Court File and Parties

COURT FILE NO.: 973/15 DATE: 20160802

ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – RAHMAN WAHAB Appellant

COUNSEL: C. Presswood, for the Respondent T. Yuen, for the Appellant

HEARD: July 18, 2016

[On appeal from the judgment of Keaney J. dated April 22, 2015]

MILLER J.

Introduction

1Rahman Wahab was found guilty April 22, 2015 of, on March 22, 2014, Operating a Motor Vehicle with Blood/Alcohol in Excess of 80mg of alcohol in 100ml of blood. He appeals from that finding on the basis that the learned trial judge erred in misapprehending the evidence, in rejecting his testimony, in dismissing his s. 10(b) Charter motion and in an analysis of s. 24 (2).

2The Crown concedes there was a misapprehension of evidence but that it was not material to the determination of the s. 10 (b) issue, which, the Crown submits, was correctly decided.

Facts

Facts

3Rahman Wahab was operating a motor vehicle March 22, 2014 when he was stopped at a RIDE program. He registered a fail on the approved screening device, was given a breath demand and provided breath samples at the police station establishing that his blood/alcohol level was 145 and 151 mg of alcohol in 100ml of blood.

4The only issue at trial, and on this appeal, was whether Mr. Wahab had been properly afforded his rights to counsel.

5Mr. Wahab was read his rights to counsel at the roadside and said he did not want to call anyone.

6When taken to the police station, Mr. Wahab’s rights to counsel were again read to him by the breath technician and when Mr. Wahab was asked if he wished to contact duty counsel he said “No, I fucked up and I don’t want to speak to anyone.”

7Inside the breath room the breath technician again read Mr. Wahab his rights to counsel and explained them. At that time Mr. Wahab indicated he wished to call duty counsel. The officer then called and left a message for duty counsel.

8While waiting for duty counsel to call back, the officer asked Mr. Wahab if he had his own lawyer. Mr. Wahab indicated that he did and he wanted him contacted. The officer asked the name of the lawyer. Mr. Wahab asked for his cellphone. The officer checked to see if the cellphone was in with Mr. Wahab’s other property. It was not. Mr. Wahab said the cellphone was in the car. The officer said the car was gone. The officer asked again for the name of the lawyer. Mr. Wahab said he could call his office and get his counsel. The officer asked for the office number which Mr. Wahab provided.

9When the officer asked who he should ask for at the office Mr. Wahab then said that it was his wife and he did not want her involved. The officer asked if Mr. Wahab’s wife would have the name of the lawyer. Mr. Wahab said she would not.

10Mr. Wahab then asked the officer to call Kumar who would have his lawyer’s name. The officer asked for Kumar’s number. Mr. Wahab said it was on the cellphone. The officer asked if Mr. Wahab’s wife would have Kumar’s number. Mr. Wahab said no, it is on the cellphone. Mr. Wahab repeatedly asked for the cellphone as the officer was reading his cautions and the breath demand and the officer told him he did not have it.

11After completing the secondary caution the officer called the arresting officer who told him the cellphone was not in the car and suggested that perhaps Mr. Wahab’s passenger had taken it. The officer also confirmed that Mr. Wahab’s cellphone was not among the property that had been seized from him. Mr. Wahab asked to make a call. At that point duty counsel called back and Mr. Wahab decided to speak to duty counsel. Upon completing the conversation with duty counsel the officer asked Mr. Wahab if he had spoken to duty counsel, if he had received advice and if he had understood the advice. Mr. Wahab replied in the affirmative to each of the questions asked.

12The officer then asked for Mr. Wahab’s cellphone number and he called it but got no answer. He then asked Mr. Wahab if he had a number for the friend who had been in the car with him. Mr. Wahab replied that it was on the cellphone. The officer then asked if Mr. Wahab could remember his lawyer’s name. Mr. Wahab did not respond. The officer told him to let him know if he came up with the lawyer’s name and asked if there was anyone else he could try calling. Mr. Wahab did not respond.

13The officer then described the breath test procedure and the consequences of failing to provide a sample. During this, Mr. Wahab asked for his cellphone again repeatedly –over 40 times - while the officer repeatedly told him he did not have his cellphone and Mr. Wahab accused the officer of lying.

14At 22:27 Mr. Wahab asked “Can I have a phone number to call?” The officer took down the number and asked “Who are we calling?” Mr. Wahab said it was his wife. The officer asked for what purpose? Mr. Wahab repeated that he wanted his cellphone. The officer asked again why were they calling Mr. Wahab’s wife? Mr. Wahab replied “I want her to call Kumar right now.” The officer said “But you said she doesn’t know Kumar’s number.” Mr. Wahab asked “Can you call the number for me please? Please?” The officer replied “I can.” He then asked Mr. Wahab to provide a breath sample which he did.

