Ontario Criminal

Charter of Rights

Police failed to fulfil duty to provide reasonable opportunity for accused to consult counsel of choice

Application to exclude evidence. Motorist observed accused swerving into lanes without signaling, causing motorist to change lanes to avoid a collision. Motorist phoned police. Accused ignored officer’s police lights and siren for almost a kilometer while officer mouthed and signaled to him to pull over. Once stopped, officer observed extreme odour of alcohol emanating from vehicle and that accused’s eyes were red and bloodshot. Accused was arrested for impaired driving. At station, officer phoned lawyer of accused’s choice and left message. Officer then phoned duty counsel. Accused repeatedly and forcefully asked to speak to his own lawyer. Duty counsel phoned back and accused spoke to duty counsel. Another call was placed to accused’s lawyer of choice. Accused provided sample of his breath 10 minutes later. Application granted. Accused’s rights under ss. 8 and 9 of Canadian Charter of Rights and Freedoms were not infringed. Officer had reasonable and probable grounds for arresting accused, based on extreme smell of alcohol in accused’s car when she opened door alone. Accused’s right to counsel of choice under Charter s. 10(b) was infringed. Police failed to fulfill their duty to provide reasonable opportunity for accused to consult counsel of his choice. Sarcastic and dismissive comments by officer undermined reasonable efforts. Accused’s right to instruct counsel was infringed when officer would not wait past approximately 10 minutes that had elapsed since second call to accused’s lawyer and in insisting that accused provide breath sample without providing reasonable explanation as to why he would not wait. To admit test results would bring administration of justice into disrepute.

R. v. Samatar (

Oct. 7, 2011, Ont. S.C.J., Knazan J.) 97 W.C.B. (2d) 443 (17 pp.).

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