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Accused in child porn trial denied chance to call lawyer

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Brandon court house (FILE)

Whether or not a senior accused of making child porn is convicted may come down to a matter of policy and procedure.

City police officers had been known to book accused at the city jail and leave it up to jail staff to ensure suspects got to call a lawyer if they wanted — but that practice didn’t follow police force policy, court was told Wednesday.

And in this case, the accused didn’t get a chance to call a lawyer after being booked at the Brandon jail.

"When you’re taking people down to Brandon Correctional Centre to provide them the right to counsel, you’re not following your own policy, are you?" defence lawyer Philippe Richer asked a police officer during cross examination in Brandon Court of Queen’s Bench.

"No, I guess. According to the paperwork there, no," the officer replied after being shown the policy.

A 76-year-old man is on trial this week for making and possessing child porn.

Two women testified that in November 2011, when they were both 15 years old, the accused took them to his trailer home just outside the city, plied them with alcohol and then took pictures of them nude.

The Brandon Sun isn’t naming the accused to ensure that the identities of the girls are protected as required by court order.

As the trial began Monday, Richer said he intends to argue the charges should be dropped because his client’s rights under the Charter of Rights and Freedoms were breached.

The Crown has agreed there was a breach of the accused’s right to counsel during his arrest and continued detention at the Brandon jail the next day. Section 10 (b) of the Charter states that everyone has the right, on arrest or detention, to retain and instruct counsel without delay and to be informed of that right.

Specifically, Crown and defence agree (for a reason not specified in court) the accused was never provided his right to call a lawyer after police took him to jail to be held there following his arrest. He remained there about 21 hours before police picked him up to take him to the police station for an interview.

As a result of the breach, the Crown has already agreed to exclude from trial a statement made by the accused to a Brandon police officer, and a package of photos found at his home by police.

Much of Richer’s cross examination of police officers and jail staff during the last three days has focused on his client’s arrest, detention and right to counsel.

It was up to Brandon police — not jail staff — to make sure the accused got a chance to call a lawyer after he told police he wanted to during his arrest, Richer argues. Police shouldn’t have delegated that responsibility to jail staff.

A police officer, who assisted with the arrest and transported the accused to the Brandon Correctional Centre, said he told a jail staff member that the man wanted to speak to a lawyer, but the police officer didn’t take steps to see that done himself.

The officer acknowledged in cross examination that the practice of having an accused call a lawyer at the jail didn’t follow the police force’s own written policy on arrest and confinement.

Richer noted the policy mentions various steps to follow to allow suspects to call a lawyer from the police station — lawyer names and phone numbers are to be provided in interview and holding rooms, for example. But it doesn’t include procedures for providing a suspect or accused the right to call a lawyer from jail.

Police now have a new practice to ensure suspects get a chance to call a lawyer at the jail, court heard. Police officers direct a suspect into a specific room and ensure they’ve made contact with legal counsel.

Richer maintains that his client’s rights under Section 9 of the Charter were also breached. That section states that everyone has the right not to be arbitrarily detained or imprisoned.

During cross examination of the lead investigator, Richer questioned the length of time his client was held in custody prior to being released by police (about 24 hours).

The investigator said the accused was held, in part, to preserve evidence as members of the RCMP Integrated Child Exploitation Unit weren’t available to search the accused’s home until the morning after his arrest.

» ihitchen@brandonsun.com

» Twitter: @IanHitchen

Republished from the Brandon Sun print edition April 17, 2014

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Whether or not a senior accused of making child porn is convicted may come down to a matter of policy and procedure.

City police officers had been known to book accused at the city jail and leave it up to jail staff to ensure suspects got to call a lawyer if they wanted — but that practice didn’t follow police force policy, court was told Wednesday.

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Whether or not a senior accused of making child porn is convicted may come down to a matter of policy and procedure.

City police officers had been known to book accused at the city jail and leave it up to jail staff to ensure suspects got to call a lawyer if they wanted — but that practice didn’t follow police force policy, court was told Wednesday.

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