R. v. Samatar, 2011 ONCJ 520

Citation: R. v. Samatar , 2011 ONCJ 520 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN Respondent -and- ALI HASSAN SAMATAR Applicant REASONS FOR JUDGMENT Appearances: For the Crown: Ms. Rebecca Law For the Applicant: Mr. Brian Brody Introduction Mr. Samatar applies under s. 24(2) of the Charter to exclude the intoxilyzer results of his breath tests from evidence.

He alleges that the arresting officer did not have reasonable grounds to make a demand that he provide a sample of his breath into an approved instrument, and that therefore the samples were obtained as the result of an unreasonable search, contrary to s.8 of the Charter . He further argues that as there were no reasonable grounds to make the demand, there were no reasonable grounds to arrest him and that his detention in the police station was arbitrary, contrary to s.9 of the Charter. Then, in a completely different part of the case, he alleges that the intoxilyzer technician violated his right under s.10(

b) of the Charter when he refused to delay the test long enough for Mr. Samatar’s lawyer, who Samatar was forcefully and repeatedly requesting, to call back. Based on these two violations, or either one of them standing alone, he submits that the admission of his breath readings would bring the administration of justice into disrepute, within the meaning of s.24(2) of the Charter. The Demand and the Arrest On November 18, 2010, Officer Taylor Plumley responded to a radio call. A civilian, Mr. Johnson, who happened to be a ministry of transport officer, reported that he had observed Mr. Samatar driving terribly.

He was travelling in the far left lane of Highway 410 but swerved right in front of Mr. Johnson without signalling and came within a foot and half of him. Mr Johnson had to switch lanes to avoid Mr. Samatar and then he saw Samatar cross over again from the middle lane to the far left lane. He called the police and followed him. Mr. Samatar travelled at speeds between 80 and 130 kilometers per hour. Johnson then observed while the OPP officers who responded to his call pulled Mr. Samatar over. He testified that he saw two cars to the left of Samatar’s and one to the right.

This turned out to be wrong as only Constables Flowers and Taylor Plumley pulled Mr. Samatar over in their cars. Mr. Johnson also testified that all of the cars had their lights and sirens on. Johnson’s specific observations that could contribute to reasonable grounds for arrest were never communicated to Taylor Plumley; all that she had from the civilian was that he had observed bad driving. Nor did Constable Flowers share any observations with Taylor Plumley before she arrested Mr. Samatar.

So his observations of observing Taylor Plumley starting to follow Samatar and then pulling him over cannot contribute to the grounds for the arrest or the demand to provide a breath sample. The officer who decides to arrest must have knowledge of the grounds that support both the objective and subjective basis for the reasonable grounds: R. v. Debot [1989] 25 C.R. 1140 paragraph 50. Therefore everything turns on what Taylor Plumley observed. Taylor Plumley pulled up directly beside Mr. Samatar with her lights and her siren on. Samatar stared straight ahead as he drove and would not make eye contact.

The officer turned on her alley light which was a separate light that she shone on his car. The driver continued to stare straight ahead. Shethen changed the siren tone and Mr. Samatar looked at her and continued driving. He was weaving within his lane and varying his speedbetween 80 and 100 km. per hour, sometimes slowing down dramatically. She pulled him over with Constable Flowers in the rear andafter about a kilometer, Mr. Samatar pulled over. Taylor Plumley testified that he did not stop safely on the shoulder but in a lane oftraffic, but Officer Flowers did not observe that.

Taylor Plumley approached the car and describes the driver as still having a blank stare. She opened the car door and there was anextreme odour of alcohol in the vehicle. The driver’s eyes were red and bloodshot and he had some white substance in his mouth and sheconcluded that the strong smell of alcohol was coming from him. Although she had an approved screening device with her, she decidedthat she had reasonable grounds to believe that his ability to operate a motor vehicle was impaired and she arrested Mr. Samatar.

It isclear from her evidence and the demand that she ultimately made that she was of the opinion that his ability to operate a motor vehiclewas impaired by alcohol. She also testified that he first declined to exit the vehicle and then did but that he staggered and walked zig zag. As these observationsfollowed the arrest, they cannot contribute to the grounds for arrest, but Mr. Samatar relies on them to attack Taylor Plumley’scredibility because Flowers, who was right there, did not make these observations.

