Criminal Law

Stay serves setback to cops who delay right to counsel: Neuberger

By Staff

Police who delay an arrested person's right to counsel have suffered another setback in Ontario Superior Court after Toronto criminal lawyer Joseph Neuberger recently won a stay of charges against a man caught with a backpack full of stolen opioids.

The Mississauga man who was detected by police surveillance receiving a large stash of prescription medications from a pharmacy assistant was arrested outside the outlet and charged with possession of Fentanyl for the purposes of trafficking and two counts of possession of OxyContin for the purposes of trafficking.

But after a three-day hearing in Brampton — where Neuberger and colleagues with Neuberger & Partners LLP dissected the investigation by a drug unit from Peel Regional Police — the Crown withdrew the charges after it became clear the officers had delayed the man’s access to a lawyer and used information he provided in the interim to further their case against him.

“As a practice, certain drug units have typically suspended an accused's right to counsel when there is an anticipation of a search of a residence or a commercial property connected to the person they have detained,” Neuberger tells

He says police took the view that they could ask “tombstone information” — name, date of birth and address — even after the person has exercised his right to remain silent until he’s received advice from a lawyer.

Neuberger says his client had immediately requested a meeting with a named lawyer, but police took his driver's licence and asked him some questions, including his address. They then used that information to obtain a search warrant for his home, where they went and obtained more evidence and arrested two more people.

In two earlier cases, the Superior Court and Ontario Court of Appeal made it clear that information that might be considered a “tombstone,” if used for incriminating purposes as a substantial part of an investigation, violates the accused person’s right to remain silent under s. 7 and also s. 10B of the Charter, Neuberger says.

“This case is a very good recognition of the fact that the common practice to suspend someone's rights to counsel without giving any type of meaningful thought or analysis to whether the rights really do need to be suspended, and/or continuing to question an individual when they’ve asked to speak to a lawyer, are very serious violations of Charter rights,” he says.

“I’ve seen a trend of cases from our Superior Court and Court of Appeal which has really bolstered these rights, and I think they are incredibly important to protect people who are detained.”

Police can only delay a person’s right to counsel in exigent cases where the protection of police or the preservation of evidence are at stake, Neuberger says.

“A person is really quite vulnerable and in desperate need of legal advice when they are detained. Your only access to the outside world at that time is to your lawyer, so that’s a crucial right that should not be arbitrarily suspended or ignored,” he says.

However, in some police drug units it has become common practice to do this without any type of assessment or analysis, Neuberger says. “In many instances, people are held in custody for many, many hours without any access to legal advice and at the same time get questioned as to crucial pieces of information that would further the police investigation.”

The prosecutor, who was “very thoughtful,” saw after the three-day hearing that there were so many rights violations that they could not proceed, he says.

Neuberger and his team had pieced together officers’ notes to create a timeline of events and cross-examined officers about their views on the legitimate uses of tombstone information.

“There was a lack of understanding that obtaining information from a person who’s said, 'I want to speak to a lawyer' and that information is then used for a search warrant, is a violation.”

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