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Police Powers | Right to counsel

No interference with accused’s right to counsel where police arrange contact with Punjabi speaking lawyer

Police Powers

By: Justice Michelle Fuerst, Michal Fairburn and Scott Fenton

2. No Right to Counsel Breach Where Police Arranged Contact with Punjabi Speaking Lawyer

Facts: A civilian called the police about a taxi that was weaving all over the highway. He followed the taxi until a police car fell in behind it and pulled it over. The police officer asked the accused driver to step out of the taxi. The officer detected an odour of alcohol on the accused’s breath, and administered a roadside screening test. The accused registered a fail. The accused questioned the result, so the officer allowed him to provide a second sample. The accused again registered a fail. The officer arrested the accused for impaired driving, and read him his rights to counsel in English. The accused initially resisted being handcuffed and placed in the police cruiser, until other officers arrived.

The accused was taken to a nearby police station. There a Punjabi speaking officer read him his rights to counsel and the breath demand, all in Punjabi. The arresting officer placed a call to the duty counsel answering system and left a message requesting a Punjabi speaking duty counsel. The Punjabi speaking officer then told the arresting officer that it might take a long time to hear back from such counsel. He said that he had a list of Punjabi speaking lawyers, and provided the list. The arresting officer made calls to the first two names on the list, without success. He was able to reach the third lawyer on the list. The accused had a private telephone consultation with that lawyer.

The accused was then taken for breath tests. The Punjabi speaking officer continued to interpret for him. The breath tests produced readings of 180 milligrams of alcohol in 100 millilitres of blood.

At his trial, the accused argued that his Charter s. 10(b) right to counsel was violated because the police effectively chose counsel for him by providing him with the names of Punjabi speaking lawyers. He sought the exclusion of the breath test results.

Held: Application dismissed.

The trial judge found that the police did not interfere with the accused’s exercise of his right to counsel. The accused knew of no-one to call. Rather than interfering with his right to counsel, the actions of the police assisted the accused in obtaining immediate legal advice in his own language. There was no evidence that he wanted something different, or anything more.

The trial judge observed that the s. 10(b) right to counsel means counsel who is acting and advising solely in the interest of the detainee, independent of any other party, particularly the police. Independence involves both actual independence and independence as perceived by the detainee. In the absence of evidence to the contrary, the trial judge stated that he made the assumption that a lawyer will act ethically and solely in the best interests of the client. Further, he observed that the scope for legal advice in this scenario is recognized as narrow, and the advice from any lawyer would inevitably be the same. He found that there was no real possibility of the police “steering” a detainee to a police-friendly lawyer in this situation, nor was there any evidence that the accused had such a concern.

Commentary: The trial judge noted that the Alberta Court of Appeal has over-ruled lower court decisions that held that the police should not provide a detainee with a list of lawyers, or even dial a lawyer’s telephone number for a detainee. In R. v. Wolbeck, [2010] A.J. No. 508 (C.A.), the court held that there is no prohibition on the police assisting a detainee in contacting counsel. The prohibition is on the police interfering with the right to contact counsel. This decision makes good sense, particularly in the context of a detainee who needs the assistance of a lawyer who speaks a language other than English (or French). It would be impossible for an arresting officer in that situation to comply with the informational and implementational components of s. 10(b), if he or she could not take steps to arrange for the detainee to speak to a lawyer in the language that the detainee understands. Further, depending on the particular language or dialect and the jurisdiction involved, the list of lawyers able to give advice to the detainee may realistically be very limited, and necessarily consist of counsel well-known to local police officers.

R. v. Grewal (2015), 2015 CarswellOnt 14624, 2015 ONCJ 517 (Ont. C.J.)

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