Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2022 08 25 COURT FILE No.: Brampton 21-2527

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

KAMAL JANDU

Before: Justice Paul F. Monahan Heard on: July 13 and 14, 2022 Reasons for Judgment released on: August 25, 2022

Counsel: J. Wilson, counsel for the Crown B. Starkman, counsel for the defendant Kamal Jandu

MONAHAN J.:

Introduction and Overview

[1] The defendant Ms. Kamal Jandu is charged with having operated a motor vehicle with a blood-alcohol concentration of equal to or exceeding 80 mg of alcohol in 100 mL of blood contrary to s. 320.14(1)(b) of the Criminal Code. The offence is alleged to have occurred on or about February 18, 2021.

[2] The trial took place before me on July 13 and 14, 2022. The defence initially alleged multiple Charter violations but in final argument ultimately proceeded with only an alleged section 10(b) Charter violation.

[3] The Crown called the following witnesses: (i) Officer Tanvir Kaur Gill, who was involved in the arrest of the defendant Ms. Jandu and who gave her the rights to counsel which are at issue in this case. She had only been on the job as an officer for four days at the time of the arrest of Ms. Jandu; and (ii) Officer Rebecca Micallef who was the coach officer for Officer Gill and was involved in the arrest.

[4] The defence called as witnesses: (i) the Breath Technician Michael Babore to address a Charter issue only; and (i) Ms. Jandu testified on the Charter only.

[5] It was agreed by the parties and the Court that the trial proper and the Charter application would be heard on a blended basis. It was further agreed by the defence that a ruling on the Charter application was not required before determining whether the defence wished to call evidence on the trial proper. This is because the case turns entirely on question of whether there was a section 10(b) Charter violation. If there was and the breath sample evidence was excluded under section 24(2) of the Charter, then an acquittal would follow. If there was no violation of section 10(b) or if there was such a violation but no exclusion of evidence ordered under section 24(2), then a conviction would follow.

The Right to Counsel Issue

[6] As I have said, the entire case turns on the section 10(b) issue. By way of background, Officers Gill and Micallef received information over the police radio at about midnight on February 18, 2021 about a suspected impaired driver. The information the officers received was that a possible impaired driver had almost hit another vehicle and was failing to maintain its lane. A licence plate number of that vehicle was provided over the police radio and shortly thereafter the officers spotted a vehicle with that plate driven by Ms. Jandu. She was pulled over and grounds for an ASD demand were obtained and an ASD test was administered, which Ms. Jandu failed.

[7] Ms. Jandu was arrested for impaired driving at 12:35 am. At that time, Officer Gill, who is fluent in English and Punjabi, provided rights to counsel to Ms. Jandu in Punjabi which is Ms. Jandu’s first language as I understand it. Officer Gill used her police notebook to refer to the preprinted right to counsel statements and questions which Peel Regional Police (“PRP”) officers are trained to provide to detained persons.

[8] Officer Gill told Ms. Jandu that: (i) she had the right to retain and instruct counsel without delay and Ms. Jandu said she understood; (ii) she had the right to telephone any lawyer she wished and have a conversation in private with that lawyer and Ms. Jandu said she understood; (iii) she had the right to free advice from a legal aid lawyer and to speak to them in private and Ms. Jandu said she understood; (iv) she could apply to the Ontario legal aid plan for assistance and she said she understood and said “can I please call my husband”. The officer did not respond to this question at this time; and (v) there was a toll-free number for legal aid duty counsel and Ms. Jandu said she understood.

[9] At 12:41 am, immediately after the above exchange, the officer asked Ms. Jandu “do you wish to call a lawyer now?” to which Ms. Jandu responded “I don’t know. I want to talk to my husband first.”. Officer Gill replied that Ms. Jandu could not speak to her husband but could only speak to a lawyer. Thereafter, Ms. Jandu requested to speak to duty counsel.

[10] Ms. Jandu ultimately spoke to duty counsel with the assistance of a Punjabi interpreter. She confirmed on the breath room video that she had spoken to duty counsel, and she made no complaint about it and confirmed she was satisfied with the advice received. She later provided breath samples into an approved instrument which were in excess of the legal limit.

The Defence’s Position

[11] The defence’s submission regarding section 10(b) focuses on the last part of the exchange between Officer Gill and Ms. Jandu, when Ms. Jandu said she did not know if she wanted to speak to counsel and that she wanted to talk to her husband first. The defence made a number of submissions in support of its section 10(b) argument.

[12] Ms. Jandu testified on the Charter application. She said that Officer Gill had properly recounted in her testimony the conversation between them concerning rights to counsel. However, Ms. Jandu testified that the reason she wanted to speak to her husband was because he was in business and he had a very good Punjabi speaking lawyer. She said that even if that lawyer had been unavailable, she believed that he could have found a Punjabi speaking lawyer for her. She testified it was important to her that she have the opportunity to speak to a Punjabi speaking lawyer and that it would have made her feel more comfortable.