I will return to Officer Taylor Plumley’s evidence after arrest and after assessing her reasonable grounds to arrest, as it is relevant to thealleged violation of s.10(b). Reasonable Grounds Most

definitions of reasonable grounds are circular because they employ the word reasonable in the definition. For example in R. v.Storrey (1990) (SCC), 53 C.C.C. 316, Justice Cory said; “That is to say a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable groundsexisted to make the arrest”. This suggests that the concept of reasonable cannot be further defined-it is for the officer to decide and a judge on a motion such as thisto assess based on what a reasonable person would think.

One example of an elaboration that also uses the word reasonable but goessomewhat further, is that found in R. v. Roberge, (1983) (SCC), 4 C.C.C.(3d) 304, where Justice Lamer agreed withthe following statement: “In order to constitute reasonable and probable grounds, it is not sufficient that the peace officer believed “in good faith” in theirexistence, rather his belief must be based on reasonable and probable grounds [Hopper v.

Clark (1911), (NB KB), 40N.B.R. 568, C.A.] mere suspicion or the desire to obtain information does not permit, in a case where the accused refuses to answer, hisarrest without a warrant [Joechlin v. Waugh and Hamilton (1957) (ON CA), 118 C.C.C. 24, C.A., Ont.] It is essentialthat the peace officer come to the conclusion that all ordinary people (i.e. the average person) would have come to in the samecircumstances. “ Most recently in R. v. Bush, 2010 ONCA 554 , 259 C.C.C. (3d) 127, the Ontario Court of Appeal has suggested that reasonablegrounds in a case of impaired driving are not a high standard.

Justice Durno reviews the many possible factors that can be relevant to anassessment of reasonableness and reaches the conclusion, among others, that an officer can rely on hearsay that there is a possiblyimpaired driver. Here, in my opinion, the failure to show any response to a police car with lights and sirens right beside a driver’s car, combined with theintitial report of a possible impaired driver, and the strong smell of alcohol in the car with only one occupant provides reasonable andprobable grounds to believe that the driver’s ability to operate a motor vehicle is impaired by alcohol.

Even if Taylor Plumley could notsay that the alcohol was coming from Mr. Samatar, the reasonable inference is that it was since it was strong and he was the only one inthe car. She was not required to investigate whether there was alcohol in the car. R.v. Bush, paragraph 70. Weaving within the lane and varying speed while not speeding are not strong indications of impaired ability; the concept of weavingwithin the lane is too vague and not very informative without regard to the vehicle size and width of the lane. But these observationscertainly did not detract from the grounds. Mr.

Samatar, while not going that far, almost concedes that there were reasonable grounds if I accept officer Taylor Plumley’s evidence,but submits that I should not because it contradicts Officer Flowers’ evidence with respect to whether they were in radio contact, whetherthey did a rolling stop and whether he was beside her when Samatar got out of the car and whether Samatar staggered. I observed andhave considered the way that Taylor Plumley answered questions which includes her attitude toward defence counsel. I find her to be acredible witness. She explained her differences with Flowers.

She was describing a joint stopping with him and even if they were not inradio contact about the procedure, they were in radio contact. She testified that she had a lot to contend with and that she was not payingattention to Flowers. Counsel submits that she shifted her ground about what she noted and what she did not when challenged. But I do not reject her evidenceof her observations about Mr.

Samatar ignoring her police lights and siren and extra police light and driving almost a kilometer while shemouthed to him and signalled to him to pull over, or that there was an extreme smell of alcohol in his car when she opened the door. Thatalone gave her grounds to arrest, for in the words of Roberge, all average or ordinary people would have come to the same conclusionthat she did. There is no violation of either s.8 or s. 9 of the Charter. The s. 10(

b) breach

In order to assess this part of Mr. Samatar’s motion, I return to the facts after Officer Taylor Plumley legally arrested Mr. Samatar, at 12:36 a.m. She read him his rights to counsel from the back of her memo book and asked Mr.Samatar if he had his own lawyer. He said “Yeh, I do.” She asked him if he wanted to speak to his own lawyer and he replied “I just want to talk to my lawyer”. At 12:39 a.m. she read him a demand to provide a sample of breath into an approved instrument and asked him if he understood.

