ONTARIO COURT OF JUSTICE

DATE: 2022 08 10 COURT FILE No.: Brampton 19-28018

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

MERYEM IFTIKHAR

Before: Justice P.T. O’Marra

Heard on: June 8, 2022 Oral Reasons for Judgment released on: August 5, 2022 Written Reasons for Judgment released on: August 10, 2022

Counsel: N. Jaswal, counsel for the Crown B. Daley, counsel for the defendant Meryem Iftikhar

P.T. O’Marra, J.:

Introduction

[1] On September 1, 2019, Ms. Iftikhar was charged with operating her motor vehicle with excess blood alcohol, contrary to section 320.14(1)(b) of the Criminal Code of Canada.

[2] Ms. Iftikhar pleaded not guilty before me. The Crown proceeded summarily. The trial and submissions lasted one day. The Defence brought a Charter application that alleged Ms. Iftikhar’s section 10(b) right of the Charter was breached. The Defence sought an order excluding evidence as a result of the breach. The trial proceeded in a blended voir dire fashion. The only witness called by the Crown was Constable Alszegi, who was both the arresting officer and the qualified breath technician. Ms. Iftikhar did not testify on the voir dire nor the trial proper.

[3] There were no issues raised regarding the reason for Ms. Iftikhar’s traffic stop, her subsequent detention at the roadside, nor with respect to the grounds, the wording, of the timing of both the roadside and formal breath demands. There were also no concerns raised regarding the lawfulness of Ms. Iftikhar’s arrest. The Defence conceded that the Intoxilyzer 8000C and the ASD were in proper working order. As well, both instruments were operated correctly. It was conceded that the tests were taken as soon as practicable despite several delays which were explained.

[4] That being the case, I will not spend a lot of time on the events at the roadside but focus more on the events in the breath room.

Overview of the evidence

[5] On September 1, 2019, at approximately 2:47 a.m., Constable Alszegi was operating his cruiser on general patrol, northbound on Mavis Road near Bristol Road when he observed Ms. Iftikhar operating her motor vehicle at a high rate of speed.

[6] Constable Alszegi paced Ms. Iftikhar’s motor vehicle at approximately 105-107 km/hr. The posted speed limit was 70 km/hr. After he caught up to Ms. Iftikhar’s vehicle, he observed her to slowly drift from one lane to the next without signalling. At this point he initiated a traffic stop for speeding and failing to signal during a lane change.

[7] Constable Alszegi approached the driver side window. Ms. Iftikhar was alone in the vehicle. He observed that her eyes were bloodshot. He explained his reasons for stopping her vehicle and asked for her driver’s licence. She searched all over the vehicle but could not locate her driving documents. Constable Alszegi detected an odour of alcohol on her breath.

[8] Constable Alszegi asked Ms. Iftikhar to exit her vehicle as he had a suspicion that she had alcohol in her body.

[9] At 2:51 a.m. Constable Alszegi read the ASD demand.

[10] Ms. Iftikhar advised the officer that she had consumed a glass wine approximately 10 minutes earlier.

[11] Constable Alszegi decided to wait 5 minutes to let any mouth alcohol dissipate before he administered the test to Ms. Iftikhar to get an accurate breath result. Constable Alszegi’s training taught him that if the subject has admitted to recently consuming alcohol, it is advisable to wait 15 minutes. If the subject has mouth alcohol; it may impact the accuracy of the reading.

[12] During the five-minute period, Constable Alszegi explained the testing procedure and demonstrated to Ms. Iftikhar the ASD.

[13] At 2:56 a.m., Ms. Iftikhar tried to provide a sample of her breath.

[14] After three failed attempts, at 2:58 am, Ms. Iftikhar provided a suitable sample of her breath into the ASD which registered a failure.

[15] At 2:58 a.m., Ms. Iftikhar was placed under arrest for operating her motor vehicle with excess blood alcohol. He also called his dispatch to arrange for Ms. Iftikhar’s vehicle to be towed and for another officer to assist.

[16] At 3:00 a.m., Constable Alszegi read to Ms. Iftikhar the rights to counsel and formal breath demand.

