No interpreter provided? No case

Judge throws out impaired driving charge because man wasn’t given access to someone who could speak Punjabi

A Brampton judge has dismissed an impaired driving charge against a man who was not given access to a Punjabi interpreter when he spoke with a lawyer following his arrest, which violated his right to counsel.

While police did initially try to accommodate the man’s language needs, their conduct “fell below the standard of care reasonably expected of them in the circumstances,” Ontario Court Justice Paul Monahan wrote in a decision released last week.

Bikkar Khandal was arrested in October 2015 at a RIDE spot-check in Mississauga. Once Khandal had been brought to the police division, the arresting officer called duty counsel — who provides free legal advice over the phone to individuals under arrest — and also requested a Punjabi interpreter, according to Monahan’s ruling.

But the lawyer on the phone said some- thing along the lines of “I speak English, he speaks English, we will do this in English,” and did not arrange for an interpreter, Monahan wrote. The judge found that the lawyer’s conduct was “inappropriate and wrong.”

He also noted that after speaking with duty counsel, Khandal told the officers “but he’s in English, right? I’m not much English.”

Monahan said that should have caused the police to call back duty counsel, and again request an interpreter.

The judge said this was necessary as he considered Khandal’s ability to speak English to be limited.

“It is also my view that both Constable (Michael) Lupson and Constable (Eric) Passmore ought to have known early on during the breath room attendance, when Mr. Khandal expressed concerns about the fact that duty counsel spoke English and he (Mr. Khandal) spoke little English, that Mr. Khandal could not have had a proper consultation with counsel,” Monahan wrote.

“They should have arranged a further consultation with duty counsel and a Punjabi language interpreter at that time.”

Lupson was the arresting officer, while Passmore was the breath technician at the police division.

Khandal’s trial lawyer did not return a request for comment. A spokesman for Legal Aid Ontario, which maintains the duty counsel hotline, said the government agency is investigating and declined to comment further.

A Peel police spokesman said the force is reviewing Monahan’s decision.

The judge concluded that the breach of Khandal’s rights was serious and he excluded the breath sam- ple evidence, calling the decision “a relatively easy one” given the circumstances.

This resulted in the charge being dismissed.

Khandal first blew140 mg of alcohol in100 mL of blood — nearly twice the legal limit — and a half-hour later blew 130 mg of alcohol in 100 mL of blood, according to the ruling.

“In my view, notwithstanding that Constable Lupson and Constable Passmore were attempting to act in good faith and notwithstanding that I consider them to be honest witnesses and officers, in my view they fell below the standard of care reasonably expected of them in the cir-

“When someone is in custody, they’re at the mercy of the police and it means police have to do their jobs properly, including making reasonable efforts to facilitate access to counsel.” DANIEL BROWN, CRIMINAL DEFENCE LAWYER

cumstances,” Monahan wrote.

He concluded that admitting the breath samples would bring the administration of justice into disrepute.

“It would give the court’s stamp of approval to a failure to respect the obvious and important language needs and rights to counsel of a detained person and it would be disrespectful to the diverse community in which this court operates,” Monahan wrote.

“The reality is that when someone is in custody, they’re at the mercy of the police and it means police have to do their jobs properly, including making reasonable efforts to facilitate access to counsel,” said criminal defence lawyer Daniel Brown, who was not involved in the Khandal case.

“Putting somebody with limited English in touch with an Englishspeaking duty counsel is failing in that regard.”

The Khandal matter is at least the second case in a little over a year in which Legal Aid Ontario’s duty counsel hotline has come under judicial scrutiny and led to a charge being dismissed.

Toronto judge Leslie Pringle acquitted a woman of impaired driving charges in May 2015 after Pringle found the duty counsel who spoke to the woman over the phone was “yelling, rude and angry with her,” and that police should have thought of alternatives when it was clear she was having difficulty with the lawyer.