He answered “No, I didn’t understand that.” He asked why he did not blow right now and said that he had only one beer, and he repeated this a few times. After arranging for the car to be towed and allowing Mr. Samatar to retrieve his belongings, Officer Taylor Plumley drove him to the police detachment. They arrived at 12:52 and by 12:55 Officer Taylor Plumley was working on getting Mr. Samatar his call to a lawyer. He fumbled with some business cards but then provided a name, Kamal. He did not know if it was a first name or a last name. He provided the number of a friend who might know the number of the lawyer.

Officer Taylor Plumley called the friend, Mohammed, at 1:08 a.m. The friend referred to Mr. Kamal but did not seem to know whether that was a first name or a last name either. He provided a phone number and said that there was an immigration lawyer and ticket lawyer named Kamal. At 1:09 a.m., Taylor Plumley called the number that Mohammed gave her. There was no answer but rather a Telus voice service that just instructed the caller to leave a message. Officer Taylor Plumley left a message that Samatar had advised that this was his lawyer and he wished to speak to him. She left the detachment phone number.

Then, at 1:14, Officer Taylor Plumley without being asked to and without discussing the matter with Mr. Samatar, put in a call to duty counsel. She did this because in her experience, the counsel of choice often does not call back. At 1:16 the officer told Samatar that he had left a message for his lawyer. She also told him that he could speak to duty counsel but that if at any point his lawyer did call back he would have the opportunity to speak to him. Duty counsel called at 1:40 a.m. Kamal had still not called.

Samatar spoke to duty counsel in private for some time after Taylor Plumley filled in duty counsel about the arrest till when he left the booth at 1:58. At 1:59, Officer Taylor Plumley presented Samatar to Officer Gomes. She also checked in the 2009 lawyer’s directory for the last name of Kamal without success. She also called back the number that Mohammed had given her at 2:02 and left another message. She came into the breath room at 2:08 to advise that she had done so. The entire interaction between Gomes and Samatar from the time that Mr. Samatar enters the breath room is on video tape. Before Mr.

Samatar comes in, Officer Gomes introduces the tape by stating that Mr. Samatar is speaking to duty counsel. From the moment that Mr. Samatar enters the video picture in the breath technician’s room he asks to speak to his lawyer. He never ceases to request to speak to his lawyer, even though he had spoken to duty counsel for some period almost 17 minutes. He appears neither intoxicated nor belligerent. Crown counsel does not contend that he was stalling or pretending to avoid providing a breath sample.

He tells Officer Gomes that he is going to blow into the machine but that he just wants to speak to his lawyer first. At one point he explicitly asks if they can’t just wait until his lawyer calls back, because it is only 5 minutes since the second call. Just as insistent as Mr. Samatar is that he wants to speak to his lawyer, Officer Gomes takes the position there is nothing more that the police can do for him and that Mr. Samatar is going to provide a breath sample. He acknowledges, as he puts it on the record, that Mr. Samatar has the right to speak to his lawyer.

I will address some of the exchange but just as Justice Blair stated in R. v. Tremblay , 77 C.R. (6 th ) 317 that a picture is worth a thousand words while attaching a photograph to the Court of Appeal’s reasons for judgment. I would if it were more practical, attach the video tape to these reasons. It is not possible to entirely appreciate what occurred without watching it. From the outset, before he sits down, Mr. Samatar says that he wants to speak to his lawyer. Gomes does not hear him and says “pardon”. Samatar repeats that he wants to speak to his lawyer and Gomes just asks him to sit down. Mr.

Samatar repeats throughout the preliminary step of being advised that the interview is being videotaped that he wants to speak to his lawyer. Officer Gomes addresses Mr. Samatar’s request but appears to be losing patience. They actually argued with each other. There are several exchanges in which the officer is almost sarcastic and somewhat dismissive of Mr. Samatar’s concerns. He asks Samatar if he wants the police to kidnap his lawyer. He asks him if he wants the police drive to his lawyer’s house and pull him out of bed. He on more than one occasion asks Samatar what he, Samatar, wants the police to do.

