Courts have always maintained that police officers have to wait a "reasonable" amount of time for counsel of choice to call back. There is no "magic number" for what a reasonable amount of time is. Similar facts can lead to different results:
Mr. Vernon and the arresting officer arrived at the police station at 7:23 p.m on a long weekend Sunday evening. At 7:30 p.m., the officer called private counsel and left a message on the answering service at his office. A minute later, at 7:31 p.m., the officer called duty counsel and left a message. Duty counsel called back at 7:44 p.m. Mr. Vernon was then advised by the officer that his lawyer had not called back and was offered an opportunity to speak with duty counsel, who was on the phone. He accepted the offer and spoke with duty counsel from 7:45 p.m. to 7:57 p.m. The trial court found a breach and excluded the eventual blood alcohol readings. "The officer failed to properly inform Mr. Vernon that he had a right to wait a reasonable amount of time for his counsel of choice to call before providing the breath sample. He further failed to wait a reasonable amount of time for counsel of choice to call back before contacting duty counsel." The Crown's appeal was dismissed, R. v. Vernon, 2015 ONSC 3943, and leave to appeal that decision has been denied, R. v. Vernon, 2016 ONCA 211
Mr. Wilson and the arresting officer left a message with private counsel just after 4:00 a.m. A message to call back was also left with duty counsel. At about 4:27 a.m. duty counsel returned the call. The officer entered the breath room and told Mr Wilson "obviously [private counsel's] not gonna return the call. Duty counsel has called back. He’s now on the phone. He’s been given your details and he awaits you in the room if you wish to speak to him. You’re being given the opportunity to speak to him." Mr. Wilson said "Sure. Why not?" and the officer said "Okay. Come out sir." The trial court did not find a breach and the eventual breath results were admitted. R. v. Wilson, 2016 ONCJ 25