Law Times

Law TiMes • March 31, 2014 Page 3 www.lawtimesnews.com efence counsel should be careful about when they advise people to call them aer an arrest as a recent case shows they'll oen get just one call, a Toronto criminal lawyer says. Aer the Supreme Court provided guidance on when de- tained individuals can speak to counsel for the second time in R. v. Sinclair, lawyer Craig Penney says he tells his clients to call him only aer the pressure mounts at the police station and they have many questions. When given their rights to counsel, he says he trains his cli- ents to respond, "'Not right now, but I will let you know if I need to call Mr. Penney.' at invokes the police duty to hold off and empowers the client to call me when needed." In a recent Ontario Court of Justice decision in R. v. Ganga, the court said a Greater Toronto Area woman wasn't entitled to a second call to duty counsel aer her arrest for impaired driving. Christina Ganga sought to exclude evidence from police on the basis that they had breached her right to counsel and that Const. Ian Kosher had acted in an antagonistic manner to- wards her aer her arrest in December 2012. But the court found Ganga didn't have a sufficient reason to speak to duty counsel for the second time and that if she did, she waived her right when she agreed to give a second breath sample before the lawyer had a chance to call back. "At no time did she ever claim she was at all dissatisfied with the advice she received. On the video/DVD, she said nothing about being confused as to what her continued legal obligation was to provide a second breath sample. She was only concerned about getting her car and property back that same evening and not having her parents find out about her circumstances of having been arrested and charged," wrote Justice Steven Clark. "Any confusion about the legal advice she had already re- ceived and the officer candidly telling her she wasn't going to get her car back based on the results of the first breath reading, was of no moment. Neither was her unreasonable demand that a female officer be present." Penney says the facts of this specific case weren't favour- able to the defence. Clark noted that aer her arrest, Ganga behaved in a manner that "would have tested the patience of even Mother Teresa." She told the officer it was "none of his business" as to why she wanted to speak to counsel. e court found she should have told him why she wanted to speak to a lawyer again. But according to defence counsel Nathan Gorham, there's nothing in the Supreme Court's decision in Sinclair that sug- gests people must say why they want to speak to a lawyer again. "On my reading of Sinclair, I don't think a person is obligat- ed to get into why they're confused," he says. "ere's a good reason why they shouldn't have to because in order to explain why they're confused, they're going to have to indicate potentially what the lawyer said to them and poten- tially end up giving up private information or private evidence that they have," he adds. "So in order to explain why they need the advice of a lawyer, they may be defeating the reason why they need a lawyer." Following her arrest that December night, Ganga spoke to duty counsel aer police took her to the station. Before provid- ing her second breath sample, she asked to speak to duty coun- sel again. An officer made the second call for her but proceeded to take the second breath sample without waiting for a call back from duty counsel aer Ganga agreed to go ahead, according to Clark's ruling. According to the Supreme Court of Canada's ruling in Sin- clair, detainees can speak to a lawyer more than once if there's a change in their legal jeopardy or they misunderstood their rights. But other unique circumstances could also warrant a second call, the top court said. Penney says there's an argument Ganga's jeopardy had changed once she had flunked the first breath test, a fact that could have allowed her to make the second call to counsel as per Sinclair. "Ganga challenges defence counsel to rethink how and when we advise clients just arrested. Prior to Sinclair, we could safely offer advice and urge our client to insist on calling again if the need arose," he says. LT Quebec judges' names rumoured as PM searches for new SCC nominee rime Minister Ste- phen Harper will have to fish out his old list of Supreme Court candidates from his wastebasket and choose an- other nominee to fill the empty seat le by the retire- ment of justice Morris Fish. Meanwhile, the Supreme Court of Canada will con- tinue to chug along one judge short and with only two from Quebec aer it blocked Harper's first choice, Federal Court of Appeal Jus- tice Marc Nadon, from join- ing the bench in its ruling on a legal challenge by Toronto lawyer Rocco Galati. e top court decided he wasn't legally qualified for the post since he wasn't a member of the Quebec bar nor was