Samatar does not answer this apart from repeating that he wants to speak to his lawyer, except, once, when he asks the officer to wait. This is at the culmination of an argument and in my view, Samatar wins the argument. Gomes asks Samatar what he wants the police to do. He tells him that all the police can do is call and hope he calls back. He says that he hopes he calls back. When Samatar asks so why don’t I talk to him, Gomes says that he is not going to continue the conversation. He tells Samatar that his job is to get the two breath samples and that by law he has to provide them.

He also reiterates that he, Samatar, has the right to talk to his lawyer. At this point Gomes does not know how many times Taylor Plumley has called or how long before. He never learns that the number was from a friend, that Taylor Plumley did not know if it was a first or last name, that Taylor Plumley was not sure that she had been given the right number because she got a Telus answering service without a name. Taylor Plumley enters at 2:08 and says that she left another message at 2:02. Gomes states at that point, six minutes after the second message, that he is not continuing the discussion, although he does.

It is at this point that he tells Samatar that all the police can do is call unless they go drag the lawyer out of bed and asks Samatar “What would you like me to do?” Samatar is silent, but then after a short exchange asks “just call”. Gomes answers that “We’ve done that.” Samatar asks “Why can’t we wait”. Gomes says she called again and Samatar says “five minutes ago.” Samatar asks what his rights are and is told he has to blow. The officer tells him your rights are you have to provide a breath sample.

Gomes, having told him that he had a right to speak to his own lawyer, then states that he has spoken to a lawyer - duty counsel. He also

said that he was not going to play this game any longer. Officer Taylor Plumley testified that in her experience, the lawyer’s directory is the best chance of finding a lawyer’s number and she didnot resort to the phone book or the internet. There is no evidence as to whether or not there is a member of the bar named Kamal inToronto. Mr. Samatar never said that he was satisfied with duty counsel. The police duty to facilitate counsel of choice The police informed Mr. Samatar of his rights, attempted to contact the counsel that he chose and arranged for him to speak to dutycounsel. As the officer recognized, Mr.

Samatar was entitled to speak to counsel of his choice, subject to his obligation to be diligent; R. v. Richfield, (ON CA), 14 C.R. (6th) 77 and R. v. Brydges (SCC), 53 C.C.C. (3d) 330. The policehave a duty to facilitate that right: R. v. Richfield. Therefore, although there are many aspects of this application that have to beconsidered in order to resolve it, the issue reduces to whether or not the police fulfilled their duty to make reasonable efforts to facilitateSamatar’s contact with his own lawyer.

An accused’s right to a particular lawyer is bound up with an obligation on the part of the police to give the accused a reasonableopportunity to exercise the right to counsel of choice and an obligation to hold off questioning the accused so long as the accused isreasonably diligent in exercising the right: R. v. Badgerow, 2008 ONCA 605 , 237 C.C.C.(3d) 107 paragraph 44, citingR.v.Bartle (1994), (SCC), 92 C.C.C. (3d) 289(S.C.C.) and R.v.Manninen (1987), (SCC), 34 C.C.C. (3d)385(S.C.C.). From this then, three questions arise: 1) Did Mr. Samatar ask to speak to counsel of choice?

The answer is obviously yes. 2) Did the police give Mr. Samatar a reasonable opportunity to exercise his right to counsel of choice? 3) Was Mr. Samatar reasonably diligent in exercising the right? Did the police give Mr. Samatar a reasonable opportunity to exercise his right to counsel of choice? With the answer to the first question obvious, I turn to what happened in relation to the police obligation. Officer Taylor Plumley did thefollowing in order to facilitate Mr. Samatar speaking to the lawyer he named.

She called Mohammed, she obtained a number, she calledthe number, and she left a message on the Telus answering system. She also looked up the name Kamal in the 2009 Lawyer’s directory,and called a second time. She also called duty counsel because of her experience that lawyer’s often did not call back. Officer Gomes, for his part did not do anything apart from receive information from Officer Taylor Plumley. He entirely relied on herefforts. Some of the comments he made to Mr. Samatar in response to Samatar’s request to speak to his lawyer actually undermined thereasonable efforts. I shall provide some examples.

For instance on one occasion he asked Mr. Samatar what he wanted the police to do. To make matters worse, Gomes asked the questionin a joking sarcastic manner. But there is no obligation on the accused to give himself the reasonable opportunity, that is, the obligationof the police. At another point, in answer to Mr. Samatar saying that he wanted to know his rights, Officer Gomes answered somewhat dismissively orsarcastically that his right was to blow into the machine.