15Upon completing the taking of the first breath sample Mr. Wahab asked “Can I call her?” The officer replied “I will make the phone calls.” He then asked, “So you want me to call her in order to get the phone number for Kumar, then call Kumar?” Mr. Wahab replied, “Ya. I just want to talk to her for a quick second. It’s my wife.” The officer responded, “The only reason anyone has a right to call right now is the right to call for the purposes of obtaining counsel.”

16Mr. Wahab then said, “So I can’t call?” The officer replied “When it is all said and done you can call her and talk to her about whatever you like but right now I am trying to facilitate a request you said about counsel.” The officer then repeated that Mr. Wahab had told him earlier, that his wife did not have a number for Kumar. Mr. Wahab then said that he wanted to see if his wife had Kumar’s number on her cellphone.

17The officer then called Mr. Wahab’s wife who gave him Kumar’s number. The officer then called Kumar who gave him the name and number for a lawyer. The officer explained to Mr. Wahab that he would make the call to the lawyer in a room where Mr. Wahab could speak privately to the lawyer. Mr. Wahab then asked three more times for his cellphone.

18The officer then called and left a message for the lawyer. He also called an emergency answering service which tried and was unable to contact the lawyer. The officer then proceeded to take the second breath sample.

Law

Law

19The right to counsel of choice was summarized in the Supreme Court of Canada decision in R. v. McCrimmon 2010 SCC 36, [2010] S.C.J. No. 36 at paragraph 17:

As explained in Willier, the right to choose counsel is one facet of the guarantee under s. 10(b) of the Charter. Where the detainee opts to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles him or her to a reasonable opportunity to contact chosen counsel. If the chosen lawyer is not immediately available, the detainee has the right to refuse to contact another counsel and wait a reasonable amount of time for counsel of choice to become available. Provided the detainee exercises reasonable diligence in the exercise of these rights, the police have a duty to hold off questioning or otherwise attempting to elicit evidence from the detainee until he or she has had the opportunity to consult with counsel of choice. If the chosen lawyer cannot be available within a reasonable period of time, the detainee is expected to exercise his or her right to counsel by calling another lawyer, or the police duty to hold off will be suspended: R. v. Ross, [1989] 1 S.C.R. 3; R. v. Black, [1989] 2 S.C.R. 138.

20Further, in R. v. Willier 2010 SCC 37, [2010] S.C.J. No. 37 at paragraph 33, the Court emphasized that:

Detainees who chooses[SIC] to exercise their s. 10(b) right by contacting a lawyer trigger the implementational duties of the police. These duties require the police to facilitate a reasonable opportunity for the detainee to contact counsel, and to refrain from questioning the detainee until that reasonable opportunity is provided. However, these obligations are contingent upon a detainee's reasonable diligence in attempting to contact counsel: R. v. Tremblay, [1987] 2 S.C.R. 435; R. v. Black, [1989] 2 S.C.R. 138; R. v. Smith, [1989] 2 S.C.R. 368. What constitutes reasonable diligence in the exercise of the right to contact counsel will depend on the context of the particular circumstances as a whole. As Wilson J. stated in Black (pp. 154-55):

A rider is attached to these police obligations, namely that the accused must be reasonably diligent in attempting to obtain counsel if he wishes to do so. If the accused person is not diligent in this regard, then the correlative duties imposed upon the police to refrain from questioning the accused are suspended: see R. v. Tremblay, [1987] 2 S.C.R. 435.

Analysis

Analysis

21The learned trial judge here found that the Appellant had not asserted his right to counsel of choice until after the first breath test. The Crown concedes that this was a misapprehension of the evidence.

22It is clear that Mr. Wahab asserted his right to counsel and his right to counsel of choice shortly after entering the breath room. The issue here is whether the police complied with their obligation to hold-off until Mr. Wahab had a reasonable opportunity to exercise his right to counsel of choice, and whether Mr. Wahab was reasonably diligent in pursuing his right.

23It is clear on the evidence that police did everything reasonable to assist Mr. Wahab in exercising his right to counsel of choice once Mr. Wahab had communicated to them his request to do so and the information necessary to complete the request.

24Counsel for Mr. Wahab takes no issue with the steps taken by police between the two breath tests. Counsel for Mr. Wahab submits that those steps should have been taken before Mr. Wahab was asked to provide his first breath sample. In particular, counsel for Mr. Wahab submits that as Mr. Wahab had communicated to police that Kumar would have the name and number of his lawyer then his subsequent request to contact his wife in order to contact Kumar should have been interpreted by police as a request to contact his lawyer before giving his first breath sample. In this regard, counsel points to the officer’s ability to restate Mr. Wahab’s request after taking the first breath sample.

25Counsel for the Crown submits that Mr. Wahab was not reasonably diligent in communicating to police how they might comply with his request to consult counsel of choice.

26Mr. Wahab insisted that the name and number for his lawyer was on his cellphone. The officer took all reasonable steps to locate the cellphone but was unsuccessful. This was clearly communicated to Mr. Wahab.

