Ontario Court of Justice
Central West Region Brampton, Ontario
Between:
HER MAJESTY THE QUEEN
-and-
AMALITA KHONGWIR
Reasons for Judgment
Duncan J.
Facts
1The defendant is charged with exceed 80. The sole issue is whether there was a breach of her right to consult counsel and if so, whether breath test results should be excluded.
2The defendant was stopped at a Christmas RIDE check-stop at 11:52 pm on December 15, 2012. She had had some wine at an office Christmas party. She failed the ASD and ultimately, at 1:17 and 1:40 am, provided samples of breath betraying 120 milligrams of alcohol in 100 millilitres of her blood.
3Before testing, she spoke to duty counsel for 18 minutes, between 12:40 and 12:58 am. The defendant testified that she spent much of that time discussing immigration ramifications of her arrest and possible charges. She said that she and duty counsel had moved on to some aspects of her more immediate predicament when the arresting officer came into the room, spoke sternly to her to the effect that she had had enough time whereupon she terminated her conversation. [1] She testified:
Q. Okay. What happened in the middle of your conversation with, with the lawyer; what happened?
A. Well, I actually was not talking. Like, so I was – when I look at the door, I saw actually the arresting officer, like, looking in, so I thought, like, maybe I was taking too long.
Q. Okay. And when he was looking in, can you describe that? How many times did he look into the room?
A. Probably twice.
Q. Okay.
A. Yeah, it was twice, and then the last time he – I didn't even notice him looking. I just – he opened the door, so I turned back because by that time, during that time I was talking, like my back was behind the door, so I, I didn't see him peeking in. I just heard the door being opened.
Q. Okay. And so when the door opened, what, what, what happened? What did the – what, what happened?
A. The arresting officer said, okay, it's taking too long, and he said that that was the longest counsel he's ever encountered.
Q. Did he tap on the ….window?
A. No. I heard the door being opened, so I turned back, and so when I told the counsel that I have to go.
Q. Okay. And when you – when – at this time, when you were looking at the officer from your observations of the officer earlier up to this point where he's now entered the room, what was your impression of the officer?
A. That he wanted me to finish the conversation, and he was – I don't know, he looked angry, because I was scared…
Q. Okay.
A. …that – I didn't want to make him more angry. I just didn't want to get in more problems.
Q. Okay. And what did he do after he – after – you said, I got to go? Why did you say that?
A. I told the counsel I got to go because I thought I was taking too long. I didn't know I could take as much time as I wanted.
4The officer disagreed with the defendant's version. He said he peeked through the window periodically to see how it was going but did not do anything to rush her or open the door. He said she hung up on her own and walked towards the door. He asked her if she was satisfied with her conversation and she answered affirmatively. The defendant did not recall that question being asked.
5The defendant, 35, is from India. She has been in Canada since 2008 and is a permanent resident. She was a doctor and ob-gyn specialist in India but has not qualified or been certified to practice medicine in Canada, though she is hopeful of being able to do so in the future. The potential impact of the arrest on her professional status and her ability to remain in Canada were foremost in her mind when she spoke to duty counsel.
6I am satisfied on a balance of probabilities that the defendant's conversation was interrupted by the officer opening the door and she then ended the call much as she has described. In coming to this conclusion, I take into account that the arrest and events at the police station were unique and significant events in the defendant's life and she purported to have a clear memory of what occurred and what was said. By contrast, those events were more or less routine occurrences for the officer and he had no notes of the details surrounding the termination of the call. To be clear, I am satisfied only that he looked into the room, saw that she was not speaking and then opened the door. He entered minimally and said words to the effect that she was taking a long time. I am not satisfied that he specifically told her to end the call – she does not really claim that he did. I am also not satisfied that the officer was angry and harsh in the way he spoke to the defendant. Nevertheless, I am satisfied that the officer's interjection lead to the defendant ending her call somewhat earlier than she might otherwise have done [2].
7Finally, I find that the officer did make the inquiry as to whether the defendant was satisfied with her consultation. He testified that it is his practice to do so with every accused and there is no reason to think that he would not have done it in this case. The defendant answered affirmatively.
Right to Counsel: How Long?
8Mr. Kwok argues that a detainee has a right to consult counsel for "as long as he wishes" and that any interruption or termination amounts to a breach of the right to counsel. [3] I cannot accept such a proposition. With respect, I think it is self-evident that it cannot be right.
9The great bulk of jurisprudence dealing with the question of the right to retain and instruct counsel arises in the context of a detainee attempting to make contact with counsel. In this context, the law has uniformly held that the right is not absolute but rather that the police obligation is to provide the detainee with a "reasonable opportunity" to exercise the right: see most recently R v Willier, 2010 SCC 37, at para 33; R v Manchulenko, 2013 ONCA 543, at para 65. By contrast, somewhat surprisingly, there is almost no case law dealing with the question of what is a reasonable duration for that consultation, once contact has been made. [4] However, I cannot think of any reason why the same standard should not apply. Accordingly, in my view a detainee is entitled to a consultation of such duration as to provide him with a reasonable opportunity to obtain the legal advice he requires.