This had the effect of negating all the reasonable steps that Officer TaylorPlumley was taking because as far as it can be understood, it could only be taken to mean that there was no right to consult counselbefore providing a breath sample. At another point, Officer Gomes advised Mr. Samatar that the law required him to blow into the machine.

There may be little scope forlegal advice when a client calls a lawyer from the police station to consult about a demand to provide a sample of breath into anapproved instrument but at the very least a lawyer might rarely properly advise a client that they need not provide a breath sample if theyhave a reasonable excuse. This however is not the point. It has long been established that in determining whether the right to counsel hasbeen violated, the court is not to speculate on what legal advice counsel may have given. R.v.Black (1989) (SCC), 50C.C.C. (3d) 1(S.C.C.) paragraph 26 per Wilson J.

So Officer Gomes did not only facilitate the request but effectively neutralized it. This brings me to the relationship between Officer Taylor Plumley’s efforts and Officer Gomes. Although Taylor Plumley’s efforts couldhave gone farther, such as looking for the name Kamal in the phone book or doing a search on a computer in the police station, or callingMohammed back in order to ensure that he had given the correct number, she did make reasonable efforts and she communicated them toOfficer Gomes. However, Gomes would not wait more than the six minutes since the time that Taylor Plumley called a second time.

Nor could he give a

reason to Mr. Samatar when he asked him if they could wait when the officer had called a second time only five minutes before. OfficerGomes was frank that he was not worried about time and was not even worried about the time limits set out in the Criminal Code. Inview of that, it was not reasonable not to wait another period of time, or at least engage in a reasoned exchange with the detainee as towhy he could not wait a further reasonable amount of time. Since the police acted unreasonably, they did not fulfill their duty to provide a reasonable opportunity for Samatar to consult counsel ofhis choice. Was Mr.

Samatar reasonably diligent in exercising that right? The accused also has a duty to exercise their right to counsel diligently. Samatar asked to speak to his lawyer as soon as Taylor Plumleyarrested him and told him his rights and he never stopped. He did everything he could when asked and provided the name andMohammed’s phone number. He did not ask her to call duty counsel. He spoke to duty counsel and did not refuse to, but it made nodifference to him as he continued to request counsel of his choice.

He never told either officer that he was not satisfied with duty counselbut he continued to ask to speak to his lawyer every time Gomes referred to his consultation with duty counsel. The presence of duty counsel in a jurisdiction is relevant to the accused obligation to exercise due diligence. As discussed in R. v. Richfield, (ON CA), 14 C.R. (6th) 77, quoting R. v.

Prosper (1994) 2 C.C.C. (3d) 53: “As the majority in Brydges suggested, the existence of duty counsel services may affect what constitutes”reasonable diligence” of adetainee in pursuing the right to counsel, which will in turn effect the length of the period during which the state authorities’ s. 10(b)implementational duties will require them to “hold off” from trying to elicit incriminatory evidence from the detainee. (emphasis addedby Justice Weiler in Richfield.)” paragraph 9. Crown counsel relies on Richfield, a case in which the Court of Appeal found that the trial judge and the

summary conviction appealjudge failed to appreciate the significance of the availability of duty counsel as a factor in determining whether the appellant exercisedhis right to counsel with reasonable diligence. I agree that Richfield governs this case, but in the opposite way that Crown counselcontends. In the paragraphs following her citation of Prosper and Brydges and her finding that the trial judge erred, Justice Weilerdescribes what Richfield should have done in order to diligently exercise his rights.

The whole passage is so pertinent to demonstratingthe differences between Richfield and this case that I set it out in full: “It may be that initially the police were not as diligent as they could have been in facilitating the appellant's access to counsel of hischoice after calling the lawyer's number and getting the answering service. They could have called the lawyer's number again or tried tofind his home telephone number in the phone book. However, the police waited for over an hour for the lawyer to call back and duringthat time the police refrained from making any further demands upon the appellant.

More importantly, the police followed up in trying tomake counsel available to the appellant. When the lawyer had not phoned back, the police offered the appellant the assistance of dutycounsel”. “The appellant, upon being informed that the lawyer that he had asked the police to call had not called back, did not ask to make a furthercall to his counsel of choice or to another counsel. When asked if he wished the assistance of duty counsel, the appellant indicated that hedid not. The appellant was not reasonably diligent in exercising his right to counsel in the circumstances.

