the evidentiary breath samples would wait if she still wanted legal advice.

Attempts to reach legal aid initially went unanswered. The officer contacted its after-hours line and arranged a callback. McCarthy was put on the phone with legal aid at 3:16 p.m.; the call concluded at 3:35 p.m. She confirmed that she had spoken to counsel and understood her rights before police proceeded with the breath-testing process.

The Crown had to justify the delay

The judge applied the requirement that police facilitate requested access to counsel at the first reasonably available opportunity. The Crown bore the burden of showing that a delay was reasonable in the circumstances; police also had to refrain from further investigative steps to elicit evidence until the requested access was provided.

The defence argued that McCarthy could have used her phone from the cruiser at the scene. Mossey rejected that argument on the circumstances before him, including her restrained hands, the public setting and the practical difficulty of obtaining confidential advice there.

He considered the nine-minute interval between completion of the childcare-arrangement call at 2:32 p.m. and the start of efforts to facilitate counsel access at the detachment at 2:41 p.m. The short journey, security search and provision of an unrestrained, private setting supported the Crown’s explanation.

Mossey found no section 10(b) breach and denied both exclusion of the evidence and the requested declaration.

One conviction remained operative

The evidentiary breath readings were 180 and 190 milligrams of alcohol per 100 millilitres of blood. With that evidence admitted, Mossey found beyond a reasonable doubt that McCarthy had a blood-alcohol concentration exceeding 80 milligrams within two hours after she stopped driving.

He assessed impairment separately. Without expert evidence, the breath readings did not themselves prove impaired driving. The judge considered other observations, including unusually slow driving, drifting, failing to stop at a stop sign, the smell of alcohol and confusion over the vehicle’s gear position.

Although he found impairment proven, the Kienapple rule prevented two convictions from being entered for the same incident. The over-80 conviction remained, and the impairment charge was stayed rather than dismissed on its merits.

The reasons identify a minimum fine of $2,000 as a consequence McCarthy faced because of the elevated blood-alcohol reading. They do not set out an imposed sentence.