Judge rules woman gave up her rights out of “hopelessness” after the duty counsel’s unhelpful response over the phone.
A Toronto judge has sent an important reminder to lawyers who get phone calls from people after they’ve been arrested: be helpful, but also be nice.
Ontario Court Justice Leslie Pringle acquitted Edita Hajovska of impaired driving and driving with excess alcohol in her system, ruling that the duty counsel Hajovska spoke to over the phone for legal advice before taking a breathalyzer test was “yelling, rude and angry with her.”
She also found that the arresting officers failed to remind Hajovska that she was entitled to a reasonable opportunity to speak to a lawyer, and didn’t think of alternatives when she was having difficulty with the duty counsel.
“I find it is significant that even the police were shocked by the disregard with which Ms. Hajovska was treated by duty counsel,” Pringle wrote in her decision released last week. “Considering that the end result was that her right to counsel was thwarted, I am satisfied that the administration of justice would be brought into disrepute by admitting the breath samples.”
The duty counsel, Artis Tiltins, told the Star he “absolutely” denies being rude, and said he was having difficulty getting a word in during his conversation with Hajovska because she kept interrupting.
He said he was only permitted to testify about his tone during his two conversations with Hajovska, which he said was “very fine,” and the timing of the calls. Tiltins said he was not allowed to testify about the content of their conversations, or present his notes, because he was told that was covered by solicitor-client privilege.
“It looks (in the decision) like I was allowed to explain my case, but that’s not the case,” he said.
Hajovska’s trial lawyer, Steven Skolnik, did not return a request for comment.
“We have not had time to read the judgment so we are in no position to comment,” said Toronto police spokesman Mark Pugash. “However, I hope your story is as nuanced as the judgment.”
A spokeswoman for Legal Aid Ontario said they are investigating. Genevieve Oger said Tiltins is employed by a company that is contracted by Legal Aid to provide lawyers for the duty counsel hotline.
All of the details in this story are from Pringle’s decision.
Hajovska was arrested in the early hours of Feb. 20, 2013, after her vehicle slammed into the back of another on the Don Valley Parkway. The driver of the car sustained no physical injuries. Hajovska was taken to hospital and seen by a doctor. An officer on scene testified her car was “a write-off.”
She had had some beer with her husband earlier and left the house around 3:50 a.m. after fighting with her brother-in-law. Hajovska denied she was drunk while driving, but rather upset by the fight.
Tiltins and Hajovska came into each other’s lives at precisely 5:40 a.m., speaking over the phone with the help of a Slovak interpreter.
“She said Mr. Tiltins was yelling at her and was rude, and she was not able to get a word in or ask any questions,” Pringle wrote. “Accordingly she disconnected the phone and hung up. When she told Const. Kim what had happened, he told her that he knew this duty counsel could be quite rude.”
Tiltins was the only lawyer on the duty counsel hotline for the entire province at that time.
It was decided to call Tiltins back. An officer testified that Tiltins refused to wait until Hajovska had finished seeing the doctor, saying his company guidelines state he is required to wait only five to 10 minutes to speak to the accused, otherwise they must call back. Hajovska said the second phone conversation was also hostile and unhelpful.
The officer “felt he had to admonish Mr. Tiltins,” and told him he would consider filing a complaint with the Law Society of Upper Canada.
“I appreciate that it was busy that night, and that Mr. Tiltins was the only duty counsel on duty for the entire province,” Pringle wrote.
“However, this was not some drive-through business, and Mr. Tiltins was not a minimum-wage employee who had little ability to use his discretion or exercise his own judgment about the service he was providing.
“In fact, Mr. Tiltins was providing an important legal service to a person whose liberty and security of the person were in jeopardy; he was a fully qualified lawyer and a professional providing legal advice to a person arrested for a criminal offence.”
Hajovska finally agreed to take the breathalyzer tests “out of hopelessness,” Pringle wrote.
Oger, at Legal Aid, told the Star there is only one duty counsel on from 5 a.m. to 8 a.m. Monday to Thursday, but another is on call and there are contingency plans in place in case call volume becomes overwhelming.
“You shouldn’t feel rushed to get off the phone with a lawyer, and if this lawyer is so busy because he’s trying to deal with people across the province, it undermines the effectiveness of the duty counsel program,” criminal defence lawyer Daniel Brown told the Star.