The fact that the police couldhave made greater efforts earlier does not detract from the appellant's own lack of diligence at a later stage in exercising his right tocounsel”. Paragraphs 11 and 12. The differences in this case are stark. In this case the police did wait an hour, but after Taylor Plumley placed the second call, whichmust have had some purpose in the officer’s mind, Gomes did not wait at all. This is one distinction from the factors that Justice Weilerfound important in Richfield. But more importantly, Richfield declined to speak to duty counsel. Mr.

Samatar spoke to the lawyer that Officer Taylor Plumley hadarranged even though he never asked for duty counsel, nor was asked if he wanted the call made. Then unlike Richfield, who, importantly in the Court of Appeal’s judgment, did not ask to speak to his lawyer again after he spoke toduty counsel, Mr. Samatar never stopped repeating the same request that he stated for the first time at the road side, that he wanted tospeak to his lawyer. The existence of duty counsel in the community is one factor to be considered when evaluating due diligence of an accused. It is notdeterminative.

Samatar spoke to a lawyer that he had not asked for before there was a definitive answer about his lawyer. AlthoughGomes at first said he was not going to play the game, he then thought it relevant that Mr. Samatar had spoken to duty counsel. In submitting that Mr. Samatar’s call to duty counsel addressed his wish to speak to a lawyer, Crown counsel relies on R. v. Blackett,[2006] O.J.

No. 2999 where Justice Ferguson wrote: “It would appear from the decision in Richfield that a good faith perfunctory effort by the police to locate counsel of choice is sufficientto “suspend the correlative duties of the police” if it is followed by an offering of access to duty counsel and that the failure by theaccused to take advantage of duty counsel”.

Justice Ferguson did not go further than to say “it appears” from Richfield that a perfunctory effort by police is sufficient, but withrespect, Justice Weiler does not use the word “perfunctory” and in my opinion, the dictionary definition of “perfunctory”: merely for the

sake of getting rid of the duty; done as a piece of routine or form’s sake (The Shorter Oxford English Dictionary on Historical Principles) is inconsistent with the real obligation that the police have to facilitate communication with counsel of choice. In any event, Taylor Plumley’s efforts were not perfunctory; it was the failure to follow through on them when Samatar asked to wait longer that violated his right. And, he did not fail to take advantage of duty counsel as in Richfield and Blackett . Blackett does not govern this case. Since Justice Ferguson used the word “appears” to describe her

interpretation of Richfield , I do not consider myself bound by this statement of a superior court judge sitting on a

summary conviction appeal. Crown counsel also compares Mr. Samatar’s request to speak to his lawyer after speaking to duty counsel to the accused police officer in R.v.Toth , [1997] O.J. No. 4079 who stated that she was not provided with useful information by her association representative or by duty counsel. In that context Justice Vaillancourt held that it was hard to imagine what else the police could have done to ensure compliance with s.10(

b) of the Charter. Mr. Samatar made no such statement. He spoke to a duty counsel who he did not ask for and then continued to ask in a reasonable fashion to delay the tests until he could speak to his lawyer. As I have reviewed above, it is not hard to imagine what more Officer Gomes could have done, he could have waited as Mr. Samatar requested him to and determined from Officer Taylor Plumley if there were any other steps that she had not taken to contact Mr. Samatar’s lawyer. I find that Mr.

Samatar has established that his right to instruct counsel was infringed when Officer Gomes would not wait past the approximately 10 minutes that had elapsed since Taylor Plumley called a second time and insisted that he provide a breath sample without providing a reasonable explanation as to why he would not wait. s.24 (2) In order to succeed on his application to exclude the evidence, Mr. Samatar must establish that admission of the results of his intoxylizer tests would bring the administration of justice into disrepute.

This inquiry has three parts, the seriousness of the Charter -infringing state conduct, the impact of the breach on the Charter -protected interests of the accused and society’s interest in the adjudication of the case on its merits: R. v. Grant [2009] S.C.R. 352. The Seriousness of the Breach There is no breach arising from Taylor Plumley how Officer Gomes interacted with Samatar once their discussion got into the real issue of whether he could speak to his lawyer.

