Law Times

PAGE 10 FOCUS JUNE 2, 2008 / LAW TIMES quittal on a drunk driving charge. The reason: The court agreed Trend risks 'obliterating' right to counsel of choice T BY GRETCHEN DRUMMIE Law Times he Ontario Court of Ap- peal last month restored Margaret Trudeau's ac- with the original judge that Trudeau's Charter rights to choose her lawyer were violated by police, and thus the breatha- lyzer evidence collected was ruled inadmissible. Trudeau was facing a new trial after the lower court's acquittal was overruled by a Superior Court judge. The story would hardly be news but for the fact that she's the ex-wife of former prime minister Pierre Trudeau. But, it is news that what happened to her is ap- parently not unique; she's just the public face of a "dangerous" trend Lawyers' Professional Indemnity Company LAWPRO is pleased to announce that Raymond G. Leclair will join LAWPRO as Vice President, TitlePLUS eff ective June 2, 2008. Formerly General Counsel for the Kanata Research Park Corporation in Ottawa, Ray brings with him a wealth of legal real estate experi- ence including nearly 15 years as the Ottawa senior instructor for the French and English Real Estate Sections of the Bar Admission Course. He has practised in both major national law fi rms and as a sole practitioner, and was a part-time professor at the University of Ottawa Law School and Cité Collégiale instructing the French lan- guage portion of the real estate law course. Called to the bar in 1984, Ray is Past-Chair of the Real Estate Section of the Ontario Bar Association and is currently Vice-Chair of the National Real Property Section of the Canadian Bar Association. He is Co-Chair of the Working Group on Lawyers & Real Estate and is President of both the Ontario Real Estate Lawyers Association ("ORELA") and the Advisory Committee for the Cité Collégiale Legal Assistants Program. Ray's history with the TitlePLUS program goes back to 1997, where - as a beta tester - he contributed to the program's technical development and has continued since then to be a strong supporter of the program. TitlePLUS title insurance was developed by Lawyers' Professional Indemnity Company (LAWPRO® ), a wholly Canadian-owned insurance company providing title insurance and professional liability insurance in the Canadian marketplace. TitlePLUS insurance is the only all-Canadian and the only Bar-related® title insurance product available in Canada today. It is being used by more than 4,000 lawyers across Canada to better protect their home buyer/owner clients. In 2007, the TitlePLUS program celebrated its 10th anniversary. that is quietly emerging in this province — the possible evapo- ration of the right to counsel of choice in so-called over 80 cases, says Joseph Neuberger. "The trend has been with some of these cases of an almost water- ing down, an obliteration of the right to counsel of choice argu- ment," says Neuberger. The Toronto lawyer says that in the past five years there has been a gradual movement, in the face of violations of the Charter — search and seizure, arbitrary detention, right to counsel — that the evi- dence obtained is more likely ad- mitted than excluded. It's most notable in the gun cases, partly due to public sentiment, where viola- tions evidence is being included at trial, he says. But, it's spilling over into the impaired driving cases. And it's morphing into something more . . . "This is a case where you're stopped by a police officer at 11 p.m. and you say, 'I'd like to speak to Joseph Neuberger, or Alan Gold, or Stephen Price,' and they say, 'OK,' and they get the phone num- ber, and they make a phone call, and they leave a message. Twenty- three minutes later they have you giving a sample to the breath tech, and you are not given any other opportunity to speak with private counsel, you're just put on the phone with duty counsel, and then it carries through," says the veteran defence lawyer, partner in the firm Neuberger Rose LLP. What's been happening in such instances, he says, is that more times than not, the evidence is ad- mitted because the breach is tech- nical. It happened, for example, in the recent appeal court decision in R. v. Wilder — even though there was a breach of the s. 10(b) right. Neuberger says he's had simi- lar cases, and finds "it's going to the extreme." In fact, he says he had a re- June Specials The Criminal Lawyers' Guide to Appellate Court Practice Gil D. McKinnon, Q.C. The Guide to Investigations and Prosecutions André Marin cent matter in which the trial judge found there was a breach of s.10(b), yet the evidence was not excluded. The accused was stopped late at night, arrested on an over 80, taken to the station, and he said he'd like to speak to a specific lawyer (Neuberger). He gave the officer the name and phone number, he was placed in the cells, an officer made the call, but there was no callback by a certain point in time. So, they took him out of the cell, put him on the phone with duty counsel, took him into the breath room, he blew over, and "started to melt down, saying, 'I have no rights, I have no rights,' and was very emotional such that he had to be transported to hospital." Neuberger is appealing the case to the Superior Court. He ar- gues that "when you have an indi- vidual saying, 'I'd like to speak to a lawyer,' and he's given no other options, no information as to what happened with that phone call, then really, what you're get- ting down to is so long as they speak to duty counsel, then they've got their rights to counsel, just let him blow, and there's no violation of 10(b)." But the effect on the accused is "completely psychological. He doesn't know what efforts were made, so he may feel like he has no right to speak to his own law- yer." In fact, some people think their lawyer turned them down in the absence of any informa- tion, a devastating jolt especially for those with no prior contact with police, he notes. And, Neuberger says, while he's not at all suggesting duty counsel can't do the job, "there's a benefit to speaking to counsel of choice. There's a degree of trust and I guess, legitimacy to advice that you receive from someone you are familiar with, or somebody you choose, as opposed to somebody you are just put on the phone with. The facts of my particular case were that the individual didn't even know that police were phon- ing duty counsel; there was just no information. [It was] 'Here, speak with duty counsel,' and they were on the phone for three minutes." He says if there is a chance to speak to private counsel, "there may be all sorts of other discus- sions that you're having with your own lawyer that are relevant." Neuberger says there's "no rush, so long as it's done in a timely fash- ion. There are at least two hours for that presumption to apply, and in many of these cases the breach is coming in an hour before the time is up in order to get the read- ings in . . . There's plenty of time to take the readings and still have the presumption applied. What's the rush?" Neuberger hasn't missed the irony that this is happening dur- ing a period when lawyers should be easier to track down than ever before, due to technology. "In some cases I've found that police offices have been more adept at facilitating the opportunity to speak with counsel, and they have been going on the internet and get- ting alternative phone numbers." See Evidence, page 13 Witness Preparation Manual, Second Edition Bryan Finlay, Q.C., and The Honourable Mr. Justice Thomas A. Cromwell Crimes Against Children: Prosecution and Defence Anna Maleszyk Contributors: Colleen Hepburn, Dr. Marcellina Mian and Louise Dezwirek Sas REPRINTS Been in Law Times? Want a record of it? Promote your law fi rm by ordering reprints of articles from the voice of the profession — Law Times! Reprints are great for: • Firm promotional material • Use on your web site • Training and education • • Suitable for framing • $175 - $225/reprint We provide a color PDF and unlimited reproduction rights. For more information or to order reprints, please e-mail Gail Cohen at: gcohen@clbmedia.ca LAW TIMES www.lawtimesnews.com LT 1-4x3•Web Discount.indd 1 5/28/08 9:04:26 AM

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