R v Charitar

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.