Lawyers say defence counsel and their clients must always be aware of those watching and listening following the acquittal of a driver who had his failed roadside breath test and legal consultation recorded by a TV news station.
It was on Aug. 24 that Justice David Rose, in R. v. Gautam 2017 ONCJ 577, acquitted Kunal Gautam of driving over the legal limit after he found that his constitutional rights were violated at a York Regional Police spot check after Global News recorded his breath test and on-site phone call with a lawyer.
“That right to counsel, of all the Charter rights, it is one of the most sanctified rights in the Constitution because of solicitor-client privilege and your right to get legal advice … when you are under arrest or [under] detention,” said lawyer Calvin Barry, of Calvin Barry Professional Corporation. “The other [Charter breach] was unreasonable search and seizure [in that] he had a reasonable expectation of privacy and not have somebody have a camera in his face and be recording when he’s trying to get some legal advice and providing the samples.”
In the end, it remained a mystery as to who at York Regional Police ultimately gave Global the green light to film all aspects of that night’s RIDE operation. “No police witnesses could answer that question, but their conjecture that it was someone well above the rank of police constable is entirely reasonable,” stated Justice Rose. Lawyers say defence counsel and their clients must always be aware of those watching and listening following the acquittal of a driver who had his failed roadside breath test and legal consultation recorded by a TV news station.
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