At the beginning, although he had ignored Samatar’s original request while he was still standing up, Officer Gomes was patient and explained the attempts that he understood Taylor Plumley had made. But very quickly he became, if not confrontational with Samatar, then closed to him. This led to the unfortunate comments that I have described above, about getting the lawyer out of bed, kidnapping him, asking Mr. Samatar what he wanted the police to do, telling him that his right was to blow into the machine when he asked what his right was and giving him legal advice when he was in no position to do so.

This in my view makes this a serious violation of Mr. Samatar’s right to counsel in the very sense that the Supreme Court uses the term in R. v. Grant , that there is a need for the Court to disassociate itself from the conduct: paragraph 73. It was not inadvertent or minor on the part of the officer; it was a stance that he adopted. He may have questioned the sincerity of Mr. Samatar but he never said that. Nor did he say that he was in any way pressed for time. He just thought there was nothing he could do so he threw his obligation back onto the person in custody by asking him what the police should do.

There are points in the tape where it seems that Mr. Samatar is in the repetitive mode of a drunk person. If I in any way concluded that Mr. Samatar was using his right to counsel to delay his tests, I would not even have found a breach. But in the face of the consistent and sincere and polite request to speak to his lawyer, the response in this case was serious charter-infringing state conduct. Impact on the Charter- Protected Interests of the Accused According to R.v.Grant , this inquiry calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed.

Mr. Samatar did speak to a lawyer, duty counsel. It is not clear that Mohammed gave Taylor Plumley a correct number for Kamal. There is no evidence that Kamal was actually a member of the bar or that he picked up his phone messages at two in the morning or that he would have ever called back. The tests taken without waiting a longer time to see if counsel called lead to the obtaining of highly reliable almost unchallengeable evidence of the crime-the driver’s blood alcohol levels reflected by his breath test results.

This part of the inquiry leads me to conclude that the impact on the Charter protected right was not serious. But it is not the case that there was no impact on the Charter protected right. Though the situation unfolded much as it would had there not been a breach, Samatar was given the right to counsel and asked legitimately to exercise but still was required to provide evidence, while detained without having his request adequately addressed by the police waiting or providing a reason why they were not. Mr.

Samatar did not testify but because of the video tape he did not really have to for the Court to have evidence about how he felt about the procedure - bewildered. To be offered the right to counsel and then denied it does have some impact on the Charter protected right, if not on the actual admission of evidence or fairness of the trial. Therefore the same factors which make the brief serious are significant in assessing the impact of the Charter protected interest. Society’s interest in an adjudication on the merits

The charges against the applicant are serious, both offences in s.253 of the Criminal Code , and society has a strong interest in them being adjudicated on the merits. The breath readings are essential to the prosecution’s case on the charge of operating a motor vehicle with more than 80 milligrams of alcohol per 100 millilitres of blood and could be helpful on the charge of impaired operation of a motor vehicle if expert evidence were to be called. There is no concern of reliability.

Both factors of the public interest that arise from the seriousness of the charges discussed in Grant , paragraph 84, are present here. There is a high public interest in seeing Mr. Samatar’s case adjudicated on the merits and failing to effectively prosecute this charge with reliable evidence when Mr. Samatar spoke to a lawyer and his lawyer had not called in over half an hour could lead people to view the justice system negatively. But the longer term repute of the justice system could be affected negatively if tests taken in the face of a strong sincere request for counsel could be used by the police.

It could actually have the result of creating an understanding of police obligation closer to the perfunctory one suggested in Blackett , above, that I have referred to. Having conducted the three inquiries mandated by Grant immediately above, I do not propose to restate my conclusions on each branch but rather to determine on balance, whether the admission of the evidence would bring the administration of justice into disrepute. All of the circumstances encapsulated by the three inquiries inform my conclusion.

To the extent that the impact on the Charter interests favours admission, the seriousness of the state conduct supports exclusion. I return to the impact that the video tape makes when viewed and that can only partially be captured in a written judgment. To admit the test results obtained after this particular exchange between a detainee who did nothing wrong and nothing to delay or impede the investigation, with no power and the police with all the power in the situation would in all the circumstances bring the administration of justice into disrepute. The evidence is excluded. Justice B. Knazan October 7, 2011