‘A gross offence’: Disabled driving case thrown out after police talk to Peel’s lawyer

A judge called it “a gross violation” of the charter and abruptly dropped the prosecution for unfit driving after discovering that the defendant’s conversation with his attorney at a Mississauga police station had been taped.

Section 10(b) of the charter guarantees the right to speak privately with an attorney – which did not happen at the 12th Division of Peel Regional Police on the evening of February 14, 2021, Ontario General Court Judge Bruce Pugsley found.

The case concerns a driver who was brought to the station after failing a roadside breath test early last year. After Peel officers read the man his rights to legal counsel, he spoke briefly to his attorney, Calvin Barry, from a “private” room.

However, video captured from a nearby “breathing room” and played in a Brampton courthouse last week also captured audio of the defendant speaking to Barry – revealing a “fundamental breach” of the charter, Pugsley said, according to one Transcript of the proceedings.

Despite officers’ efforts to have the accused speak to the attorney of his choice – Pugsley called it “a textbook method of what officers are supposed to do” – the conversation could even be inadvertently overheard from outside the attorney’s room and recorded. shows a possible “systemic problem” with soundproofing at the station, he said.

“Has this happened before in this department?” The judge asked Peel Traffic Const. Glenn Leonardo during last week’s charter disputes.

“It’s always been like this,” the officer replied.

He went on to explain that he had taken steps to ensure he could not overhear the conversation and that private calls to other police divisions were “much better facilitated”.

When Barry’s associate Rupinjit Singh Bal, the defendant’s attorney at court, spoke to the star about the case last week, he said he didn’t think Peel officials knew they were recording a private attorney’s interview.

A Peel Police spokeswoman said Tuesday prosecutors had contacted the force’s legal team after the issue was raised in court and immediate steps had been taken to request a review of breathing and counseling rooms in all implement police facilities.

“Tests showed that detectable but undetectable voices” were only present at 12 Division, spokesman Const said. Jennifer Dagg wrote to the star in an email.

“Although no specific words could be identified, steps were taken immediately. We recognize that this is unacceptable and have initiated temporary measures while we implement permanent solutions to address this issue.”

Violating an accused person’s privacy rights while seeking legal advice is an extremely serious violation of the constitution, Singh Bal said.

“If you can’t talk freely to your lawyer, then what’s the point of the whole exercise,” he said. “If I have a client who is charged with a serious misdemeanor and they call me from a police station … they need to be able to talk to me with peace of mind that no one is listening.”

Daniel Brown, a Toronto defense attorney and president of the Criminal Lawyers Association, wrote in an email that “it is far more serious when this behavior turns out to be part of a system failure.”

He called on Peel Region Police Chief Nishan Duraiappah to conduct an immediate investigation into the scope of the constitutional violations.

“Steps must be taken to notify the defendants affected by these violations and to correct the current situation that allows officers to overhear a detainee’s conversations with his attorney while in police custody,” Brown said.

In her email to the star, Dagg said Peel Police are “currently reviewing another case to ensure the privacy of the individual is maintained.”

Following Leonardo’s testimony in court last week, Pugsley immediately halted the proceedings and suggested the Crown drop the charges.

After a pause, the prosecutor said he maintained the charges.

The judge, who previously sat in Orangeville, noted that he was aware OPP departments were using consulting rooms that were “significantly soundproof.”

To underscore the seriousness of the violation, he said he once filed a charge simply because a camera was pointed through a police station window, “and you could see the defendant talking on the phone but couldn’t hear anything.”

Of the defendant, Pugsley noted that his very high blood alcohol level “suggests he’s an experienced drinker, which he might want to think about before killing anyone.”

SHARE: