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Breath evidence tossed

|Written By Michael McKiernan

A judge has excluded the results of a 20-year-old man’s breath test from evidence after finding his Charter rights were breached when police discouraged him from calling duty counsel.

‘The system has to be fairly fastidious in ensuring access to counsel,’ says Richard Posner.

Rickford Balgobin’s breath test indicated he was driving at almost twice the legal limit for blood alcohol concentration when pulled over in 2008, but Justice Rick Libman of the Ontario Court of Justice found his waiver of the right to counsel “was not a valid or informed one” because police had misled him about how long it would take to speak with a lawyer.

“This conduct of the breath test operator in seeking to dissuade a young person, who is inexperienced in dealing with the police and has been charged with drinking and driving offences, from speaking to a lawyer and obtaining legal advice, must be denounced in the strongest and clearest terms; indifference to constitutional standards cannot be tolerated.

In this particular case, it results in the administration of justice being brought into disrepute,” Libman wrote in his judgment earlier this month.

Balgobin’s lawyer Richard Posner, managing partner at Lockyer Campbell Posner, says the officers involved were rightly “called on the carpet.”

“There’s a reason that you’ve got the right to counsel, and that right should be given a fairly robust protection,” he says. “The system has to be fairly fastidious in ensuring access to counsel.”

According to R. v. Balgobin, an Ontario Provincial Police officer patrolling Highway 401 in northeast Toronto stopped Balgobin, who had never been arrested before, at 2:40 a.m.

Another officer, Const. Warner Muller, told the accused he could have languished for up to two hours in a cell while he waited for a call back.

In fact, the court heard Legal Aid Ontario had received 998 duty counsel calls that month for drinking and driving offences, and all but five had received a response within 45 minutes. None of them took longer than an hour.

Muller testified he was merely pointing out the delay that could result from exercising his right to counsel as Balgobin was clearly concerned about his release from custody as soon as possible. Confronted with the LAO statistics, he said he was aware of a case in which it had taken two hours for a return call.

“When asked to describe the circumstances of that case and the name of the individual involved, the officer testified that he could not remember,” said Libman, who also described the officer’s explanation as “preposterous and offensive.”

“I find Muller’s statements to the defendant, therefore, to be a calculated use of rhetorical exaggeration . . . designed to persuade a youthful, inexperienced, and intimidated defendant that the quickest way out of custody was simply not to take the time to exercise his legal rights.”

Balgobin spent a total of 40 minutes with Muller. During the first 12 minutes of the interview, Balgobin asked more than 30 questions about his legal rights and whether he could speak to a lawyer. He eventually decided not to, reasoning that he’d be released more quickly in that case.

In an affidavit, he said he thought it would be a good idea to get in touch with a lawyer to fully understand the consequences of taking or declining the breath test.

“I was scared about being in a police station and the thought that I would have to sit in a jail cell for two hours waiting to speak to a lawyer was not something I could bear,” Balgobin wrote.

During an interview between his breath tests, which both registered 133 milligrams per 100 millilitres of blood, Balgobin told Muller he had consumed three martinis and two beers over six hours but added that he didn’t feel impaired.

According to Posner, the case highlights the attitude of many police officers about letting

detained people know about their right to counsel.

“There’s a feeling that it’s a technicality, something they’ve got to get done,” he says. “And if it can be avoided, so much the better. It’s a nuisance for them. I find that troubling.”

But OPP spokesman Sgt. Pierre Chamberland says it’s unfair to generalize about police attitudes based on one case. “We’re obliged to respect those constitutional rights and obey the law,” he says. “Generally speaking, from my own experience, that’s what happens.”

Posner says exclusion of evidence from breath tests has become increasingly rare since the 2009 Supreme Court of Canada decision in R v. Grant. It set a stringent three-part test for the exclusion of evidence as a result of a breach of a right under the Charter of Rights and Freedoms.

“It probably happens more than it should, not because of judicial impropriety but because of police disregard for constitutional rights,” he says.

In the Balgobin case, Libman concluded the breach was serious enough to outweigh the strength of the evidence against him.

“I am of the opinion that the significant impact of the Charter of Rights breach of the right to counsel, and the lack of good faith on the part of the officer, weighs most heavily in favour of exclusion of the evidence,” he wrote.

According to Posner, nobody wants to see such evidence excluded because of the public’s interest in seeing cases tried on their merits.

“Yet the public wants to see that people who are arrested and come into contact with the police are treated in a fair way, and it’s not a level playing field,” he says.


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