TRURO - Police are duty-bound to take all reasonable steps to "immediately" connect detainees with their legal counsel of choice, a Nova Scotia Supreme Court Judge says.
And the Truro Police Service blatantly failed in that regard, Justice Robert Wright said, in recently excluding the police statement of a sexual assault suspect from being used as evidence in his trial.
Anyone arrested or detained by police has the right 'to retain and instruct counsel without delay and to be informed of that right,' according to Section 10(b) of the Canadian Charter of Rights and Freedoms.
"Well, as it happens," Wright said, at the start the trial against Robert Henry Desmond and Michael Shane Paris, "without delay' was interpreted by the Supreme Court of Canada very recently ... that the words 'without delay' means immediately. It doesn't mean, as long as it's before the statement is given. It means immediately."
After being arrested about 2:30 a.m. last Sept. 19. Desmond was read his Charter rights and taken to police headquarters. Once there, he loudly "demanded" to speak with Halifax criminal lawyer Joel Pink.
Court heard that shift supervisor Corporal Darrin Smith called 411 and obtained the number to Pink's office and left a message on voice mail that Desmond wished to speak with him.
Slightly less than an hour later he went back to the cell area and advised Desmond of what he and done and that it was unlikely Pink could be reached at that hour.
Wright said the actions of Smith and subsequent officers involved with Desmond throughout the next day were completely inadequate.
"That was the extent of the efforts made by Cpl. Smith. He said it didn't cross his mind to call Mr. Pink at home or to even look for his home number, even though he acknowledged that the Truro Police Service keeps a Halifax telephone book at the station," Wright said.
Desmond's defence lawyer Dave Mahoney objected to the use of the statement during the preliminary inquiry for the case held last fall. During that hearing, court heard that a local RCMP officer faced with a similar situation a couple of months after Desmond was arrested, was able to reach Pink in the off hours by looking up his home number and calling him there.
"Just to demonstrate how easily that could be done," Wright said, in citing the example.
"Mr. Desmond was nonetheless left to sit and wait with the impression that a call was in to Joel Pink and that hopefully there would be a call back because that is the way it was left with him by Cpl. Smith. And, in fact that was a completely artificial situation."
Wright said the officers were wrong in not doing more to accommodate Desmond's request to speak to Pink, especially in knowing the lawyer's office was likely to be closed for the weekend.
"That was a totally ineffectual way of approaching it. It was a completely inadequate step to be taken," Wright said..
"There was a complete lack of diligence on his part in ignoring Mr. Desmond's request for counsel of choice," Wright said, of Smith.
"He was the shift supervisor and nothing of any adequacy or consequence happened under his watch. The breach that thus occurred was never rectified as the hours wore on, but rather, was compounded by an apparent lack of communication between the officers as the shifts changed during the day, from Smith to (Cpl. Loran) Morrison to (Sergeant Rob) Hearn....
"Negligence or willful blindness is not good faith and police are rightly expected to know what the law is once the rules are established. And, since the taking of statements is already highly regulated, there is heightened concern with proper police conduct over statements," the judge continued in his ruling.
"Public confidence in the justice system depends upon police adherence to the law in obtaining statements so that only minor inadvertent slips will favour omission," Wright said.
"I find the breach ... to be of serious proportions. The right to counsel means the right to counsel of choice and without delay. Without delay means immediately."
The judge ruled Desmond's statement was inadmissible.
