Do you have a right to Google a lawyer upon arrest?  Maybe.

A recent decision from an Alberta Provincial Court has raised an interesting question for a person’s to contact a lawyer in the age of the internet: Do you have the right to Google your lawyer when under arrest? The decision of R. v. McKay 2013 ABPC 13 says yes.

The times have changed and looking for a lawyer on the internet is often the first step:

The case came before Justice H.A. Lamoureux and focused squarely on what criminal lawyers describe as “implementation duties” of police when effecting a person’s right to counsel under section 10(b) of the Charter of Rights and Freedoms.   The defence argued that in the present day and age, it is unsatisfactory for the police to not allow an accused person reasonable access to the internet to find the lawyer of their choosing.

Up to the present, it is rather uncontentious that a person under arrest must be provided up to date lawyer directories and/or Yellow Pages in order to search for a lawyer they know or of their choosing.   However, the issue of searching on the internet for a lawyer is far less clear, if ever decided at all.  In short, the accused argued that “internet access should form part of the resources provided by police to detainees in order to allow them a reasonable opportunity to exercise the right to counsel.”

The accused, Mr. McKay was arrested for impaired driving in Calgary in August of 2012.  According to police, the accused was provided with several resources to contact counsel including a toll free number, 4-1-1 for information on phone numbers, and current editions of the white pages and the yellow pages.   It was conceded by police that Mr. McKay was not provided any means to access the internet while he was detained.  Regardless of that lack of resource, the police asserted that Mr. McKay did not ask for internet access while under arrest.

“It’s 2013 Your Honour, no one uses the Yellow Pages anymore”

Mr. McKay testified on his own behalf on the motion and stated that in the area of the phone there was a toll free number on the wall that he used on the basis that the officer told him it was a number for free legal advice.  Mr. McKay did not recall telephone books or them being pointed out to him.  He testified that under normal circumstances he uses Google to access information he needs.  He further testified that he didn’t really know what 4-1-1 was about and did not consider it a “viable search engine”.   Mr. McKay was adamant that if he was provided the opportunity, he would have used Google to find a lawyer of his choosing.

In a very insightful view of Google and it’s use in contemporary culture, Justice Lamoureux wrote:

[10]           We are at an unprecedented time in human history.  The real world exists parallel to and in tandem with the virtual world.  It is uncontroverted that the vast majority of individuals born after the year 1980 first look to the virtual world for information, for education, for access to services, before they consider access to anachronistic services such as paper telephone directories and numbers posted on a wall.  The computer generation considers the internet, the cell phone, the iPad, the Smartphone, essential partners in daily life.  The average 19 year old looks to Google as a source point for much of the information necessary to carry on daily life.  Google mapping, driving motor vehicles with the assistance of Google, access to restaurants, access to medical care, access to Universities and educational information, and access to lawyers, along with millions of other items of information are all contained on the metasource – Google. Indeed Google seeks as one of its missions to become the source of original information for the world.

Going further, the judge took “judicial notice” of the notoriously known fact that if a 19 year old is arrested and wished to seek legal counsel he or she would do so on the internet well before using the White Pages or Yellow pages, or 4-1-1.   Indeed, he went so far as to accept Mr. McKay’s evidence that he had no comprehension of what 4-1-1 was.   The judge went on to demonstrate that a simple Google Search of “Calgary criminal defence lawyers” would immediately provide very useful contact information for anyone seeking immediate advice.

A generational thing, but one generation ought not to have more enhanced rights over another.

Although these findings may be hard to accept for anyone born before 1990, asking any 19 year old to find a phone number on 4-1-1 may be a very surprising exercise.  It would also be an interesting exercise to ask that same category of younger people if they even know what Yellow Pages or White Pages are, let alone use them to find phone numbers.  The judgment of R. v. McKay will undoubtedly be a controversial decision that will be appealed to a higher level.  What will be interesting to see are the arguments raised by the Crown to do with resources, security issues, and other excuses argued in the past against phone books and other means to access counsel.

The judgment is an evolved and enlightened reassessment of the implementational duties of the right to counsel under section 10(b).  Time will tell with what happens with this new right, and whether the generation gap between judges who are generally speaking do not use or fully appreciate how pervasive and integrated Google is to younger generations and their access to information.  In my view, there is no question that it is simply a matter of time before internet searches are an essential component of the implementational duties of police officers as younger generations become judges, and phone books become a relic of history.   However, I am not so confident that we have reached an enlightened stage as this judge did quite yet.