Ontario Criminal

Criminal Law

Charter of Rights and Freedoms

Arrest or detention [s. 10]

No legal obligation on police to permit contact with third party or inquire why detainee wished to make contact

Accused was arrested after he crashed into back of tractor trailer that was travelling at speed limit and failed roadside screening test. Accused provided two samples of his breath at police station, and was charged with driving over 80. Accused claimed, in part, that his right to counsel was denied because officer at station did not allow him to call friend who was police officer. Accused was uncertain of what to do, he had no lawyer in mind but he reasonably believed that his friend knew several lawyers with whom he could speak. Accused brought successful application for order to exclude evidence because his rights under s. 10(b) of Canadian Charter of Rights and Freedoms were violated, and accused was acquitted at trial. Crown appealed acquittal. Appeal allowed. Acquittal was set aside and conviction was entered for one count of driving over 80. Trial judge erred in law in finding obligation on police to facilitate call with accused’s friend who was police officer. When detainee did not indicate to police why they wished to contact third person, there was no legal obligation on police to permit contact with third party or make further inquiries on reason detainee wished to make contact. Trial judge did not appear to have considered information police gave accused in context of information that had already been provided, which included standard caution and expressly telling accused he had right to contact “any lawyer”. Totality of information provided could not have led accused to believing he could not call lawyer unless he already had one.

R. v. Mumtaz (2019), 2019 CarswellOnt 597, 2019 ONSC 468, Woollcombe J. (Ont. S.C.J.); reversed (2018), 2018 CarswellOnt 3349, 2018 ONCJ 139, G. Paul Renwick J. (Ont. C.J.).

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