Court File and Parties

COURT FILE NO.: CR-22-462-00AP DATE: 20230712

ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT

BETWEEN:

HIS MAJESTY THE KING – and – KAMAL JANDU

Counsel: Madeline Lisus, for the respondent Douglas Lent, for the appellant

HEARD: July 4, 2023

REASONS for judgment

[On appeal from the conviction entered August 25, 2022 by Justice Paul Monahan of the Ontario Court of Justice]

Rahman, J.

1. Introduction

[1] The appellant was convicted of one count of having excess blood alcohol within two hours of operating a conveyance. The sole issue at her trial, and on this appeal, was whether the police violated her right to contact her counsel of choice.

[2] The appellant was arrested after police pulled her over and she failed an approved screening device test. When advised of her s. 10(b) rights under the Charter of Rights and Freedoms (Charter), the appellant twice asked to call her husband. The arresting officer told her that she could not call her husband. The appellant then asked to speak to duty counsel. The trial judge dismissed the Charter application. The trial judge did not accept the appellant’s testimony that she asked to speak to her husband because she wanted to get the name of a lawyer. The trial judge also concluded that the law requires detainees to tell the police that they want to call a third party in order to get the name, or contact information, to contact counsel. The appellant had not told police that she needed to call her husband to get the name of a lawyer. Consequently, the trial judge found the police had not breached the appellant’s s. 10(b) Charter rights and dismissed her application.

[3] The appellant argues that the trial judge erred in finding that her right to counsel of choice was not breached. The appellant contends that if the trial judge found as a fact that she did not want to call her husband to get the name of a lawyer, that finding was unreasonable. In any event, the appellant contends that it ought to have been obvious to the arresting officer that when she asked to call her husband, she did so because she wanted to get the name of a lawyer. The appellant argues that the officer’s response that she could not call her husband was misleading because it implied that she could not call her husband at all for any purpose. The appellant argues that the breach of her s. 10(b) rights warrants exclusion of her breath samples under s. 24(2) of the Charter.

[4] The respondent argues that the trial judge’s ruling was correct. The respondent says that the trial judge’s factual finding that the appellant was not asking to call her husband to get the name of a lawyer is fatal to her Charter claim. And even if the trial judge did not make this factual finding, he was correct in finding that the appellant had an obligation to tell the police that she wanted to call a third-party to get the name of a lawyer. Since the appellant did not tell police why she wanted to call her husband, the police were under no obligation to let her make that call. The respondent also argues that, even if there is a breach here, the evidence should not be excluded under s. 24(2) of the Charter.

[5] I agree with the respondent. The trial judge’s finding of fact that the appellant was not asking to call her husband to get the name of a lawyer was reasonable. That factual finding was fatal to the appellant’s s. 10(b) Charter claim. Moreover, even if the trial judge did not make this finding of fact, his conclusion that there was no breach was correct. The appellant did not tell the police why she wanted to call her husband. It was not obvious why she was asking to make that call. The police had no obligation to ask her why she wanted to call him. They did not breach the appellant’s right to contact counsel of choice. The appeal is dismissed. My reasons for that conclusion follow.

2. Facts

[6] It is not necessary to review the evidence in detail. The parties agree that the appeal turns, in large part, on the interaction between the arresting officer and the appellant, and on the appellant’s testimony about why she wanted to call her husband.

2.1. The exchange between the appellant and the officer

[7] The appellant found herself in police custody after being pulled over as a suspected impaired driver after midnight on February 18, 2021. The appellant’s license plate matched one that had reportedly almost hit another car. Constables Tanvir Gill and Rebecca Micallef pulled the appellant over. Constable Gill had only been working as an officer for four days at that point, and Constable Micallef was her coach officer. While administering the approved screening device test, Constable Gill took over speaking with the appellant because the appellant’s first language is Punjabi and Constable Gill is fluent in that language. Constable Gill also advised the appellant of her s. 10(b) Charter rights in Punjabi.

[8] Constable Gill advised the appellant of her s. 10(b) rights using the pre-preprinted portion of her memo book. Constable Gill first confirmed that the appellant understood she had the right to retain and instruct counsel without delay, that she could privately call any lawyer she wished, and that she could call duty counsel at no charge. The officer then told the appellant that if she was charged, she could apply to the Ontario legal aid plan. When asked if she understood, the appellant responded, “Yes, can I please call my husband?” Constable Gill said that she did not respond to the appellant’s question directly and continued the right to counsel recitation. The officer next told the appellant the 1-800 number she could use to call duty counsel for free, and confirmed the appellant understood. Constable Gill then concluded with the question, “Do you wish to call a lawyer now?” The appellant responded, “I don’t know, I want to talk to my husband first.” The officer told the appellant that she could not speak to her husband, and that she could only speak to a lawyer. The appellant then asked to speak to duty counsel.

[9] The appellant ultimately consulted with duty counsel through a Punjabi interpreter. When the qualified breath technician asked her if she was satisfied with her consultation with duty counsel, she said she was.

