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

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