27Mr. Wahab asked that his friend Kumar be contacted in order to obtain the information about the lawyer but could not provide Kumar’s number, once again insisting that it was on his cellphone.

28Mr. Wahab asked that his wife be contacted and provided her number, but told the officer that she would not have Kumar’s number or a number for the lawyer.

29It was only after providing his first breath sample that Mr. Wahab communicated to the officer that he wanted to see if his wife would have Kumar’s number on her cellphone.

30It is not clear that the officer understood this until after taking the first breath sample. After taking the first breath sample the officer sought clarification of Mr. Wahab’s request. In doing so, he repeated that Mr. Wahab had told him earlier that his wife did not have a number for Kumar. Mr. Wahab then said that he wanted to see if his wife had Kumar’s number on her cellphone.

31I find that Mr. Wahab was not reasonably diligent in communicating to the officer, before the first breath test, how the officer could facilitate his request to contact counsel of choice. He told the officer that Kumar would have the name and number of the lawyer, but that Kumar’s number was on the unavailable cellphone. He told the officer that his wife would not have the number for the lawyer or for Kumar. The officer correctly told Mr. Wahab that the only calls he could make at that time were to facilitate contact with counsel. Mr. Wahab failed to tell the officer that his wife might have Kumar’s number until after the first breath sample was taken. The failure in communication was compounded by Mr. Wahab’s repeated and unreasonable requests for his cellphone (40+) when it had been clearly communicated to him that police did not have the cellphone and were unable to locate it despite best efforts.

32I have considered the trial judge’s finding of credibility against Mr. Wahab. The trial judge found that it was unreasonable for Mr. Wahab to have been intimidated by police when he had lived in Canada 31 years and had never experienced police misconduct in Canada. Mr. Wahab testified that part of his inability to communicate clearly what he wanted to police was influenced by his experience of police in his native country of Guyana and his fear that upon his arrest March 22, 2014 police were going to hurt him.

33Whether this finding by the trial judge may have been unwarranted is irrelevant to the finding I have made. As noted above, Mr. Wahab had no difficulty in repeatedly and unreasonably demanding his cellphone, and accusing the officer, who could not have been more accommodating, of lying to him.

34Mr. Wahab testified that despite telling the officer that he had spoken to duty counsel and had understood what he had been told, he was in fact, not satisfied with the advice from duty counsel because he had the impression that duty counsel was working for the police.

35It is clear that Mr. Wahab’s concern that duty counsel was working for police was never communicated to police. In fact, when the officer specifically enquired about whether Mr. Wahab had understood the advice he told them that he had. If Mr. Wahab was reticent to complain about advice he had received from duty counsel there is no way police could have known that, and cannot be faulted for accepting Mr. Wahab’s assurance that he had understood the advice received.

36Despite the trial judge’s misapprehension of the evidence in respect of the timing of Mr. Wahab’s assertion of his right to counsel of choice, I do not find that the trial judge was in error in concluding, on the evidence before the court, that there was no violation of Rahman Wahab’s s.10 (b) rights. I would not find, on the evidence, that there was a violation of Mr. Wahab’s s. 10 (b) rights.

S. 24 (2)

S. 24 (2)

37Having found no violation of s. 10(b) it is not necessary for me to consider a s. 24 (2) remedy, but I can indicate that if the officer’s actions in failing to understand Mr. Wahab’s request just before the first breath test as a further assertion of his right to counsel of choice did amount to a breach, I would not exclude the breath sample analyses.

38The analysis required by R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32 is summarised at paragraph 71: “A court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct ... (2) the impact of the breach on the Charter-protected interests of the accused ... and (3) society's interest in the adjudication of the case on its merits".

39I do not accept the submission by counsel for Mr. Wahab that if there was a breach, while not done in bad faith, it would have been deliberate. In fact the officer went out of his way to accommodate Mr. Wahab’s requests. A breach, if any, would have resulted from the officer’s failure to comprehend what Mr. Wahab was trying to communicate to him.

40The impact on Mr. Wahab’s rights was minimal if any – he had already exercised his right to speak to duty counsel, and, as Mr. Wahab testified, his only concern with that advice was that he believed, at the time, that duty counsel was working for police. As Mr. Wahab conceded in his testimony, his concerns about police that night were completely unfounded.

41Finally, there is strong societal interest in the adjudication of cases involving drinking and driving and as recognized by the Court of Appeal in R. v. Manchulenko 2013 ONCA 543, [2013] O.J. No. 3977 at paragraph 93:

Section 24(2) eschews presumptive rules. No overarching rule governs how the balance is to be struck. Each case requires a fact-specific evaluation of all the circumstances to determine whether the balance settles in favour of exclusion or of admission. Despite the requirement that each case requires consideration according to its own factual matrix, as a general rule, reliable evidence obtained by less egregious and invasive intrusions into privacy, bodily integrity, and dignity, such as the taking of breath samples, may be admitted: Grant, at para. 111.

Conclusion

42The appeal is dismissed.