[17] At 3:02 a.m., Constable Alszegi completed the rights to counsel and the demand. Ms. Iftikhar wanted to call a lawyer from the roadside. Constable Alszegi explained that he could not make that arrangement at that point in time. Furthermore, he advised her that she would not have any privacy if a call was made from his cruiser. He advised her that she could call counsel at the police division.

[18] At 3:16 a.m., another officer arrived to assist in overseeing the towing of Ms. Iftikhar’s vehicle.

[19] Ms. Iftikhar was permitted to remove personal items from the vehicle.

[20] At 3:22 a.m., they left the scene and arrived at 22 Division at 3:39 a.m.

[21] After arriving at 22 Division, Constable Alszegi allowed Ms. Iftikhar to locate her lawyer’s number on her phone. At 3:45 a.m. Constable Alszegi called counsel of choice, Johnny Qadir, a criminal lawyer, and left a message. He provided details of the arrest and call back information.

[22] Constable Alszegi provided Ms. Iftikhar with information regarding the availability of duty counsel. Ms. Iftikhar agreed to try that option. At 3:51 a.m., Constable Alszegi contacted duty counsel and received an automated voice system and left a message. Duty counsel, Kate Brockman, called back. From 4:01 a.m. until 4:06 a.m., Ms. Iftikhar spoke privately with duty counsel.

[23] After she returned from her call with duty counsel, Ms. Iftikhar needed to use the washroom. Constable Alszegi stood outside the washroom and could hear Ms. Iftikhar vomiting.

[24] At 4:15 a.m., Ms. Iftikhar returned to the breath testing room. Upon returning to the breath room Ms. Iftikhar asked, “So Johnny did not call back? I can’t wait until he calls back, like…. I have to do this?” Constable Alszegi responded, “yes you have to do the test, but I want to explain to you a few things. We are not going to jump into this right away”.

[25] Constable Alszegi confirmed that he had left a message for Johnny Qadir and that she had spoken to duty counsel. He also explained that because she threw up, he was going to wait a few more minutes before she provided her first sample. Ms. Iftikhar asked if Johnny Qadir could be called a second time. At 4:16 a.m., Constable Alszegi called Johnny Qadir and left another message.

[26] At 4:22 a.m., Constable Alszegi cautioned Ms. Iftikhar and made a formal breath demand. He explained the process and procedure of providing a sample of her breath. He provided a mouthpiece, and which point Ms. Iftikhar stated: “My mouth feels kinda pukey.” At 4:25 a.m., Constable Alszegi provided Ms. Iftikhar a cup of water.

[27] After approximately six attempts, at 4:29 a.m., Ms. Iftikhar successfully provided the first sample of her breath which registered 97 mgs of alcohol in 100 mls of blood.

[28] In between the first and second tests, they engaged in some conversation.

[29] At 4:41 a.m. Ms. Iftikhar asked to use the washroom again.

[30] At 4:44 a.m. she returned to the breath room. After that she remarked that her stomach was “growling” and that she was hungry.

[31] After several attempts and a few more sips of water, at 4:55 a.m. Ms. Iftikhar provided her second sample of breath which registered 82 mgs of alcohol in 100 mls of blood.

[32] According to Constable Alszegi, Johnny Qadir never returned his phone messages.

Issues

[33] There are two issues for me to decide.

(1) Did Constable Alszegi violate Ms. Iftikhar’s rights under section 10(b) of the Charter by failing to afford her the tools to implement her right to counsel of choice and by steering her to duty counsel?

(2) Since Ms. Iftikhar vomited in the washroom and may have been regurgitating in the breath room, should Constable Alszegi have waited 15 minutes before permitting Ms. Iftikhar to provide any samples of her breath?

[34] I would like to deal with the factual argument raised by the Defence that Ms. Iftikhar may have been regurgitating in advance of the breath testing before I address the Charter application.

The Regurgitation Defence

[35] I find no merit in this argument. All I am left with is Constable Alszegi’s evidence on this point. Although it is clear from the evidence that Ms. Iftikhar vomited in the washroom, I have no positive evidence that leaves me in a state of reasonable doubt that she was regurgitating 15 minutes before she provided a breath sample. There was no evidence that she was burping or belching. Even though the taste in her mouth was “pukey” she was provided with water to clear out the taste. She complained about a dry mouth and her stomach was “grumbling” before the test.

