Charter 10B

R v Charitar

Unreported

Her Majesty the Queen v. Krishnan Charitar

Ontario Court (Provincial Division), Regional Municipality of Durham
The Honourable Judge R.J. Richards | April 25, 1996

Background

Krishnan Charitar was stopped during a roadside screening process and asked if he had been drinking and whether he would blow into the roadside device. Charitar immediately said "I'd like to speak to my lawyer." The officer told him there was no need to talk to a lawyer at that point because "you're not charged." Charitar failed the roadside test, was arrested, given his Charter rights, and taken to the station.

At the station, Charitar again told the officer "I'd like to speak to my lawyer." The officer never asked who his lawyer was or for any contact information. Instead, duty counsel eventually called the station, and Charitar was brought to a room to speak with duty counsel — someone he had never chosen and didn't want. After this call, he provided breath samples that formed the Crown's case.

Issues

1. Did the police breach Charitar's Charter right to counsel of choice under section 10(b)?
2. Should the breath test evidence be excluded under section 24(2)?

The Right to Counsel of Choice

Judge Richards found that the police committed a fundamental breach of Charitar's Charter rights. The accused had clearly stated twice that he wanted to speak to "my lawyer" — indicating he had a specific lawyer in mind. The officer never asked the simple question: "Who is your lawyer?" Instead, the police simply arranged for duty counsel to call, forcing Charitar to accept legal advice from someone he hadn't chosen.

The judge rejected the Crown's argument that Charitar should have shown "greater diligence" in providing his lawyer's name. As Charitar testified: "I never gave it. I was never asked." The court found this placed accused persons in an impossible position — they're expected to volunteer information that police never bother to request. The judge noted it would not have been "very difficult" for the officer to ask this basic question.

Key Takeaway

Police must ask who your lawyer is when you say you want to contact "my lawyer" — they can't just assume you'll accept duty counsel.

If you have a specific lawyer and say you want to speak to "my lawyer," the police should ask for contact information. If they don't, and force you to speak only to duty counsel, that's a Charter breach that can exclude all the evidence flowing from your detention.

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R v Germanis2

[2001] O.J. No. 2935

No summary has been written for this decision yet.

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R v Hogan [2006] ONCJ 9

[2006] ONCJ 9

No summary has been written for this decision yet.

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R v Malik

[2001] O.J. No. 4547

No summary has been written for this decision yet.

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R v Milne

[1996] O.J. No. 1728

No summary has been written for this decision yet.

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R v Richards 2017 ONCA 424

2017 ONCA 424

No summary has been written for this decision yet.

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R v Sandhu

2009 ONCJ 77

R. v. Sandhu

2009 ONCJ 77
Ontario Court of Justice — Justice of the Peace Kenneth W. Dechert | February 25, 2009

Background

On December 15, 2006, at 7:00 p.m., Constable Mark Urie was stopped in the southbound left turn lane on Waterdown Road in Burlington, waiting for a red light. Heavy traffic, clear cold weather, dry roads, artificial lighting illuminating the intersection. As the east-west light turned from green to amber, he heard an engine "revving very high" and looked right to see a lone eastbound vehicle approaching on Plains Road — a distinctive black Honda Prelude with a modified muffler.

The officer estimated the vehicle was traveling at "no less than 120 kilometres per hour" when he first spotted it 200 metres from the intersection. He counted a five-second amber light, followed by a two-second all-red phase. According to Constable Urie, the Honda entered the intersection approximately one second after the north-south light had turned green — meaning it was facing a solid red. He pursued, caught up (other traffic slowed the Honda down), and ticketed Gurvir Sandhu for red light — fail to stop under section 144(18) of the Highway Traffic Act.

Issues

1. Did the defendant enter the intersection while facing a red traffic signal?
2. How should credibility be assessed when there are conflicting witness accounts?

The Credibility Battle

This case came down to a classic "he said, he said" between the officer and the defendant. Sandhu testified that he was driving 50-60 km/h eastbound when the light turned yellow. He was 40-50 feet from the stop line, had cars behind him, and decided he couldn't safely stop without getting "stuck" in the middle of the intersection. So he accelerated slightly to 65 km/h to clear the intersection on the yellow — and maintained throughout his testimony that he never saw a red light.

The judge applied the R. v. W.(D.) credibility framework: even if you don't believe the defendant, you must acquit if his evidence leaves you with reasonable doubt. The key problem with the officer's testimony? He admitted he was "focusing" on when the light was "going to turn red" and couldn't say where Sandhu's vehicle was relative to the stop line at the moment the light changed. His observations of the vehicle's position happened "in a matter of one or two seconds" while his attention was drawn to traffic lights to his left, not the approaching vehicle to his right.

Key Takeaway

Even rock-solid police testimony can have gaps that create reasonable doubt.

The officer's inability to pinpoint exactly where the defendant's vehicle was when the light turned red — combined with his admission that he was watching the lights rather than tracking the vehicle's position — was enough to sink the prosecution's case. In red light cases, precise timing and positioning matter enormously.

