Drug evidence tossed over police delay in allowing accused access to lawyer

TORONTO — Another prosecution case of a person caught with hard drugs has fallen apart because police refused him timely access to a lawyer.

In his decision, Ontario court Judge Patrice Band said admitting the drug evidence in the case of a man identified in court records only as L.D. would bring the system of justice into disrepute.

“The police violated L.D.’s right to counsel by deliberately delaying it upon arrest, and then failing to facilitate its implementation for a period totalling approximately 20 hours,” Band wrote in his decision.

“Despite the fact that the evidence is essential to the Crown’s case, the breach was so serious as to lead to the conclusion that the admission of the evidence in these proceedings would bring the administration of justice into disrepute.”

In May 2018, a five-person Toronto drug-squad team searched a car belonging to the accused as well as two homes. The searches turned up more than a kilogram of cocaine and other drugs as well as $7,500 in cash.

Det. Const. Rajan Bhogal arrested L.D., 41, and another officer advised him of his right to a lawyer. However, according to legal submissions, Bhogal told a uniformed officer to take L.D. to the police station, but to hold off on letting him call counsel. Ultimately, it would be the next day before he was able to speak to a lawyer.

L.D. argued for the exclusion of the drugs and cash as evidence on the basis police infringed his constitutional rights. The prosecution maintained that Bhogal’s decision to delay access to counsel was justified by safety concerns and preservation of evidence.

Bhogal, a 12-year member of police force at that point, testified it was sometimes important to stop a suspect from calling a lawyer to avoid others being tipped off to an impending raid. He said he decided to suspend L.D.’s rights during the arrest until it was “safe to do so” in light of the searches at the various locations.

Bhogal conceded L.D. had no known involvement with violence, gangs or firearms, but said the accused could have had partners.

Testifying in his own defence, L.D. said he asked for a lawyer on arrest and again on arrival at the police station. Despite some attempts by Bhogal to reach a lawyer, L.D. only got to speak to one the following day at bail court.

Suspending a person’s right to counsel is an “exceptional step” that should only occur in cases where urgent and dangerous circumstances arise, and then only for as long as necessary, Band said. Such circumstances didn’t exist in this case, he said. The judge also faulted Bhogal for failing to take proper notes about the lawyer issue.

While the drug evidence would be reliable, Band said the material could not be admitted even though it “gutted” the prosecution’s otherwise solid case.

“In sum, D. C. Bhogal let L.D. and his rights fall through the cracks,” Band concluded. “The charter-infringing conduct in this case was very serious and strongly favours exclusion.”

In a similar case last week, Ontario’s top court quashed a drug conviction for a man in Oshawa, Ont., because police denied him his right to a lawyer for more than three hours.

This report by The Canadian Press was first published on Nov. 8, 2019.

Colin Perkel, The Canadian Press

drug evidence tossed

Just Posted

An incredible closing ceremony capped off the 2019 Canada Winter Games. (File photo by SUSAN JUDGE/2019 Canada Winter Games)
2019 Canada Winter Games Legacy Fund Society hands out $655,000

35 not-for-profit groups across Alberta to get money

Dr. Verna Yiu, president and chief executive officer of Alberta Health Services, says COVID ICU patients have increased by more than 100 per cent in the past month. (Photo by The Government of Alberta)
Record number of people in ICU: says AHS president

The head of Alberta Health Services says hospital staff are treating more… Continue reading

The Red Deer Rebels have acquired goaltender Connor Ungar from the Brandon Wheat Kings, the team announced Monday. (File photo by Advocate staff)
Red Deer Rebels acquire goaltender Connor Ungar, forward Liam Keeler in separate trades

The Red Deer Rebels have acquired goaltender Connor Ungar from the Brandon… Continue reading

Alexander Michael Talbot, 29, was found guilty of operating a vehicle while prohibited, flight from police and vehicle theft in Red Deer provincial court recently. (Advocate file photo)
Man charged following police chases in central Alberta last summer is sentenced

Alexander Michael Talbot sentenced to 22 months in prison

Red Deer musician Curtis Phagoo is glad the Alberta government is investing $2 million to help the province’s live music industry, but he would have liked the criteria to be expanded, so the money could be used as relief to cover revenue shortfalls. (Contributed photo by Cory Michaud)
Red Deer musicians welcome $2M in grants to help live music, but would have preferred relief program

