Sep 26, 2018

A Case for the Defence: Police Policy Leads to Breach of Right to Counsel

R. v. Rover, 2018 ONCA 745 (CanLII)

The Facts

The police received an anonymous tip that an unknown black male was drug trafficking from a residence in Whitby. The tipster also reported seeing vehicles arriving at the residence, staying for a few minutes and then leaving.

The police set up surveillance at the residence. They observed a pattern of traffic coming and going at the residence, which they believed confirmed the anonymous tip. The police also arrested two women shortly after they drove away from the residence. One of the women admitted to the police that she had purchased cocaine from the occupant of the residence.

Based on the tip, their observation of the traffic at the residence, and the woman’s admission, the police decided they had reasonable and probable grounds to arrest the occupant and obtain a warrant to search the residence.

The occupant, who matched the general description given by the tipster, turned out to be the appellant. The police arrested him at 10:41 that evening. Early the next morning, they obtained and executed a search warrant at the residence. They found the drugs. It wasn’t until after completing the search at 5:45 a.m. that police gave the appellant his right to counsel.

The Issue

Did the police breach the appellant’s Section 10(b) Charter right to upon arrest consult with counsel without delay?

The Decision

The factual inquiry of the court’s analysis turned on the testimony of the police officers. The officer who testified during the appellant’s trial all claimed that the reason the appellant wasn’t allowed to speak to counsel until after the warrant had been executed was policy. Various officers referred to this as the “customary” or “standard” practice. No formal written policy to that effect was produced during trial.

When the appellant had be taken into custody, he wasn’t told why he was not being allowed to speak to counsel or when he would be allowed to speak to counsel. Even after the search had began at 3:01 a.m. the appellant didn’t get to speak to counsel until 5:45 a.m.

The Court agree with Crown counsel, in s far that specific circumstances may justify some delay in providing a detainee access to counsel. Those circumstances often relating to police safety, public safety, or the preservation of evidence. However, the Court found in this case the officer never turned their mind to any specific concern. The officer conduct was a product of a general or non-specific nature applicable to virtually any search. The Court found this policy eroded Section 10(b) and could not justify delaying access to counsel. This board discretion clearly fell outside of the narrow circumstances previous set out by Canadian courts.

The Court ruled that the violation of the appellant’s Charter rights was serious, excluded the evidence and entered acquittals.

Closing Remarks

The actions the police took in detaining the appellant and searching his residence before affording him an opportunity to speak to counsel is not unusual. It deserves a greater attention from those who practice criminal defence. From a broad perspective, his case highlights the danger of the state in employing broad policy with indifference to how it affects individual Charter rights.

There are many cases that touch on the danger of policy based decision making in the context of criminal law.

For example, in Ward v British Columbia, the Supreme Court of Canada ruled a British Colombia's prison policy of strip searching all prisoners violate the Charter. In that case, the policy was that all new prisoners were to be strip searched, without taking into consideration any factors to decide whether the strip search of a new prisoner was justified.

In R v Rashid, an officer from Durham Regional Police Services had detained an accused after he was brought up on a domestic violence charge. The officer testified that although there was no written or formal policy, there was an informal understanding throughout the Durham Regional Police Services that in any case of domestic violence, the accused should be held for a bail hearing. This informal policy was shared among officers and in her terminology, “was done from high up.” The Court ruled that the accused rights had been breached and strongly urged that the policy of routine detention of those charged with domestic violence be immediately terminated.

In R v Flintoff, Durham Regional Police Service found themselves in trouble for another on of their policies. This policy, like in Ward, was to strip searches of all persons who are detained, along with requiring them to provide a breath sample (with no legal grounds to make a breath demand).