[36] The officer testified that he intentionally kept Ms. Iftikhar talking and engaging to determine how she felt. At one point he asked her if she was “okay”.

[37] Finally, Constable Alszegi testified that the Intoxilyzer 8000C is equipped to address issues of mouth alcohol. Specifically, he referred to the slope and that the instrument is designed to distinguish breath alcohol from mouth alcohol.

[38] The Crown also submitted the “regurgitation defence” should be dismissed. The Crown argued that the Court only has Constable Alszegi’s testimony to rely on. There was no indication that in the breath room Ms. Iftikhar was regurgitating. I have watched the breath room video and there were no signs or any indication that she was regurgitating.

[39] It is also such that in the context of timing of the roadside sample where a suspect volunteers information that he or she has consumed alcohol within the last 15 minutes, or where there is reason for the officer to suspect the recent presence of mouth alcohol due to regurgitation, the officer may wait an appropriate period of time prior to administering the screening device. The police are not required to ascertain such information by posing questions to the suspect prior to administering the screening device. In the absence of such information, the police are entitled to administer the screening test without delay. Further, even where the police officer is told by the accused of recent consumption, if the officer has reason to disbelieve the suspect, then he or she is entitled to administer the test without delay. (My emphasis added)

[40] I am satisfied beyond a reasonable doubt that Ms. Iftikhar was not regurgitating to the point that she had mouth alcohol.

[41] I now turn to the Charter application.

The Charter Application

[42] The Defence argues that after leaving a message for counsel of choice, Constable Alszegi violated her right to counsel of choice by foisting or steering Ms. Iftikhar towards duty counsel and did not offer her an opportunity to seek out another lawyer by failing to provide tools to do so such as the internet, a lawyer’s directory or a third party.

[43] The Crown responded by arguing that Constable Alszegi did not violate Ms. Iftikhar’s Charter right in any way and the Charter application should be dismissed. Specifically, it was submitted that Constable Alszegi took reasonably diligent steps to implement Ms. Iftikhar’s right to counsel of choice and did not steer her to duty counsel.

The Law and Analysis

[44] Section 10(b) of the Charter provides that everyone on arrest or detention has the right to retain and instruct counsel without delay and to be informed of that right. The Supreme Court summarizes the obligations on the police as including an informational duty and if the detainee invokes his or her right to counsel, further implementational duties.

[45] In R. v. Willier, 2010 SCC 37, these obligations were summarized as:

(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;

(2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and

(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

[46] The issue in the case at bar deals with the detainee invoking her right to speak to counsel of choice, and then foregoing that right by deciding to speak to duty counsel.

[47] In Ontario, there is a 24-hour, 7 days a week duty counsel toll free number that police resort to when the detainee wishes to speak to a legal aid lawyer. It is often the case that police default to the “duty counsel option” when counsel of choice cannot be contacted.

[48] It is also well established that police can provide other means to put a detainee in touch with another counsel if counsel of choice is unavailable. Police have control over those means. In other words, police can provide a lawyers’ directory to the detainee or conduct a google search on the internet for a counsel that may be available. But that is not the only means; third parties such as friends and family members of the detainee can provide contact information of counsel.

[49] There are conflicting decisions on the implementational duties s. 10(b) imposes on police officers. Some focus on the most common situation in Ontario where the police are given the name and/or contact information of private counsel and take on the task of contacting that lawyer but are unsuccessful in doing so: R. v. Maciel, 2016 ONCJ 563; R. v. Doobay, 2019 ONSC 7272; R. v. O'Shea, 2019 ONSC 1514; R. v. Jhite, 2021 ONSC 3036. These cases suggest steps the officers should take to be Charter-compliant while acknowledging that each case is fact-specific.

[50] Other cases with the same scenario (lawyers name given but the officer unable to contact the named counsel) find that absent a request by the detainee to personally look for a lawyer, there is no requirement to offer the detainee the option of finding their own lawyer by accessing a phone book, lawyers' directory or the internet.