2.2. The appellant’s evidence

[10] The appellant testified on the Charter application. She agreed that Constable Gill had accurately recounted their interaction where she was informed of her rights. The appellant testified that she had asked to speak to her husband because he had previously used a very good Punjabi‑speaking lawyer. She also testified that, even if her husband’s lawyer had been unavailable, she believed that he could have found a Punjabi-speaking lawyer for her because “he’s in business and knows a lot of people in the Punjabi community.” The appellant said that speaking to a Punjabi lawyer was important to her because it would have made her feel more comfortable and she would trust him or her more.

[11] When asked why she did not tell police the reason she wanted to speak to her husband (i.e., to get the name of a lawyer), she testified that, “[i]t was crystal clear for me that I wanted to talk to my husband regarding a lawyer.” The appellant also testified that when Constable Gill told her she could not talk to her husband, she thought she had no other option but to speak to duty counsel. The appellant testified that she was not satisfied with the consultation with duty counsel because she simply listened and did not speak. She testified that she did not complain when asked if she was satisfied with the consultation because she did not see any point in complaining since she thought speaking to duty counsel was her only choice.

3. The trial judge’s decision

[12] The trial judge started his analysis of the Charter issue by considering the appellant’s testimony that she was asking to call her husband to get the name of a lawyer. The trial judge stated that he was “not persuaded of [the] fact” that the appellant wanted to call her husband to get a lawyer’s name. The trial judge found that the appellant said nothing to the police to suggest that was the reason for wanting to call her husband, and that it was not “crystal clear” that was the reason she wanted to make the call. I set out this portion of the trial judge’s reasons below:

[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. [emphasis added.]

[13] The trial judge also dealt with trial counsel’s argument – repeated on appeal – that Constable Gill misled the appellant by telling her that she could not call her husband. The trial judge rejected this argument. He found that it was important to consider the context in which Constable Gill told the appellant she could not call her husband. The appellant asked to call her husband twice, without saying why she wanted to make that call. It was only after these two requests that Constable Gill told the appellant that she could not contact her husband.

[14] The trial judge concluded that three cases from this court (all of which were binding on him) obliged the appellant to tell the police why she wanted to contact her husband. The trial judge concluded that, based on the information the appellant had conveyed to them, they were correct in telling her that she could not contact 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. [Emphasis in original.]

[15] The trial judge concluded that while the police could have asked the appellant why she wanted to contact her husband, and while it may have been a better practice to do so, they were not constitutionally obligated to do so. Consequently, he concluded that there was no s. 10(b) Charter breach and dismissed the application.

4. Analysis

[16] I will first address the appellant’s submission that the trial judge erred if he made a factual finding that she did not want to call her husband to get the name of a lawyer. After that, I will explain why, factual finding or not, the trial judge’s approach and conclusion were correct.

4.1. The trial judge made a finding of fact that is dispositive of the Charter application

[17] The appellant contends that the trial judge did not make a factual finding that she was not interested in calling her husband to get the name of a lawyer. In oral submissions, appellant’s counsel argued that if the trial judge made such a finding of fact, it was unreasonable. The appellant said that her testimony on this point was uncontradicted and there was no basis for the trial judge to make such a finding. To the extent that the trial judge rejected her evidence because she did not say why she wanted to call her husband, he committed a palpable and overriding error.

[18] I cannot agree with the appellant. The trial judge did make a finding of fact that doomed the appellant’s Charter argument to failure. The trial judge’s comments about the appellant’s testimony were clearly a finding of fact. Indeed, the phrase he used at para. 23 made it clear that he was making a factual finding against the appellant – “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” (emphasis added). I cannot agree with the appellant that this finding was unreasonable simply because her testimony on this point was uncontradicted. The appellant was testifying about her subjective state of mind. Nobody else could have offered testimony to contradict her. The trial judge was not obliged to accept her evidence. Moreover, his basis for rejecting her testimony was neither illogical nor unreasonable. The trial judge was entitled to assess her testimony and decide whether he accepted it. It was his call to make. It is not this court’s role to re-try the case and re-visit factual findings that disclose no palpable or overriding error.

[19] Given the trial judge’s finding that the appellant did not want to call her husband to get the name of a lawyer, her Charter application could not succeed. However, as the trial judge did, I will also consider whether the police had an obligation in the circumstances to allow the appellant to call her husband.

4.2. The appellant was obliged to tell police why she wanted to call her husband

[20] The appellant acknowledges that the authorities place an onus on a detainee to tell police that they want to speak to a third party to help them contact private counsel. However, the appellant argues that there are no “magic words” that a detainee must say to trigger the police obligation to allow them to speak to a third party. The appellant argues that given the context in which the appellant asked to call her husband, it was clear that she wanted to call him to contact a lawyer. There was no obligation on her to be explicit in the circumstances. Moreover, the appellant contends that Constable Gill’s statement that she could not call her husband was categorical and misled her into believing that she could not contact her husband for any purpose. She claims on appeal, as she did at trial, that this is the reason she settled for duty counsel.

[21] I cannot accept the appellant’s argument. I will first review cases from this court on this issue because they are relevant in assessing the appellant’s claim about the failure to use so-called “magic words.”