[13] Ms. Jandu was asked why she had not said to the officer that she wanted to speak to her husband to get a lawyer. She said that was because it was “crystal-clear” that that was why she wanted to talk to her husband. She acknowledged in cross-examination again that she agreed with Officer Gill’s recitation of what had been said between them about rights to counsel and she acknowledged that at no time did she say that she wanted to speak to her husband to get a Punjabi speaking lawyer (or any lawyer). Ms. Jandu said that when she was told that she could not call her husband, she thought that duty counsel was her only option, so she asked to speak to duty counsel.

[14] The defendant submits based on what was said that it should have been obvious to police as to why Ms. Jandu wanted to call her husband namely to get a lawyer and the police should have facilitated that contact.

[15] The defendant further submits that the police “misled” Ms. Jandu when Officer Gill said that she could not call her husband. This was because, the defence submitted, she was entitled to contact her husband to get a lawyer and the statement that she could not call her husband was misleading by omission. The defence says further that Ms. Jandu’s rights to counsel were “destined to be infringed” because of the officers’ misunderstanding as to their obligations under the law. In particular, it was clear from the testimony of Officers Gill, Micallef and Babore that the approach and training of PRP where a detainee does ask to speak to a friend or relative for the purpose of getting the name and contact information of private counsel, is for PRP to contact the friend or relative on behalf of the detainee to get the name and contact information. According to these officers, PRP does not permit a detainee to speak directly to the friend or relative. The defendant submits that this approach is contrary to the law.

[16] The defence further submits that the section 10(b) breach in this case was serious for a number of reasons. In particular, the defence submits that the alleged breach here results from “systemic” problems because PRP never permits a person to speak directly to a friend or relative when they want to obtain the name of counsel and expressly say so to police and that this is contrary to the law. The defence also submits that the breach here was more serious because Officer Gill did not reread the ASD demand in Punjabi when she realized there was a language issue and Officer Micallef did not review with Officer Gill what had been said by Ms. Jandu in Punjabi in response to the rights to counsel. To be clear, the defence made it clear that they were not advancing a section 8 Charter breach. The defence referred to the failure to read the ASD demand in Punjabi as a contextual point which the defence submitted showed a “cavalier” approach to Ms. Jandu’s rights. The defence submitted that the breath sample evidence should be excluded under section 24(2) of the Charter.

The Crown’s Position

[17] The Crown’s position is that Ms. Jandu failed to tell police, as she was obligated to do if she wanted to contact her husband, that she wanted to call her husband to obtain a Punjabi speaking lawyer. The Crown submits that there was no breach of section 10(b) and that in any event no evidence should be excluded under section 24(2) of the Charter.

Law

[18] The law with respect to right to counsel is well known. The right to counsel imposes three principal obligations on police: (i) to inform the detainee without delay of their right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel; (ii) if a detainee indicates a desire to exercise their right to counsel, police must provide the detainee with a reasonable opportunity to do so; and (iii) the police must refrain from eliciting evidence from the detainee until they have had the reasonable opportunity to consult counsel. (see R. v. Bartle, [1994] 3 S.C.R. 173 at para 17).

[19] The first obligation on police as set out above is informational while the second and third requirements are implementational in nature.

[20] The right to retain and instruct counsel includes the right to contact a third party to obtain counsel: R. v. Kumarasamy (2002), 22 M.V.R. (4th) 234 (Sup. Ct. per Durno J.).

[21] A detainee who wishes to contact third party for the purpose of obtaining counsel has an “obligation” to tell police who they wish to call and why: see R. v. Antoninas 2014 ONSC 4220 at para 94 (per Durno J.). On the other hand, “where a detainee does not tell police the reason why they wish to speak to third party, there is no obligation on the police to determine why the detainee made such a request”: see R. v. Cheema 2018 ONSC 229 at para. 31 (per Barnes J.). A similar point was made by Justice Woollcombe in R. v. Mumtaz, 2019 ONSC 468 at para. 39 where she observed that detainees will sometimes request to speak to third parties in the course of receiving rights to counsel without explaining why. In those circumstances, the Courts have not imposed an obligation on police to ask why they want to contact a third party. Rather, “in keeping with the requirement that it is for the detainee to assert a desire to speak with counsel of choice …the obligation has been, consistently, on the detainee to explain to police why he or she wishes to speak to a third party”: see Mumtaz at para. 39.

[22] In Cheema, the defendant asked the officer giving rights to counsel if they could call a friend who was a police officer. The officer giving rights to counsel responded that the detainee was not permitted to call friends. The arresting officer did not ask the defendant why he wanted to speak to the friend. The defendant then asked to speak to duty counsel. At trial the defendant testified that the reason he wanted to speak to his friend the police officer was to get the name of a lawyer. Justice Barnes found that in the absence of the defendant telling police why he wanted to contact his friend, the police were under no obligation to ask the defendant why he wanted to contact his friend (see para 32). No section 10(b) violation was found in Cheema.

