In the March 28, 2011 issue of the Law Times (Vol 22 No 11) Michael McKiernan wrote about the recent case of R v Balgobin, 2011 ONCJ 108: "Breath evidence tossed". In his article McKiernan reports on the views of Balgobin's counsel, Richard Posner who reportedly commented that many police officers would avoid giving rights to counsel and view it as a nuisance. The cases indeed raises some concerns about the reported conduct of the officer involved, but is there really an epidemic of officers trying to avoid giving rights to counsel?

Balgobin was charged with "over 80". At trial he brought a motion to exclude the breath readings (which were almost twice the legal limit) on the basis that there had been a violation of section 10(b). On the facts, as outlined by McKiernan, it seems there could be little doubt that there was a breach. The officer apparently told the accused he might have to wait for two hours for a call back from a lawyer and despite the accused asking more than 30 questions about his legal rights the accused did not in fact ever take the opportunity to exercise his rights as he felt that he might be released faster if he did not exercise his right to counsel. After finding that this conduct amounted to a violation of section 10(b) the trial judge went on to exclude the samples under section 24(2).

In his article McKiernan outlines Richard Posner's views on the case (Mr Posner was counsel for Balgobin). Amongst those views are one that might catch your attention. Posner is reported to suggest that the case highlights the attitude of many police officers about the right to counsel; he then stated "[t]here's a feeling that it's a technicality, something they've got to get done...[a]nd if it can be avoided, so much the better. It's a nuisance for them".

Is this really the view of "many police officers"? With respect, despite what appears to be troubling conduct on the part of the officer in Balgobin, it seems unfair and unfounded to use that decision as an opportunity to indict "many" other officers. Indeed, consider how many impaired/"over 80" trials take place everyday in Canadian courts; then do a quick search and see how many section 10(b) violations are found everyday...there are some; they are not the majority.

Police officers sometimes make mistakes. Others sometimes carelessly violate an accused's rights; still others may recklessly do so. Most police officers, however, actually take the Charter seriously and respect an accused's rights guaranteed thereunder. There is no epidemic of officers disrespecting the Charter - quite the contrary, which is undoubtedly one of the reasons why the Supreme Court brought about change to the section 24(2) regime in R v Grant, 2009 SCC 32.

DG Mack