he a Quebec judge. is requirement, according to the Supreme Court, "is to ensure not only civil law training and experience on the court, but also to ensure that Quebec's distinct legal traditions and social values are represented on the court, thereby enhancing the confidence of the people of Quebec in the Supreme Court as the final arbi- ter of their rights." Following the ruling, there were suggestions the prime minister would try to ram through his nominee by doing indirectly what he couldn't do directly either by a swi appointment to the Su- perior Court of Quebec or through an applica- tion for a Barreau du Québec membership. Such a move would have created a political firestorm and possibly a legal one as well. During a debate in Parliament last week, Liberal MP Stéphane Dion asked: "Will the prime minister promise not to reappoint Justice Nadon, and will he tell us how much longer Quebec will be underrepresented on the Supreme Court?" By Tuesday during a visit to e Hague, Harp- er told reporters he wouldn't try to get around the Supreme Court decision. He vowed to respect it entirely, "not just the letter of the decision but the spirit of the decision as well." Many people in the legal and political com- munities are worried about the lingering vacancy while big issues, such as the Senate reform, are looming. e list of Quebec candidates most oen men- tioned includes justices Marie-France Bich and Nicholas Kasirer of the Quebec Court of Appeal. e Globe and Mail described them as "former aca- demics [favouring a] cerebral and sometimes in- novative approach" with Bich touted as "one of the best Court of Appeal jurists" by La Presse. Other Court of Appeal names circulating include justices Pierre Dalphond, the most experienced candidate and a highly respected mem- ber of the legal community, says La Presse; Clément Gas- con, noted as a commercial law expert who garnered fa- vourable attention during his tenure on the Superior Court bench; and Marie St-Pierre, who has a reputation for being studious and hardworking and adjudicated the famous Castor Holdings Ltd. case, a 15-year long securities dispute. Also from the Court of Appeal, newly appointed Justice Manon Savard's name has been circulating in the le- gal community. From private practice, Guy Pratte of Borden Ladner Gervais LLP, a commercial, administrative, and constitutional law expert who's a member of both the Quebec and Ontario bars, is another ru- moured candidate. His name arose in 2011 in the wake of the vacancies le by the retirement of jus- tices Louise Charron and Ian Binnie. Two other judges had been gathering some support before Nadon's nomination became pub- lic: justices Johanne Trudel and Robert Mainville. But as judges of the Federal Court of Appeal, there's an obvious issue with nominating them. e Nadon saga, meanwhile, has made one thing clear: Whatever the buzz is in the legal com- munity as to who's on the list of candidates and who would be the best judge, Harper has a pen- chant for making unexpected nominations. In the March 24th parliamentary debate, Françoise Boivin, the NDP MP for Gatineau, Que., noted that "hearing what people recommend is one thing; listening is another. Did the government listen and really take their recommendations into account? I would remind members that the Que- bec justice minister clearly said that Justice Na- don was not one of the justices he recommended." Justice Minister Peter MacKay replied that "as [Boivin] knows, there is a judicial advisory committee that provides the names. . . . As a member of the committee that vetted the names that came from Quebec, she would know that. She was a member of that committee and, in fact, I appreciated her participation. Speaking of Mr. Nadon, someone said, 'He's a great judge. He's a brilliant legal mind.' Who said that? e member for Gatineau." He added: "We intend to proceed with the appointment of a new member of the Supreme Court. ere are many qualified candidates." LT NEWS DRAWING THE LINE: Using the Surveyor as Expert Witness The half-day workshop to be held Friday, April 25, 2014 at the Delta Guelph Hotel & Conference Centre will build on the e-learning course material with mock hearings, practical demonstrations and discussions addressing: x the qualification of an expert; x the cross-examination of an expert for impartiality; x the specific skill sets held by surveyors; and x ethical obligations. The fee for 3 months of online access to material and the recording is $475 plus HST. Register at 4pointlearning.ca. The workshop has been accredited by for 0.75 Professionalism hour and 3.25 Substantive hours. 4Point_LT_Mar10_14.indd 1 14-03-04 6:15 PM New case sheds light on detainees' right to call counsel again BY PASCAL ELIE For Law Times The government made it clear last week it wouldn't try to reappoint Justice Marc Nadon to the Supreme Court. P BY YAMRI TADDESE Law Times D

• Cover