The money is for future projects and can’t be used for retroactive expenses

FILE - In this Feb. 3, 2021, file photo, exile Tibetans use the Olympic Rings as a prop as they hold a street protest against the holding of the 2022 Beijing Winter Olympics, in Dharmsala, India. Groups alleging human-rights abuses in China are calling for a full boycott of the Beijing Olympics, which is sure to ratchet up pressure on the International Olympic Committee, athletes, sponsors, and sports federations. A coalition of activists representing Uyghurs, Tibetans, residents of Hong Kong and others, issued a statement Monday, May 17, 2021 calling for the “full boycott,” eschewing lesser measures like “diplomatic boycotts" and negotiations with the IOC or China. (AP Photo/Ashwini Bhatia, File)
AP Exclusive: Full-blown boycott pushed for Beijing Olympics

AP Exclusive: Full-blown boycott pushed for Beijing Olympics

Canada's Eric Lamaze riding Fine Lady 5 during the CP International competition at the Spruce Meadows Masters in Calgary, Alta., Sunday, Sept. 8, 2019. Canada's most decorated show jumper has withdrawn from consideration for the Tokyo Olympics. THE CANADIAN PRESS/Jeff McIntosh
Canadian show jumper Eric Lamaze withdraws from Tokyo short list

Canadian show jumper Eric Lamaze withdraws from Tokyo short list

Toronto Raptors head coach Nick Nurse questions a foul call during the first half of an NBA basketball game against the Cleveland Cavaliers Monday, April 26, 2021, in Tampa, Fla. Nurse says it was the COVID-19 outbreak in March that spiked his team's chances for a post-season run.THE CANADIAN PRESS/AP/Chris O'Meara
Nurse faces a busy off-season, much busier if Canada qualifies for Tokyo Olympics

Nurse faces a busy off-season, much busier if Canada qualifies for Tokyo Olympics

Hockey Hall of Fame inductee Danielle Goyette speaks to reporters during a press conference in Toronto on Friday, November 10, 2017. Goyette has been named director of player development for the NHL's Toronto Maple Leafs and their American Hockey League affiliate. THE CANADIAN PRESS/Christopher Katsarov
Hayley Wickenheiser, Danielle Goyette together again on Toronto Maple Leafs staff

Hayley Wickenheiser, Danielle Goyette together again on Toronto Maple Leafs staff

Carolina Hurricanes center Jordan Staal (11) falls on Nashville Predators center Yakov Trenin (13) during the first period in Game 1 of an NHL hockey Stanley Cup first-round playoff series in Raleigh, N.C., Monday, May 17, 2021. (AP Photo/Gerry Broome)
Staal, Niederreiter lift Hurricanes past Predators 5-2

Staal, Niederreiter lift Hurricanes past Predators 5-2

Washington Capitals center Lars Eller (20) watches the puck get past Boston Bruins goaltender Tuukka Rask (40) on a shot by Washington Capitals right wing Garnet Hathaway during the first period of Game 2 of an NHL hockey Stanley Cup first-round playoff series Monday, May 17, 2021, in Washington. (AP Photo/Alex Brandon)
Marchand scores in OT, Bruins beat Capitals to even series

Marchand scores in OT, Bruins beat Capitals to even series

Toronto Maple Leafs former players Darryl Sittler, centre, Johnny Bower, centre right, are joined by Ted Kennedy's son Mark for a ceremonial puck drop with Montreal Canadiens' Andrei Markov, left, and Toronto Maple Leafs' Dion Phaneuf, right, before NHL action in Toronto on Wednesday, October 8, 2014. THE CANADIAN PRESS/Frank Gunn
Leafs, Canadiens legends eagerly awaiting playoff series

Leafs, Canadiens legends eagerly awaiting playoff series

Conservative MP Ron Liepert rises during Question Period on Parliament Hill, Friday, March 10, 2017 in Ottawa. Ron Liepert says these days, the phone calls and emails from people wanting to talk about his party's climate plan have slowed. THE CANADIAN PRESS/Justin Tang
Western MP pitches Conservative carbon price with a 24-pack of Pilsner

Western MP pitches Conservative carbon price with a 24-pack of Pilsner

Most Read