[51] In Wijesuriya, the accused gave the police the name and number of counsel. The officers left messages, but counsel did not call back. The officer asked her if she wanted to speak to duty counsel so that she could receive some sort of advice. The officer had no recollection of her responses but put her in contact with duty counsel. On Summary Conviction Appeal (SCA), Ricchetti J. rejected the notion that the police have an obligation to advise the detainee about contacting another lawyer and found no breach.

[52] In Persaud, the accused said he wanted to speak to counsel later. The officer asked if he had a specific lawyer in mind and was told that he did not and wanted to speak to duty counsel. He testified at trial that he thought he had a binary choice and was not permitted to find his own lawyer. On SCA, Akhtar J. rejected that there was an enhanced duty of the police where they undertook to contact counsel.

[53] In Ruscica, the accused was asked if he had a specific lawyer or wanted to speak to duty counsel. He said he did not have a specific lawyer and wanted to call duty counsel.

[54] This same issue was addressed by Justice Di Luca sitting as a summary Conviction appeal court in R. v. Bukin, 2021 ONSC 3347, at para. 66. The detainee invoked his right to counsel of choice and the police left a message on counsel’s voicemail. After waiting 11 minutes, the police offered duty counsel. The detainee accepted the offer and spoke to duty counsel.

[55] Justice Di Luca found that the trial judge was correct to find a section 10(b) violation because the arresting officer failed to ask the detainee if he wanted to speak to another lawyer or use other means to identify a lawyer to contact as discussed in R. v. Traicheff, 2010 ONCA 851. Despite the Charter violation the trial judge did not exclude the evidence pursuant to section 24(2) of the Charter. On appeal Justice Di Luca upheld the trial judge’s 24(2) ruling holding that it was not an error for the police to update the detainee before giving him the option of duty counsel which he chose on his own accord. He found however, that the trial judge was correct to conclude that the police did not steer the detainee to duty counsel.

[56] At para. 69, Justice Di Luca summarized the principles set out by Justice Stribopoulos in R. v. Jhite, when a detainee who initially indicated they wished to speak with a specific lawyer may later forego that choice and instead speak to duty counsel:

a. Willier establishes that the police are not required to provide a Prosper type warning when presenting a detainee with another option for obtaining legal advice. In other words, they are not required to tell the detainee that he or she can wait a further period of time for counsel of choice to respond. The rationale for not extending the Prosper warning to this type of scenario is that the detainee is not waiving the right to counsel, but rather is "merely opting to call another", see Willier at paras. 38-39. See also, McCrimmon at para. 7.

b. Willier also establishes that a detainee may choose to forego counsel of choice in favour of duty counsel or another lawyer, even before the police have provided a reasonable opportunity for counsel of choice to respond, see Willier at para. 43. However, what the police cannot do is interfere with the detainee's right to a reasonable opportunity to contact counsel of choice. As Stribopoulos J. explains in Jhite at para. 43:

Consequently, the police cannot mislead the detainee by suggesting that they do not have the option of waiting for their preferred lawyer or that their only option is speaking with duty counsel: Willier, at para. 43. Further, the police must refrain from pressuring the detainee to forego consulting their lawyer of choice in favour of speaking instead with duty counsel: at para. 43. In other words, the decision to forego the detainee's preferred counsel for duty counsel must result from the detainee's choice. The decisions of Ontario courts both before and after Willier are consistent with the approach it endorsed.

c. The police cannot "default to duty counsel" in the face of a demand to consult with counsel of choice, see R. v. Kumarasamy (2002), 22 M.V.R. (4th) 234 (Ont.S.C.). The police also cannot leave the impression that the detainee has "no option" other than consulting with duty counsel, see R. v. Vernon, 2015 ONSC 3943, leave to appeal refused 2016 ONCA 211, R. v. Singh, 2020 ONSC 1342 at para. 17, and R. v. Lewis, 2019 ONSC 5919.

