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Page 6 March 23, 2015 • Law Times www.lawtimesnews.com COMMENT Let suspects dial a lawyer hen it comes to the right to counsel, is it enough for police to ask detainees if they know of a lawyer they'd like to contact and then dial the number for them? That was one of the issues in R. v. Glenfield, a case dealing with, among other charges, alleged impaired driving caus- ing death against Jeremy Glenfield in relation to a 2011 accident in Wellesley, Ont., a town near Waterloo. In a March 12 ruling on an application by Glenfield, Superior Court Justice Peter Hambly con- sidered defence counsel Paul Burstein's argument that the Waterloo Regional Police Service had violated the procedure mandated by the Supreme Court of Canada by not allowing Glenfield to actually dial calls to counsel on the night they arrested him. The issue is an important one for Burstein. At the Criminal Law- yers' Association conference in the fall, Burstein criticized the police practice in Ontario of asking suspects if they know of any lawyers they'd like to consult and how to spell their name and then dialling the number for them in order to dispatch the call through to a phone in an enclosed room. If they can't come up with someone to call, they get the "consolation prize" of speaking to duty counsel, Burstein told the conference. "They're never given an actual phone," he noted. It's a valid criticism. Certainly, it seems reasonable to suggest that providing truly meaningful access to counsel of choice would in- volve giving some sort of directory to look up a lawyer as well as a phone to make a call. In Glenfield's case, he wanted to call his moth- er to see if she could contact a lawyer to advise him before police proceeded with a breath test at the station. Police initially said no as the officer suggested it was against their policy to contact a third party for the purpose of retaining a lawyer. The officer later relented, but in the meantime police had Glenfield speak with duty counsel and proceeded with the breath test before Lawyers not to blame for auto insurance costs t is not enough that the Insurance Bureau of Canada and its insurance clients have control of every aspect of the lives of innocent acci- dent victims, but they now want to monitor how personal injury lawyers structure their fees. Barbara Taylor, director of policy at the insurance bureau, suggests that the tracking of lawyer fees will protect consumers while allowing the government to note the impact of lawyer fees on the auto insurance system (see "IBC wants regulation for personal in- jury lawyers," Feb. 23). If the insurance industry really wants to control costs, I suggest that they take a hard look at what is expected of accident victims when they announce their intention to advance a claim. Imme- diately, there is a list of dozens of demands including an employment file, income tax returns, clinical notes and records of doctors, hospital records, drug store re- cords, Facebook records, information on previous ac- cidents, names and addresses of witnesses, identity of insurer, a statutory declaration as to how the accident occurred, and on and on. This is even before there is a determination on whether the case will cross the verbal threshold. While the insurer gratuitously offers to pay reasonable costs, that does not include the time of the lawyer to pursue the various requested items. Has the insurance bureau ever costed the expense to the insurance company and therefore the system of reviewing the various produc- tions when perhaps no claim has ever been advanced? If litigation is instituted and the matter proceeds to examinations for discovery, again under direction from the insurance company, the defence lawyer will demand further productions and often these items generate some 30 or 40 letters that have to be prepared by the plaintiff 's lawyer. Assuming all these items are produced, has the insurance bureau computed the costs of first the defence lawyer collecting these items and the adjuster reviewing the same? By this time, the plaintiff 's lawyer will have incurred the cost of medi- cal reports and the defence lawyer will make it clear that while they have to be produced, the insurer will not pay for them. Again, the plaintiff 's lawyer has to lay out that money and, of course, spend the time writing for and receiving medical reports. If the lawyer for the defence wants a medical re- port, he will usually choose someone who is totally sympathetic to the defence position and, of course, that is an expense to the insurance com- pany that often runs into the thousands of dol- lars. Then, based on that report, there is a denial arguing that the case does not meet either the threshold or the $30,000 deductible. At this point, having invested time and money, a plaintiff 's lawyer must decide wheth- er to proceed to trial or throw in the towel. In reality, if a settlement is achieved, it is usu- ally based on analysis of two or three medical reports amounting to a compromise between the plaintiff 's medical information and the defence doctor's report. In the end, the piles of paper generated by productions throughout the course of the claim are redundant; however, they have justified the salary of adjusters and defence lawyers, all of which costs the system and af- fects increases to automobile insurance premiums. My point is that even if this paper chase is elimi- nated, the insurance bureau and insurance carriers will still find another way to shortchange proper compen- sation for innocent accident victims. Bert Raphael, Raphael Barristers, Thornhill, Ont. ©2015 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, com- pleteness or currency of the contents of this pub- lication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. 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It's also important to note that there were several factors working against Glenfield. As Hambly pointed out, while police have their obligations when it comes to the right to counsel, suspects must also exhibit reasonable diligence in exercising it. In Glenfield's case, he was belligerent with police and, when they handed him a directory to search for a lawyer he named, Andrew Spire, he looked in the M section of the book. He later told them Spire was in fact a paralegal. And as Hambly noted, time was of the essence in such a serious impaired driving matter. "Glenfield was obstructing the police and delaying throughout his interaction with the po- lice from the moment that he failed the roadside breath test," he wrote. Nevertheless, while this clearly isn't the best case for Burstein's general proposition, it's clear police should go further in accommodating the right to counsel of choice. People should be able to call someone else to help with finding a lawyer and they should get a phone and a directory to use. It's time to update police practices on this issue. — Glenn Kauth I u Letter to the editor W

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