[22] The authorities from this court make it clear that a detainee who wants to call a third party for help in contacting private counsel has an obligation to tell the police why they want to make that call. All of the following decisions are decisions of this court sitting as a summary conviction appeal court:

1. R. v. Antoninas, 2014 ONSC 4220: The defendant asked to use his phone to make a call. The officer told the defendant he could not and that the officer would make any calls he wanted to make for him. The defendant claimed at trial that he had wanted to call his sister to get the name of a lawyer. Durno J. held (at para. 94) that the defendant (who did not even tell police who he wanted to call) had the “‘unique ability and indeed obligation’ to tell the officers who he wanted to call and why.”
2. R. v. Cheema, 2018 ONSC 229: This is a case with facts almost identical to the case at bar. The defendant asked an officer during the rights to counsel recitation whether he could call a friend who was a police officer. The officer told the defendant that he could not call friends. The officer did not ask why the defendant wanted to call his friend. The defendant then asked to speak to duty counsel. Barnes J. held (at para. 31) that “when a detainee does not tell the police the reason why he or she wishes to speak to a third party, there is no obligation on the police to determine why the detainee made such a request.”
3. R. v. Mumtaz, 2019 ONSC 468: The defendant asked to contact a police officer who was a friend of his. He did not say why he wanted to contact his friend. The trial judge found that, in the context of the defendant’s request, there was “a clue” as to why he wanted to speak to his friend. The trial judge also held that if there was any doubt why the defendant wanted to speak to his friend, the police should have asked the defendant why he wanted to call his friend. In overturning the trial judge’s decision excluding the evidence because of a s. 10(b) breach, Woollcombe J. concluded (at para. 38) that “when a detainee does not indicate to the police the reason why he or she wishes to contact a third person, there is no legal obligation on the police to permit contact with that third party or to make further inquiries as to the reason the detainee wishes to make contact.” Woollcombe J. further held (at para. 39) that, since a detainee must assert a request to speak to counsel of choice, “before the police are required to facilitate the implementation of that right, the obligation has been, consistently, on the detainee to explain to police why he or she wishes to speak to a third party.”

[23] The foregoing authorities make clear that the appellant was obliged to tell the police why she wanted to call her husband. The police were not obliged to ask her why she wanted to make the call.

[24] Further, regarding the appellant’s argument that it was obvious why she was asking to call her husband, like the trial judge, I consider it far from obvious. I agree with the trial judge’s analysis that, in the context of the interaction, the appellant did not communicate why she wanted to call her husband. Indeed, the second time she asked to call her husband, it was in response to the final question in the Charter rights recitation – “Do you wish to call a lawyer now?” The appellant’s response – “I don’t know. I want to talk to my husband first” – implied that she wanted to talk to her husband to determine whether she should call a lawyer. The appellant’s response expressed uncertainty, and implied the need to call her husband for advice to clear up this uncertainty. The trial judge’s analysis at para. 27 of his reasons (set out above) is cogent. Nothing about her responses clearly suggested why she wanted to call her husband. Without clearly telling the officers why she wanted to make the call, the authorities make clear they were not obliged to allow her to make that call.

[25] For the same reason, there was nothing misleading about Constable Gill’s statement to the appellant that she was not permitted to call her husband. Again, as the trial judge observed, context matters. Constable Gill told the appellant that she could not call her husband in the context of a simple request to call her husband, with no explanation as to why. In that context, the officer’s statement to the appellant that she could not call her husband was not misleading. It is of no moment that the officer believed that the appellant was not permitted to speak with any third party directly, but only through police, to facilitate contact with counsel. To be clear, Constable Gill testified that “if [the appellant] needed a lawyer through her husband and had communicated that, I would have made that happen.” In this regard, I agree with the trial judge that it is questionable whether the right to contact a third party includes the right to speak to that person directly. That is especially so if a lawyer’s contact information can otherwise be obtained without such direct communication. [1] But it is not necessary to decide that question in this appeal. The appellant’s statements to the officer created no obligation to allow the appellant to call her husband directly, or through the police as an intermediary.

[26] In light of my conclusion that there was no breach of the appellant’s right to counsel, there is no need to address the application of s. 24(2) of the Charter.

5. Conclusion

[27] The trial judge’s decision that there was no s. 10(b) violation was correct. The appeal is dismissed. The order staying the driving prohibition and payment of the fine expires upon release of this judgment.

Rahman, J.

Released: July 12, 2023

Footnotes

[1] The appellant cited some cases that suggest that a detainee has the right to contact a third party directly: see for example R. v. Ellies, [2015] O.J. No. 4231 (C.J.), at para. 53; R. v. Nadesalingam, 2019 ONCJ 497, at paras. 49-50. Respectfully, it is difficult to see how this is a constitutional requirement. The police have a constitutional obligation under s. 10(b) to facilitate contact with counsel of choice. How they facilitate that access will depend on the circumstances. It is hard to imagine a case where the police could be found to breach a detainee’s s. 10(b) Charter rights because they obtained counsel’s contact information by speaking with a third party instead of permitting the detainee to do so directly. It is unclear to me what the nature of the breach would be in such a case.