Law Times

Law TiMes • March 28, 2011 NEWS Police 'called on the carpet' for misleading accused about wait to speak to counsel Breath evidence tossed BY MICHAEL McKIERNAN Law Times A judge has excluded the results of a 20-year- old man's breath test from evidence after fi nding his Charter rights were breached when police discouraged him from calling duty counsel. Rickford Balgobin's breath test indicated he was driving at almost twice the legal limit for blood alcohol concentra- tion when pulled over in 2008, but Justice Rick Libman of the Ontario Court of Justice found his waiver of the right to coun- sel "was not a valid or informed one" because police had misled him about how long it would take to speak with a lawyer. "Th is conduct of the breath test operator in seeking to dis- suade a young person, who is inexperienced in dealing with the police and has been charged with drinking and driving of- fences, from speaking to a lawyer and obtaining legal advice, must be denounced in the strongest and clearest terms; indiff erence to constitutional standards can- not be tolerated. In this particular case, it results in the administra- tion of justice being brought into disrepute," Libman wrote in his judgment earlier this month. Balgobin's lawyer Richard Posner, managing partner at Lockyer Campbell Posner, says the offi cers involved were rightly "called on the carpet." "Th ere's a reason that you've got the right to counsel, and that right should be given a fairly ro- bust protection," he says. "Th e system has to be fairly fastidious in ensuring access to counsel." According to R. v. Balgobin, an Ontario Provincial Police of- fi cer patrolling Highway 401 in northeast Toronto stopped Balgobin, who had never been arrested before, at 2:40 a.m. Another offi cer, Const. Warner Muller, told the accused he could have languished for up to two hours in a cell while he waited for a call back. In fact, the court LSUC elections to feature first virtual town halls BY OLIVIA D'ORAZIO For Law Times ask questions. Th e meeting has been split into three panels, each expected to run about an hour and a half. Bencher hopeful David McRobert says the idea came up E during lunch with fellow candidate Monica Goyal as they dis- cussed how diffi cult it is to engage the profession in meaning- ful discussions. "We were brainstorming around, wanting to do something, worried that there wouldn't be an opportunity to have a dia- logue," he says. "It's really important to provide an opportunity for lawyers to talk to each other about what's happening in the profession and what we want the benchers to do." Th e fi rst panels will take place on March 29 and 31. Th e panels will give bencher candidates the opportunity to discuss and voice their opinions on a wide range of hot topics, including the role of the Law Society of Upper Canada, work-life balance, LSUC fees, access to justice, and public perception of the profession. Th e third and fi nal panel on April 4 will deal with the future of law and articling, and will be of special interest to law students. Th e discussion will examine issues such as mentoring, the future of articling positions, and fee exemptions for unemployed lawyers. Th e technology making this forum available is quite simple. Th e audience will be able to listen in on the discussion among the participants and moderator and can pose questions to the panel. Essentially, it's a huge conference call through a computer. McRobert hopes the event will become a tradition as a fo- rum for lawyers to have their voices heard and off er suggestions for change to presiding benchers. "I wanted to off er an oppor- tunity to do something diff erent, to get more people involved. I would love for this to be the precedent for us to have discus- sions about the future of the law society." More information on how to access the virtual town halls will be available soon on Law Times' bencher election web site: lawtimesnews.com/2011bencherelection. Th e idea for virtual discussions comes as the Ontario Bar Association gets set to off er similar town hall meetings as well. It doesn't have a fi rm date yet but is planning them for the fi rst week of April. Th e organization is also hosting a series of bencher recep- tions during which OBA members running for bencher will have the opportunity to meet with voters and answer any ques- tions they have. Th e three receptions will take place in Ottawa on March 31; Toronto on April 4; and London, Ont., on April 5. Registration is available at oba.org. Untitled-3 1www.lawtimesnews.com 2/24/11 9:33:21 AM ight bencher candidates are preparing to debate the issues during an upcoming series of virtual town hall meetings. During the meetings, participants can tune in online and heard Legal Aid Ontario had received 998 duty counsel calls that month for drinking and driving off ences, and all but fi ve had received a response within 45 minutes. None of them took longer than an hour. Muller testifi ed he was merely pointing out the delay that could result from exercising his right to counsel as Balgobin was clearly concerned about his release from custody as soon as possible. Con- fronted with the LAO statistics, he said he was aware of a case in which it had taken two hours for a return call. "When asked to describe the circumstances of that case and the name of the individual in- volved, the offi cer testifi ed that he could not remember," said Libman, who also described the offi cer's explanation as "prepos- terous and off ensive." "I fi nd Muller's statements to the defendant, therefore, to be a calculated use of rhetorical exag- geration . . . designed to persuade a youthful, inexperienced, and intimidated defendant that the quickest way out of custody was simply not to take the time to ex- ercise his legal rights." Balgobin spent a total of 40 minutes with Muller. During the fi rst 12 minutes of the interview, Balgobin asked more than 30 questions about his legal rights and whether he could speak to a lawyer. He eventually decided not to, reasoning that he'd be released more quickly in that case. In an affi davit, he said he thought it would be a good idea to get in touch with a lawyer I fi nd that troubling." But OPP spokesman Sgt. Pierre Chamberland says it's un- fair to generalize about police at- titudes based on one case. "We're obliged to respect those constitu- tional rights and obey the law," he says. "Generally speaking, from my own experience, that's what happens." Posner says exclusion of evi- 'The system has to be fairly fastidious in ensuring access to counsel,' says Richard Posner. to fully understand the conse- quences of taking or declining the breath test. "I was scared about being in a police station and the thought that I would have to sit in a jail cell for two hours waiting to speak to a lawyer was not something I could bear," Balgobin wrote. During an interview between his breath tests, which both reg- istered 133 milligrams per 100 millilitres of blood, Balgobin told Muller he had consumed three martinis and two beers over six hours but added that he didn't feel impaired. According to Posner, the case highlights the attitude of many police offi cers about letting detained people know about their right to counsel. "Th ere's a feeling that it's a technicality, something they've got to get done," he says. "And if it can be avoided, so much the better. It's a nuisance for them. dence from breath tests has be- come increasingly rare since the 2009 Supreme Court of Canada decision in R v. Grant. It set a stringent three-part test for the exclusion of evidence as a result of a breach of a right under the Charter of Rights and Freedoms. "It probably happens more than it should, not because of judicial impropriety but because of police disregard for constitu- tional rights," he says. In the Balgobin case, Lib- man concluded the breach was serious enough to outweigh the strength of the evidence against him. "I am of the opinion that the signifi cant impact of the Charter of Rights breach of the right to counsel, and the lack of good faith on the part of the offi cer, weighs most heavily in favour of exclusion of the evi- dence," he wrote. According to Posner, nobody wants to see such evidence ex- cluded because of the public's interest in seeing cases tried on their merits. "Yet the public wants to see that people who are arrested and come into contact with the police are treated in a fair way, and it's not a level play- ing fi eld," he says. PAGE 3

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