A ruling from an Ontario Court of Appeal judge criticizes the Durham Regional Police Service for what he calls a ‘standard’ practice of delaying suspects rights to speak with their lawyer.
The ruling, handed down in June, overturned the conviction of Adrian Rover, who was arrested on drug charges in 2013 and convicted on July 25, 2016, by Justice Robert Charney of the Superior Court of Canada.
Rover was arrested after DRPS received tips that he was selling drugs out of his home.
He was detained at 10:41 p.m. shortly after leaving his residence.
The court’s ruling notes that Rover immediately exercised his right to counsel and indicated he wished to speak to his lawyer.
However, police were waiting on a search warrant, and the arresting officer was told by one of the investigators that Rover should not be allowed to speak to his lawyer until the search warrant was executed.
This practice was later referred to by several DRPS officers as “standard” or “customary.”
The following is an excerpt of the testimony from an officer involved in the investigation.
Q. Now, you testified that you had nothing to do with telling anyone to prevent those two girls from speaking to counsel.
Q. You had no knowledge of that?
A. Not that I recall, no. It’s – it’s a standard practice that people’s – that rights get withheld for certain reasons.
Q.And where do you learn that?
A. I learn it from members of the drug unit.
Q. Umm, okay.
A. That’s where you seek advice from – from the drug unit. I think they discuss it on – when you do like, plain-clothes course. It’s – it’s kind of a general – a general practice.
Q.So are you taught that if you’re even gonna’ consider writing a warrant nobody gets to speak to a lawyer ‘til that’s done, it’s submitted, it’s signed back as approved and then executed. Is that how it works?
A. That’s my understanding of how it works. Yes. [Emphasis added.]
The Canadian Charter of Rights and Freedoms guarantees the right “to retain and instruct counsel without delay and to be informed of that right.”
This right can be delayed in cases where there is a significant or immediate danger to police or public safety, or if police have ‘specific knowledge’ that evidence may be destroyed.
The Court of Appeal judge David H. Doherty cited the Ontario Superior Court of Justice case of R. vs Wu (2017) as jurisprudence.
The ruling is that case states, “officers considering whether circumstances justify suspending the right to counsel must conduct a case-by-case assessment aided by their training and experience.”
Doherty ruled that the practice described by Durham officers fails to meet this expectation.
“A policy or practice routinely or categorically permitting the suspension of the right to counsel in certain types of investigations is inappropriate,” it also reads.
DRPS received the search warrant at 12:55 a.m. and began the search at 3:01 a.m.
At 4:20 a.m., the morning after Rover’s arrest, investigators informed the arresting officer that the accused could speak to his lawyer.
For various reasons, Rover did not speak to his lawyer until 5:45 a.m.
During his trial, Rover’s lawyer had moved to have evidence gained through the search warrant excluded because of the delay in allowing Rover to speak to his lawyer.
While the trial judge agreed the time between the execution of the search warrant and telling Rover he could contact counsel was a serious breach “reflecting the police’s disinterest in [the appellant’s] rights,” he also noted the evidence in question was “real, reliable and crucial to the Crown’s case.”
Therefore, he dismissed the motion to exclude the evidence.
Doherty observed while the trial judge had acknowledged the DRPS officers conduct as a “serious breach,” he had also believed the breach was “understated” 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.”
Ultimately, he also questioned why DRPS did not attempt to obtain a search warrant before arresting Rover.
“I see nothing in the circumstances that would have prevented the police from obtaining the warrant first,” he says. “This would have avoided, or at least substantially minimized, any delay in affording the appellant his constitutional right to speak with counsel.”
In overturning Rover’s convictions, Doherty stated a common practice of delaying a suspect’s right to speak to a lawyer in order to obtain a search warrant, “must, over time, bring the administration of justice into disrepute.”
The Oshawa Express reached out to the DRPS, however, spokesperson Dave Selby said the organization does not comment on criminal court rulings.