[57] Turning to the facts of this case, it was apparent from the interaction in the breath room that Constable Alszegi wanted to facilitate contact with counsel of choice. However, candidly he admitted that he wanted to move the testing procedure along as he had to wait at the roadside for her mouth alcohol to dissipate which delayed the ASD test. Furthermore, Constable Alszegi delayed the formal breath test due to Ms. Iftikhar vomiting in the washroom.

[58] Constable Alszegi waited only six minutes before offering duty counsel as the next option. He did not ask Ms. Iftikhar if Mr. Qadir had another number that he could call. He did not offer her the option of looking up another lawyer’s number on the internet or contact a third party for another lawyer’s number. Constable Alszegi testified that if someone wanted counsel of choice and he has made attempts to contact that counsel he does not, as a matter of practice, offer another option for the detainee to call another lawyer; he resorts to duty counsel. He testified that “we offer duty counsel as most people are not aware.”

[59] I have some difficulty with this approach. First, the time pressure to have Ms. Iftikhar or any detainee provide a breath sample is illusory since the amendments to the Criminal Code have reduced the need for the first sample to be obtained within two hours after the detainee has ceased the operation of a motor vehicle. If the first sample exceeds the two-hour limitation, the Crown can rely on the statutory readback provision in section 320.31(4) of the Code. Second, I find that waiting six minutes between placing the first call to Mr. Qadir’s office and the interaction with Ms. Iftikhar was not a reasonable period in the circumstance before bringing up duty counsel. In my view, it was implicit in the actions of Constable Alszegi that he had waited long enough for counsel of choice to respond and, therefore, based on his training and practice, he gave Ms. Iftikhar her final option before proceeding with the breath testing.

[60] Although I have no subjective evidence from Ms. Iftikhar that she felt that she had any option other than to avail herself of duty counsel, in my view, the short period of time to wait for counsel of choice to call back and the officer’s practice to resort to duty counsel instead of the option or choice of finding another lawyer, Constable Alszegi improperly steered Ms. Iftikhar to duty counsel.

[61] It was also important that after speaking to duty counsel, Ms. Iftikhar did not express any dissatisfaction with duty counsel, however, after she re-entered the breath room, Ms. Iftikhar asked if her counsel of choice could be contacted again. In my view, this was clearly indicative of Ms. Iftikhar’s positive choice to continue to exercise her right to counsel of choice.

[62] I find that Ms. Iftikhar’s right to counsel was violated based on the following factors:

• Constable Alszegi’s failure to wait longer than six minutes for counsel of choice to call back.
• Constable Alszegi’s subjective belief that he had the testing had been delayed long enough due to Ms. Iftikhar’s mouth alcohol at the roadside and vomiting in the washroom.
• Constable Alszegi’s failure to ask Ms. Iftikhar if she would like to call another lawyer.
• Constable Alszegi’s steering Ms. Iftikhar to duty counsel due to his practice of never offering a detainee an opportunity to speak to another lawyer of choice.

Section 24(2) of the Charter

The seriousness of the Charter-infringing state conduct

[63] The police conduct under this factor must be measured along a spectrum of conduct from minor or inadvertent violations to wilful disregard for the accused’s rights. The Crown argues that this was a minor breach which was ameliorated by the fact that Ms. Iftikhar spoke to duty counsel and understood the advice provided. The officer acted in good faith. The Defence argues that the court should not condone the officer’s actions based on his training and practice.

[64] I disagree with the Crown. I find that Constable Alszegi took reasonable steps in facilitating contact with counsel of choice, in which he left voice messages on two occasions for counsel of choice to call back (at 3:45 a.m. and 4:16 a.m. respectively). But I find that he had an erroneous belief that that he was under the former time pressure of having Ms. Iftikhar provide her first sample of her breath within two hours. She ceased driving at a couple of minutes before 3:00 a.m. She provided her first sample approximately 90 minutes later. Therefore, there was more time for counsel of choice to call back.

