Law Times

Law Times • sepTember 24, 2018 Page 5 www.lawtimesnews.com Actions of Durham Regional Police under scrutiny Police criticized over detention of drug suspects BY SHANNON KARI For Law Times T he Ontario Court of Ap- peal has rebuked a To- ronto-area police force over its standard prac- tice of detaining drug suspects for several hours before permit- ting them to contact a lawyer. "The Charter-infringing state conduct in this case must be viewed as very serious," wrote Justice David Doherty about the actions of Durham Regional Po- lice in R. v. Rover. "A police practice that rou- tinely holds detained individu- als incommunicado while the police go about obtaining and executing a search warrant must, over time, bring the ad- ministration of justice into dis- repute," stated Doherty in find- ing a serious breach of s. 10(b) Charter rights. The court also quashed Adrian Rover's drug trafficking convictions and or- dered acquittals. Michael Lacy, president of the Criminal Lawyers' Associa- tion, says the decision in Rover is significant because it makes clear that "institutional non- compliance" of Charter rights will not be tolerated by the court. "When the police systemi- cally engage unlawful and un- constitutional practices, are not trained properly or otherwise act on an institutional level without regard to Charter rights, courts must step in to right the consti- tutional wrong. It is the only way you can ensure that rights are re- spected," says Lacy, a partner at Brauti Thorning Zibarras LLP. The decision also sends a broader message to police in Ontario, says Janani Shanmuga- nathan, a defence lawyer at Erin Dann Barrister in Toronto. "It is a signal to police to take a look at routine practices and make sure it is Charter compli- ant," she says. In this case, it is clear that po- lice did not even turn their mind to the Charter, she says. "They were indifferent." The Court of Appeal heard that Durham police do not per- mit drug suspects in custody to contact lawyers until a search warrant has been executed. At trial, police testified that if a sus- pect is permitted to call a lawyer immediately, that may lead to in- formation being passed to a third party who could then "rush" to a residence and destroy evidence. Rover was arrested in April 2013 at about 10:40 p.m. at a con- venience store near a residence in Whitby, Ont., where police were conducting surveillance. A search warrant was obtained and police entered the residence at 3 a.m. It was not until 4:20 a.m. that Rover was permitted to contact a lawyer. Durham police did not interrogate Rover during this time, but he was not informed as to why he was not being permitted to contact a lawyer. The trial judge, Superior Court Justice Robert Charney, said there was a "limit" to how much he was willing to "sec- ond guess" police practices. The judge added that he believed police had legitimate concerns about officer safety and destruc- tion of evidence if the suspect was permitted to call a lawyer without delay. Once the residence was se- cured at 3 a.m., the judge said Rover should have been provid- ed with the opportunity to con- tact a lawyer immediately. That failure was a Charter breach, but he declined to exclude the evi- dence in his s. 24(2) analysis. "The impact on his Charter- protected interests was of mod- erate significance," said Charney. The Court of Appeal con- cluded the delay began when Rover was arrested and not after police secured the residence. "He [Charney] understated its seriousness by failing to con- nect it to a police practice that routinely denied detainees ac- cess to counsel in situations in which the police were intending to apply for search warrants," wrote Doherty, with justices Sar- ah Pepall and Ian Nordheimer concurring. "Constitutional breaches that are the direct result of systemic or institutional police practices must render the police conduct more serious for the purposes of the s. 24(2) analysis. A police practice that is inconsistent with the demands of the Charter produces repeated and ongoing constitutional violations that must, in the long run, negatively impact the due administration of justice," the Court of Appeal stated. "The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of ac- cess to counsel without delay should not be underestimated," Doherty wrote. The ruling is "an affirmation of the importance of the rights enshrined in 10(b) and how seri- ously they should be taken," says James Frost, a Toronto defence lawyer. Kathryn Wells, who repre- sented Rover, recently joined the provincial Crown's office. She was unavailable for com- ment. Frost is her former law partner. "In the past, this right has been glossed over if police did not try to obtain a statement. The argument was: If you don't have a statement, what's the harm?" Frost says. The suggestion that somehow another person will learn about an imminent police search if a suspect is permitted to contact a lawyer without delay is "ludi- crous," says Frost. "This appears to be an ex post facto justification. As de- fence counsel, I can't rely on far-fetched speculation. Neither should police," he says. Shanmuganathan says that trying to justify the routine de- nial of a Charter right because of a concern that counsel might do something unethical is an unfounded swipe at criminal defence lawyers. "There is no evidence to back up this theory," she says. 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Sarah regularly advises clients conducting investigations and conducts investigations as a third party investigator. Untitled-6 1 2018-09-18 2:43 PM Janani Shanmuganathan says a recent Ontario Court of Appeal ruling is 'a signal to police to take a look at routine practices and make sure it is Charter compliant.' LawTimesNews.com Fresh Ontario legal news and analysis available on any device. Get More Online

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