Discussion and Analysis

[23] In this case, when Ms. Jandu was asked if she wanted to call a lawyer she responded “I don’t know. I want to talk to my husband first.” In response, Officer Gill said she could not call her husband, she could only call a lawyer. Although Ms. Jandu testified on the Charter application that she wanted to call her husband to get a lawyer, I’m not persuaded of that fact. She said nothing to police to suggest any such thing. She came to Court and said that what she had told officer Gill was “crystal-clear” meaning that it was clear that she wanted to contact her husband to get a lawyer. In my view, it was not “crystal-clear”. As I said, Ms. Jandu never came close to saying to the police that she wanted to contact her husband for the purpose of getting a lawyer. The cases make it clear that it is the detainee’s obligation to tell police why they want to contact a third party.

[24] The defence’s main argument here is that Cheema, Antoninas and Mumtaz are all distinguishable. It is submitted that that the detainees in those cases were not misled by the police while it is submitted here that Ms. Jandu was misled by the officer’s statement that she could not call her husband when in fact she could contact her husband if she had told police that she wanted to do so to get a lawyer.

[25] In my view, a detailed examination of what the detainees in Cheema, Antoninas and Mumtaz knew or did not know does not change the overarching point made in those cases that the obligation is on the detainee to expressly say why they wish to call a third party.

[26] Further, in my view, police did not mislead Ms. Jandu here. There was a context in which the officer said that Ms. Jandu could not speak to her husband and that was not all the officer said. Ms. Jandu was first told that she could contact any lawyer she wished or duty counsel and she said she understood that. Ms. Jandu twice referred to wanting to speak to her husband and both times failed to say anything about why she wanted to speak to her husband. I repeat it was her obligation to do so. This was before police said that she could not speak to her husband.

[27] Faced with the information, or lack thereof, put forward by Ms. Jandu that (i) she did not know if she wanted to speak to a lawyer, but wanted to speak to her husband first; and (ii) saying nothing about wanting to speak to her husband or any third party to get the name of a lawyer, it was true that in those circumstances she could not contact her husband. At a minimum, to trigger the implementational obligation on police to permit her to contact her husband or a third party generally, Ms. Jandu had to first tell the officer that she may want to speak to counsel and that she wanted to speak to her husband or some other third party to get the name/contact information of a lawyer. Ms. Jandu failed to do that here.

[28] The defence argues further here that the police in this case were “destined” to breach Ms. Jandu’s Charter rights because they were not going to let her contact her husband directly regardless of what she said. In my view, this argument does not even arise here because Ms. Jandu failed to indicate why she wanted to contact her husband. So the fact that had Ms. Jandu said she wanted to contact her husband to get the name of a lawyer, PRP would not have allowed her to speak directly to her husband is of no moment because Ms. Jandu never triggered the implementational obligation on police to facilitate contact with a third party.

[29] While it is not necessary for me to decide the point here, I am not at all satisfied that defence counsel is right when they submit that a detainee can always insist on the right to speak directly to a third party to get the name or contact information of private counsel where they indicate that they wish to do so for the purpose of getting private counsel, instead of having police do it on their behalf. I recognize the general language in cases such as R. v. Tremblay, [1987] 1 S.C.R. 435 at para 8 (and other cases) where the Supreme Court said that a detainee could contact “a lawyer through his wife”. However, I am not aware of any binding authority on me where a court has actually decided that police cannot make contact with the relative on behalf of the detainee in order to get the name or contact information of counsel. If police contacted a third party and got the contact information for the lawyer and provided it to the detainee, I am not sure what the s. 10(b) breach would be. To be clear, I don’t need to decide this point in this case, so I do not do so. There may well be circumstances where police may be required to allow the detainee to speak to the third party directly. Those circumstances did not arise here as I have already said as Ms. Jandu did not say why she wanted to talk to the third party. Finally, I note also that there is no agreement in the cases not binding on me as to whether police can contact a third party on behalf of a detainee: see for example Justice Band in R. v. McFadden, [2016] O.J. 6932 at para 126 who suggests that the PRP should “revisit” the practice of calling the third party on behalf of the detainee. On the other hand, Justice Schwarzl in R. v. Bennett 2015 ONCJ 187 at para. 82 says that it may be reasonable for police to contact the third party on behalf of the detainee.

Summary

[30] By way of summary, the Courts have repeatedly held that if the detainee wants to contact a third party to get private counsel of choice, the detainee must say why they want to contact the third party. That did not happen here. The cases also make it clear that when a third party is mentioned by the detainee as a person they would like to contact without saying why, there is no obligation on police to inquire further.

[31] That is not to say that the police could not have done more for Ms. Jandu here. They could have asked her why she wanted to contact her husband and I would suggest that that would be a better practice for police to follow. Having said that, the cases are clear that whether there is section 10(b) violation does not turn on whether the police could have done more. The question is whether the police failed to facilitate the rights resulting in a breach of section 10(b): see Antoninas at para 93. In my view, the police did not breach Ms. Jandu’s s. 10(b) Charter rights here.

[32] For the reasons set out above, the Charter application is dismissed. As a result, the breath sample evidence will not be excluded, and a finding of guilt will be entered for the 80 and over charge under s. 320.14(1)(b).

August 25, 2022 Signed: Justice Paul F. Monahan