When Behchokǫ̀ RCMP failed to contact a lawyer for a prisoner they violated his Charter rights, a judge found, collapsing the domestic violence case against him.
Judge Garth Malakoe, of the NWT Territorial Court, found “other policing duties took precedence over having the accused speak to a lawyer,” contributing to a 16-hour “arbitrary” detention that violated the man’s rights.
“During their testimony, neither Cst [Patrick] Carriere, nor Cst [Sean] Thomson gave the impression that the accused’s right to counsel was foremost in their minds,” Malakoe stated in a recent ruling.
Officers’ approach to the Charter rights of Wayne Sabourine, Malakoe concluded, amounted to: “We will get around to it when we have nothing more important to do and, if the two phone numbers do not work, we will try them again when we get a chance.”
At 3:33am on Sunday, August 16, 2020, Cst Carriere arrested Sabourine, after observing what Carriere believed to be an assault by Sabourine on his partner near the front steps of the couple’s residence.
Carriere read Sabourine his Charter rights. Sabourine expressed his desire to speak to a lawyer and was lodged in a cell at the detachment at approximately 4am.
He was detained for close to 16 hours – initially so he could “cool off” emotionally, to protect the victim – before being released on conditions.
The main number in the detachment’s phone room for legal services is a 24-hour advice line in Victoria, BC.
Multiple attempts by the two officers to secure legal advice through two phone numbers that day were met by “a recording and then a busy signal,” stated the judge.
There was also a list of NWT lawyers, including their office numbers and, in some cases, cell numbers. But in the officers’ experience, the judge said, “there would be no answer at the office numbers outside of business hours and the lawyers would not answer their cell phones.” So no attempts to contact those lawyers were made.
In his February 18 decision, Malakoe stated the two officers should “not have been so easily thwarted by a problem with the two legal aid telephone numbers.”
The judge decided their conduct demonstrated “at best” a casual indifference to Sabourine’s Charter rights.
“At worst,” stated Malakoe, ”if there were ongoing problems with the telephone numbers, which the officers were aware of and which they considered an impediment to contacting counsel, then there was a systemic issue which seems to have been accepted and not addressed.”
Phone issues ‘not controlled by RCMP’
A senior NWT RCMP officer told Cabin Radio a review will be conducted into the case.
“The RCMP certainly consider decisions made by the judiciary and what impact they may have on operations,” stated Insp Barry Larocque in a response to emailed questions from Cabin Radio.
“The functionality of the legal aid line, or whether lawyers answer their phones after hours or on weekends, is not an issue controlled by the RCMP, hence it will be again brought to the attention of other partners.”
Karen Wilford, executive director of the NWT Legal Aid Commission, told Cabin Radio free advice – the Brydges Line, used by most provinces and the three territories — is available on a 24-hour basis, including all weekends and holidays.
“On occasion, there is a delay in responding due to call volume or technical issues with the phone system,” stated Wilford. “The obligation to provide timely access to legal advice is the obligation of the state, through the agency of the police.”
The Crown conceded there was a breach of Sabourine’s right to counsel but denied there was an arbitrary detention. The Crown argued there was no justification for the judge to exclude officers’ evidence as a corrective measure or direct a stay of proceedings, which is often the equivalent of dropping charges.
Instead, the prosecutor said Sabourine’s sentence could be reduced – if he were found guilty of the assault – as a form of compensation.
Malakoe stated Canadian legal principles allow for some circumstances in which a delay in providing access to a lawyer is acceptable, but added those circumstances relate to police or public safety or the preservation of evidence.
“These circumstances were not present in the situation of Mr Sabourine,” stated the judge. “Whatever the reasons for these breaches, the Court has to send a message that the lack of understanding or indifference cannot continue.
“In my view, a reduction in Mr Sabourine’s sentence, should one be imposed, does not carry that denunciatory message.
“The only appropriate remedy is an exclusion of evidence or a stay of proceedings.”
Malakoe decided to exclude the evidence of Cst Carriere – the only evidence the Crown presented at Sabourine’s trial in Behchokǫ̀ on April 30, 2021.
“If the defence calls no evidence, the court will be prepared to enter an acquittal,” Malakoe added.