The Ontario Court of Appeal has rebuked a Toronto-area police force over its standard practice of detaining drug suspects for several hours before permitting them to contact a lawyer.
The Ontario Court of Appeal has rebuked a Toronto-area police force over its standard practice of detaining drug suspects for several hours before permitting 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 Police in R. v. Rover.
“A police practice that routinely holds detained individuals incommunicado while the police go about obtaining and executing a search warrant must, over time, bring the administration of justice into disrepute,” stated Doherty in finding a serious breach of s. 10(b) Charter rights. The court also quashed Adrian Rover’s drug trafficking convictions and ordered acquittals.
Michael Lacy, president of the Criminal Lawyers’ Association, 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 systemically engage unlawful and unconstitutional practices, are not trained properly or otherwise act on an institutional level without regard to Charter rights, courts must step in to right the constitutional wrong. It is the only way you can ensure that rights are respected,” says Lacy, a partner at Brauti Thorning Zibarras LLP.
The decision also sends a broader message to police in Ontario, says Janani Shanmuganathan, 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 compliant,” she says.
In this case, it is clear that police did not even turn their mind to the Charter, she says.
“They were indifferent.”
The Court of Appeal heard that Durham police do not permit drug suspects in custody to contact lawyers until a search warrant has been executed. At trial, police testified that if a suspect is permitted to call a lawyer immediately, that may lead to information 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 convenience 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 “second guess” police practices. The judge added that he believed police had legitimate concerns about officer safety and destruction of evidence if the suspect was permitted to call a lawyer without delay.
Once the residence was secured at 3 a.m., the judge said Rover should have been provided with the opportunity to contact a lawyer immediately. That failure was a Charter breach, but he declined to exclude the evidence in his s. 24(2) analysis.
“The impact on his Charter-protected interests was of moderate significance,” said Charney.
The Court of Appeal concluded the delay began when Rover was arrested and not after police secured the residence.
“He [Charney] understated its seriousness by failing to connect it to a police practice that routinely denied detainees access to counsel in situations in which the police were intending to apply for search warrants,” wrote Doherty, with justices Sarah 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 access 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 seriously they should be taken,” says James Frost, a Toronto defence lawyer.
Kathryn Wells, who represented Rover, recently joined the provincial Crown’s office.
She was unavailable for comment. 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 “ludicrous,” says Frost.
“This appears to be an ex post facto justification. As defence counsel, I can’t rely on far-fetched speculation. Neither should police,” he says.
Shanmuganathan says that trying to justify the routine denial 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.
