Protecting your legal rights is a responsibility I take seriously. My firm has always fought tenaciously to ensure those rights are respected and upheld with every step you take on your path to justice. It begins with our first conversation and only ends when your case is resolved.
As proof, we need look no further than an impaired driving case that ended favourable for our client with the charges being stayed at the request of the Crown thanks to the diligent work of lawyer Rupinjit Singh Bal and the team at the Calvin Barry Professional Corporation.
The case turned on our client’s right to have a conversation in private with his lawyer on the night he was arrested. That didn’t happen. And while what was overheard that night may not have had a direct impact on his case, it did prejudice his right to a fair trial. Before I go into the specifics, some background on your rights as an accused is required.
You have no doubt seen someone being arrested in a movie or television show and heard police warn, “Anything you say can be used against you in a court of law.” This is a warning you should heed if you are facing arrest.
The right to remain silent
Under Section 7 of the Canadian Charter of Rights and Freedoms, you have the right to remain silent. Refusing to answer questions if you are a suspect in a police investigation is not a sign of guilt. In fact, it is in your best interests. Police have a duty to make an arrest when a crime has been committed. If they believe you are a suspect, the chances of you convincing them otherwise are extremely slim. No matter how persuasive you may believe you are, you will not be able to talk your way out of being charged. In fact, you could incriminate yourself without realizing it.
Along with your right to remain silent, you have a right to legal counsel if you have been detained by police. Under Section 10 of the Charter, you have the right:
- to be informed promptly of the reasons for you arrest;
- to retain and instruct counsel without delay and to be informed of that right; and
- to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
According to the Department of Justice, Section 10 “ensures that people have a chance to challenge the lawfulness of an arrest or detention” by requiring that they are promptly informed of the reasons and have a “meaningful opportunity to retain and instruct counsel without delay.”
This brings us to our case that went to trial this week. Our client was arrested in Brampton in February 2021 and taken to Peel Regional Police’s Division 12 so qualified technician could perform a breathalyzer test. The accused was informed of his right to counsel and while he waited to speak to a lawyer, police took him to the breathalyzer room, which is equipped with audio and video recording devices. These devices were running when I called our client.
Absolute privacy is expected
On these initial conversations at a police station, an accused is taken to a counsel room so they can speak in private. These rooms are equipped with a telephone and should be soundproof. Coincidently, the counsel room at 12 Division is also beside the breathalyzer room, which is equipped with audio and video recorders that were still running when our client was taken to the counsel room.
Counsel calls are supposed to be held in absolute privacy. It does not matter if what is overheard during these conversations is inconsequential. Nor does it matter if a police officer standing outside the door had the intent to eavesdrop or collect further evidence. This was a systematic issue that threatens to put the administration of justice into disrupt.
While reviewing the breathalyzer video of lawyer Rupinjit Singh Bal heard our client speaking in the next room. His voice soon became muffled so it is assumed that the door to the telephone room was closed. Still, if a muffled conversation can be picked up on a tape recording a room away, the presumption is that anyone standing nearby would be able to hear more clearly. And this is an important consideration, since we also learned the arresting officer was standing less than two feet from the door to room and certainly within earshot.
Evidence can be excluded
When the case came to trial, the officer was asked if the door to the telephone room was closed. He revealed that it was not a matter of an open door – the room was not soundproof.
What happened at 12 Division that night was a clear Section 10(b) breach. Such breaches are serious enough that significant amounts of evidence can be excluded. In our client’s case, the judge found it necessary to suggest that the Crown stay the charges. The judge also advised that breathalyzer technician to discuss lack of a soundproof telephone room with his superiors.
The right to talk to a lawyer in complete privacy is one the benchmarks of our system. An accused should be afforded the opportunity to speak freely with his lawyer without wondering if that conversation is being overheard. What happened at 12 Division erodes the confidence in our justice system that is so essential.
Surely this was not the first time that voices could be heard outside the telephone room. We certainly don’t think so and are reviewing our files to uncover any other such breaches. This was an issue that was discovered by chance. It raises the question of how many such breaches are out there. Could it lead to more charges being stayed or withdrawn? To be clear, we are not accusing police of acting outside the law. But the mere notion of impropriety can undermine the confidence we have in our justice system.
Protecting your rights is essential
If you have been arrested for a DUI or any criminal matter, it is important to remember that you are innocent until proven guilty. You have rights, and the team at Calvin Barry Professional Corporation is here to ensure you are treated fairly and justly. When you are facing criminal arrest, your first call should be to us.