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R v Sandhu [2017] ONCJ 226

[2017] ONCJ 226

No summary has been written for this decision yet.

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R v Simpson

2017 ONCJ 321

R. v. Simpson

2017 ONCJ 321
Ontario Court of Justice — Justice P.A. Schreck | May 18, 2017

Background

At 12:50 a.m. on March 13, 2016, Bhamu Mallick was driving with his family when he spotted a grey Infiniti swerving between lanes and driving erratically. The driver was going well below the speed limit and almost hit Mallick's van, prompting him to call 911. Constable Joseph Crouse of Peel Police responded and pulled over Fitzroy Simpson at 1:12 a.m.

When Crouse approached the vehicle, he noticed Simpson fumbling with the window controls and detected a strong smell of alcohol. Simpson was unsteady on his feet and appeared drowsy. Crouse arrested him for impaired driving at 1:14 a.m., handcuffed him, and placed him in the back of the police cruiser. But instead of immediately reading Simpson his Charter rights, Crouse returned to Simpson's car to search for identification and seized an unspecified item from the vehicle.

Issues

1. Did the officer's delay in advising Simpson of his right to counsel violate section 10(b) of the Charter?
2. Should the breath test evidence be excluded under section 24(2) of the Charter?
3. Was there sufficient evidence to convict Simpson of impaired driving without the breath test results?

The Charter Violation and Systemic Police Problem

Justice Schreck found a clear violation of Simpson's Charter rights. Under R. v. Suberu, the phrase "without delay" in section 10(b) means "immediately" — no exceptions for administrative convenience. Crouse didn't advise Simpson of his right to counsel until 1:21 a.m., a full seven minutes after arrest. When questioned, Crouse admitted he thought the delay "wouldn't determine the outcome of a criminal trial" and that he "had enough time to go ahead and do that."

The judge was particularly troubled by what he described as a systemic problem with Peel Regional Police, citing over 20 recent cases where Peel officers violated the immediacy requirement of section 10(b). This wasn't an isolated mistake — it was part of a pattern of police ignoring well-established Charter duties. The court found this systemic breach serious enough to warrant excluding the breath test evidence, despite society's interest in prosecuting impaired driving cases.

Simpson's breath samples showed readings of 167 and 159 mg of alcohol per 100 ml of blood — well over the legal limit. But because of the Charter breach, this evidence was thrown out, and the "over 80" charge was dismissed.

Key Takeaway

Charter rights aren't suggestions — they're immediate legal requirements that police ignore at their own peril.

Even in routine impaired driving cases, procedural violations can torpedo the prosecution's case. The court will exclude crucial evidence when police systematically ignore Charter requirements, regardless of how guilty the accused might appear.

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R v Sinclair

[2010] 2 SCR 310

R. v. Sinclair

2010 SCC 35, [2010] 2 SCR 310
Supreme Court of Canada — McLachlin C.J. and Charron J. (majority) | October 8, 2010

Background

Trent Sinclair was arrested for second-degree murder in the killing of Gary Grice. After his arrest, he spoke with his lawyer Victor Janicki twice by phone for about three minutes each time. Hours later, RCMP Sergeant Skrine began a five-hour interrogation. During this marathon session, Sinclair repeatedly asked to speak with his lawyer again — at least five times — but was refused. The officer told him he'd already exercised his right to counsel and didn't need another consultation. Eventually, Sinclair confessed to the killing.

Sinclair argued his Charter section 10(b) right to counsel was violated because he should have been allowed additional consultations with his lawyer during the lengthy interrogation. The trial judge disagreed, finding no Charter breach, and admitted the confession. Sinclair was convicted of manslaughter.

Issues

1. Does section 10(b) of the Charter guarantee ongoing access to counsel during police interrogation?
2. When, if ever, must police allow a second consultation with a lawyer?

The Limits of the Right to Counsel

The Supreme Court majority ruled that section 10(b) does not give detainees an unlimited right to call their lawyer whenever they want during questioning. The right to "retain and instruct counsel" is generally satisfied by one proper consultation at the beginning of detention, before interrogation starts.

However, the Court recognized limited exceptions where a second consultation might be required: when there are new procedures (like a lineup), a change in jeopardy (new, more serious charges), or reason to believe the detainee didn't understand their initial legal advice. Simply asking to speak with a lawyer again isn't enough — there must be objectively changed circumstances that make the original advice inadequate.

The Court was particularly concerned about giving detainees a "trump card" to shut down police questioning whenever they felt like talking to their lawyer. Four dissenting justices strongly disagreed, arguing this approach effectively creates a police right to uninterrupted interrogation until confession.

Key Takeaway

Your right to counsel is frontloaded — make that first call count.

If you're arrested, you generally get one meaningful opportunity to speak with a lawyer before questioning begins. Use it wisely, because you likely won't get another chance unless circumstances significantly change. While this case involved criminal charges, the principle applies broadly to Charter rights in detention situations.

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R v Voss

No summary has been written for this decision yet.

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