10Invariably, when the law sets a standard of reasonableness, it is a fluid and flexible one that varies from case to case depending on the circumstances. I would suggest that those circumstances will include consideration of the situation that has given rise to the need for legal advice and the circumstances of the detainee – his experience, intelligence, sobriety and any other relevant personal factors.
11Dealing with the latter circumstances first, the defendant is a mature woman of superior intelligence. She has no language difficulties. While she is presumably inexperienced in dealing with the law and police, there is no suggestion that she misunderstood or was confused as to what was occurring. Though under arrest for over 80, there is no allegation or evidence that she was intoxicated.
12As to the situation, this was a routine detention for breath testing following a RIDE stop. There was no fatality, injury, accident or complicating circumstance. But Mr Kwok tells me in submissions that it is his practice when consulted as private counsel in this situation to cover every aspect of the law on drinking and driving – he gave the specific example of bolus drinking – even if such an issue is not apparent in the case at hand. He recognizes, I think, that other counsel may not be so thorough, but argues that a detainee has a constitutional right to such an expansive consultation and advice if he asks for it and the lawyer is prepared to give it. Again, I must disagree.
13At one time, the wisdom and practicality of inserting lawyers into this type of police investigation was very controversial. Even today, a good argument could be made against it: See Hogg: Constitutional Law of Canada 4th edition P 1153) [5]. The Supreme Court of Canada has decided otherwise but at the same time, I think, has not abandoned the competing interests of law enforcement or ignored the practicalities of the situation. It has variously described the role of counsel in this situation as "limited in scope" (Bartle, para 62), and the advice as "immediate and preliminary" (Prosper, para 19), or "immediate but temporary" (Brydges, para 17). In my view it was never intended that this immediate consultation address the broad range of topics and implications that might arise from the arrest, charge, trial and possible conviction – much less that the public pay for the service [6] and that the police hold off while such expanded consultation takes place.
14The question then is whether there was a reasonable opportunity given for the defendant to receive the type of immediate core advice required and contemplated in this situation – the legal obligation to provide samples; the consequences of refusal; the right to silence and the right to decline to perform physical tests. Further, while not required in the same sense of being needed by the detainee to make a decision, advice regarding release and administrative licence suspension might also be seen as having some immediacy as well. There may be other areas that I have missed. I have no doubt that duty counsel have a check list for the items that should be covered. But whatever be the precise content of the necessary immediate core advice, in my view the law does not grant a reasonable opportunity to go far beyond this core. [7] So viewed, I am satisfied that the 18 minutes in this case provided a reasonable opportunity for the defendant to consult counsel and receive the necessary advice with respect to the matter at hand.
15The defendant asserts that most of her consultation was devoted to her immigration concerns. I am not prepared to accept that, particularly in the absence of confirming evidence from duty counsel. I think it is highly unlikely that duty counsel would permit himself/herself to be lead into this area without first covering the basics. Beyond that, even if it were true, it would not matter since the question is whether the defendant was given a reasonable opportunity - not whether advantage was taken of that opportunity. If she was given a reasonable opportunity but squandered it, there is no Charter violation.
Conclusion
16There was no breach of the right to counsel. The breath test results are admissible. The case is proven. The defendant is found guilty.
May 9, 2014
B Duncan J
L Kwok for the defendant
R Levan for the Crown
Footnotes
1Duty counsel was not called as a witness, though an adjournment was granted to provide an opportunity to do so.
2I have approached the 10b issue as if what occurred amounted to the officer terminating the call, whereas the facts as found are considerably more benign. The defendant herself ended the call; the officer's action was a "hurry-up" and not an outright termination. It was not abrupt or high handed. Further the defendant did not ask for more time and affirmed that her consultation was satisfactory. All of these factors would have had a bearing on the exclusion question under 24(2) if it had been reached.
3No authority is given in support of this proposition except R v Robichaud, [2013] AJ No 964 (Alta PC) at para 29, where the Court refers to such a right as "settled law" but cites none of it.
4Professor Stuart writes that "the police cannot establish arbitrary limits although the detainee is not automatically entitled to two full hours for the consultation" – though it is not clear whether he is referring to contact or duration or both: Charter Justice in Canadian Criminal Law 5th ed P 370
5"It is difficult to identify any civil libertarian values that are served by the definition of detention that is applied in Therens, Thomsen, Hufsky and Simmons. These cases introduce a right to counsel into every situation, however brief or routine, in which there is a duty to comply with a demand by a police officer (or other official). In every case, the detained person has no choice but to obey the demand, and legal advice could only confirm that duty to obey. There is nothing that counsel could do to protect the innocent, who will in any case be exculpated by the breath test or other inspection or search that he or she is required by law to undergo. The sole effect of the right to counsel seems to be to create opportunities for delay by those who have reason to fear the outcome of the demanded test. Either that delay must be filled by custodial requirements that absorb police resources or the police must take the risk that incriminating evidence will disappear. Would it not be better to restrict the term "detention" to those official restraints that are neither routine nor transitory and in which the detained person faces choices that could be assisted by legal advice?"
6Free Duty Counsel is available to any detainee without financial qualification. Should the public pick up the tab if the Sultan of Brunei wants to hear a lecture on the finer points of the bolus drinking defence?
7Of course the detainee and counsel are free to discuss anything they choose. The point is that the police are not obliged to hold off while they do and the detainee cannot complain if the consultation is terminated.