[65] Not offering Ms. Iftikhar an opportunity to call another lawyer was based on Constable Alszegi’s training and an embedded personal practice and belief. In my view he defaulted to duty counsel far too soon. In R. v. O’Shea, 2019 ONSC 1514 at para. 52 Justice Schreck commented "[there is] a tendency on the part of the police in some cases ... to resort too readily to duty counsel without giving full effect to a detainee's right to counsel of choice.” While O'Shea was decided in Toronto, I agree with the court in Jhite that the problem is not unique to that city. As Stribopoulos J. noted: "Police organizations must equip their officers with the knowledge and encourage a culture that ensures they exercise their powers and fulfill their duties according to the Charter. Their failure to do so renders the inevitable constitutional violations that result far more serious.": at para. 92.

[66] Justice Stribopoulos further stated the following at para. 91:

In Peel Region, a long list of recently reported cases demonstrates a troubling pattern of the police failing to respect the constitutional right to counsel of choice: see R. v. Sakhuja, 2020 ONCJ 484; R. v. Virk, 2020 ONCJ 278, 461 C.R.R. (2d) 167; R. v. Byrnes, 2019 ONCJ 973; R. v. Banwait, 2019 ONCJ 283, 439 C.R.R. (2d) 278; R. v. Mattie, 2018 ONCJ 907; R. v. Gopalapillai, 2017 ONCJ 247, affirmed 2018 ONSC 929; R. v. Klotz, 2017 ONCJ 543, 17 M.V.R. (7th) 343; R. v. Rowe, 2017 ONCJ 737, 400 C.R.R. (2d) 13; R. v. Kandasammy, 2017 ONCJ 588; R. v. Simpson, 2017 ONCJ 321, 383 C.R.R. (2d) 134; R. v. McFadden, 2016 ONCJ 777; R. v. Duong, 2016 ONCJ 602, 367 C.R.R. (2d) 63; Maciel; R. v. Husman, 2014 ONSC 1392; R. v. N.N., 2014 ONCJ 344, 316 C.R.R. (2d) 248; R. v. Soomal, 2014 ONCJ 220, 10 C.R. (7th) 279. Equally concerning is its persistence despite nearly two decades having passed since Durno J.'s decision in Kumarasamy, which also involved the Peel Regional Police.

[67] I agree that we cannot place the blame squarely on the shoulders of the police officers as their failure to understand Charter compliance comes from the institution and not the individual.

[68] Therefore, I find that the breach of Ms. Iftikhar’s section 10(b) right was not deliberate, however, it falls on the more serious end of the spectrum.

The impact of the breach on the Charter-protected interests of the accused

[69] This factor involves whether the Charter breach “actually undermined the interests protected by the right infringed.” This right to retain and instruct counsel without delay and to be informed of that right permits a detainee to obtain advice about how to exercise their rights relevant to their legal predicament.

[70] Ms. Iftikhar did speak to duty counsel and received legal advice. As well, Constable Alszegi did not illicit any incriminating evidence in the breath room, which undoubtedly served to lessen the potential impact of the breach. Nevertheless, the violation of Ms. Iftikhar's s. 10(b) right to counsel of her choice meant that she had to navigate her interactions with police without the benefit of guidance from a trusted legal advisor, including the decision whether to furnish samples in response to the breath demand.

[71] In the circumstances, the breach had a moderate or some impact on Ms. Iftikhar’s Charter-protected rights.

Society's interest in an adjudication on the merits

[72] I must determine whether the truth-seeking function of the trial process would be better served by the inclusion or the exclusion of the evidence. I am mindful of the seriousness of the case, the reliability of the evidence and its importance to the Crown's case.

[73] The exclusion of the breath samples in an "over 80" case would prove to be fatal. This favours inclusion.

[74] Drinking and driving has potentially deadly and life-altering consequences. The carnage that it creates is a scourge to our society. But I am also aware of the fact that the seriousness of the offence should not take on a disproportionate significance.

Conclusion

[75] In balancing the above-mentioned factors, the public's interest in the prosecution of drinking and driving offences, the breach of Ms. Iftikhar's right to counsel of choice, and the importance of this fundamental right, I believe that in order to best serve the long-term repute of the administration of justice the breath test results should be excluded.

[76] As a result, the breath test results are excluded and the charge against Ms. Iftikhar is dismissed.

Released orally: August 5, 2022 Written Reasons released: August 10, 2022 Signed: Justice P.T. O’Marra