Police must make every effort to give suspected impaired drivers access to legal counsel, a Supreme Court ruling emphasized last week.

In a 5-0 decision, the court ruled an Alberta police officer’s mistakes in a 2008 case were so serious, it threw out the conviction of a man who drove drunk, crashed his truck and seriously injured three of his passengers.

Police must allow a suspect a reasonable opportunity to speak to a lawyer before officers can collect evidence, according to the ruling.

The high court said police did not give the accused the right to speak to counsel either at the scene of the crash, or before he was brought to hospital and had his blood taken.

A blood analysis revealed the driver had a blood-alcohol concentration over the legal limit. He was charged with three counts of impaired driving causing bodily harm and later convicted.

The Alberta Court of Appeal threw out the conviction and the Supreme Court agreed by saying police violated the driver’s Section 10 charter rights, which give him the right “to retain and instruct counsel without delay.”

The Supreme Court ruled that a hospital is not a charter-free zone.

“This is a case not so much about delay in facilitating access (to legal counsel), but about its complete denial,” Justice Rosalie Abella wrote on behalf of the court. “(The driver’s) rights were violated by the failure on the part of the police to take any steps to facilitate (his) requested access to counsel.”

OPP Sgt. Pierre Chamberland said he doesn’t think the decision will change the way provincial police officers arrest a suspected drunk driver. He said providing access to counsel is the norm.

“I have been an officer for over 30 years and this has always been a basic requirement,” he said from OPP Headquarters in Orillia. “A person under arrest for an impaired type of driving offence must always be given an opportunity to speak to counsel prior to the test being administered.

“The right of a person to seek counsel is a basic right under the Canadian Charter of Rights and Freedoms and must be provided without exception. In Ontario, there is a 24/7, 365-days-a-year toll-free number in effect that a person under arrest can call if they do not have a pre-existing lawyer of choice (duty counsel).”

Barrie police Sgt. Glen Furlong said an arrested person’s insistence to secure a particular lawyer can complicate things further.

“Do you want to speak to another lawyer and he says, ‘Nope, that’s my lawyer’. Well, if you’re not willing to speak to someone else, we’re moving forward on this breath test. We have to,” he said. “It’s the understanding of how far you have to go to accommodate the accused in getting that right to getting that phone call.

“The Supreme Court is saying, ‘You’ve got to go pretty far’ or you better be able to explain to us why (there was) a decision to move forward or seize this stuff without him speaking to counsel,” Furlong added.

“It comes down to an officer’s experience and their understanding of the law.”

Mothers Against Drunk Driving (MADD) spokesman Andy Murie said there’s no change in protocol as a result of the ruling.

“I can’t understand why the police did not give the individual in this case the right to legal counsel. It makes no sense,” he said, adding “99.9% of the time, when police are doing an impaired, that process goes through. It was a hospital setting so I don’t know if the (Alberta) officer thought because they were in a hospital that they got a warrant (for a blood sample) and didn’t need to get a right-to-counsel.

“But I think somewhere in this, the police who were in charge of the investigation made an error, the court picked it up. I agree with the Appeal Court and I agree with the Supreme Court. That’s part of our due process here: access to counsel.

“The shame of this is three people got hurt and this guy was over the legal limit and he’s walking away on a technicality.”

Source: Orillia Packet


Last updated on: 2014-07-31 | Link to this post