Need immediate legal advice under investigation? There’s a right for that.
Today, the Globe and Mail’s released an article entitled “Better Access to Justice to Canada? There’s an app for that” espousing the benefits of technology in achieving access to justice. While a laudable goal, and perhaps achievable in part for many aspects of the law, the app that is featured in the article is one designed towards citizens’ interactions with the police.
Unfortunately, in the criminal law context, technology will fail.
It is easy to become mesmerized with the modern day miracle of being able to click one’s way of endless problems, yet one cannot click their way out of arrest.
Arrests, detentions, and investigations are emotional and volatile affairs. They are dynamic and are easily escalated by the slightest misstep. Mistakes are met with an unforgiving court systems that judges your actions in retrospect with extremely complicated and changing aspects of law.
As I have said on another occasion, using a legal rights app while being detained or investigated by police is like using WebMD when you’ve been shot.
Some things in life just need immediate professional advice and assistance – being detained or arrested is one of those occasions. It is so important in fact, that our Charter of Rights and Freedoms enshrines it law:
10. Everyone has the right on arrest or detention […] b) to retain and instruct counsel without delay and to be informed of that right…
Which brings to my first point:
You do not have a right to use your phone when arrested or detained.
Plain and simple: you do not have any right under Canadian law to be able to use your phone while being detained or while placed under arrest.
Therefore, don’t be surprised that while trying to surf through your app the police take your phone, seize it, and hold it for evidence. This is perfectly legal and expected whenever an arrest or detention is warranted. If the plan was to start clicking to quickly assess your rights in any given situation, your one means of doing that is already in police hands and probably lawfully. What do do now?
There is already an app for immediate and free legal advice: it’s the telephone button.
If I told you there was a new app out that let you speak to a specialist lawyer of your choosing, whenever you are arrested or detained and without delay, for free, and using advanced intelligence to adapt to your specific fact situation – you may have a hard time believing me.
Better still, that same app then might speak to the police and try to de-escalate the situation and gain helpful information so that they could then call friends and families to advise them of the predicament.
From there, that app might then arrange for the best sureties to attend your bail hearing the next day to get you out of jail. While all this is taking place, the app would then take detailed notes so that if any issue arose later on in your criminal case, it would all be documented.
Pretty amazing huh? Well, it has existed in Canada since April 1982 and can be downloaded from the Charter of Rights an Freedoms. The app is called a phone call to your lawyer and has had such great reviews, it is a constitutional right.
You open up your phone for investigation far beyond your immediate issue:
In 2014, the Supreme Court of Canada released a very important decision called R. v. Fearon. The Court held, in general terms, that so long as police a) have reasonable grounds to believe that evidence may be afforded from searching the contents of a phone, and that b) the phone is not locked, then they do not need a warrant.
Now imagine clicking away at your phone reading off your legal rights app and shouting out the various infringements at the police officer about to arrest you. Chances are that while you are doing all this, perhaps caught up in the outrage of what is happening to you, your phone isn’t locked.
This now opens police to not only seize your phone, but since it is unlocked, have unfettered access to its contents (photos, phone calls, SnapChats, etc.). If an offence is found, or related to your present predicament, that evidence is now admissible against you. And according to the Supreme Court of Canada, this is all perfectly legal.
Perhaps that phone would be better off in your pocket and locked with a passcode.
Obstruction of police is a very broad definition and used accordingly.
The charge of “obstructing police” is a very broad and widely used charge. It basically can encompass anything from shouting, to being in the way, to being rude, causing a disturbance, etc. How many times have you watched videos of people filming police interactions and being threatened with obstructing police if they kept up?
While I would concede that this type of charge is often unfounded and used in a way that is far beyond the intention of Parliament, it still doesn’t stop police from using it to diffuse highly volatile situations, or using it to quell a difficult detainee (like a person looking at their phone yelling about their rights). Don’t be surprised that in the process of using an app, you are arrested for obstructing police for failing to comply with their demands.
Being right, doesn’t get you un-arrested.
Proper knowledge of legal rights is just one piece of the issue when dealing with a situation of arrest or detention. To use another medical analogy: knowing you have cancer does not prevent you from succumbing to it. As I have also said on another occasion, access to justice means access to lawyers, not information.
You may be 100% right that your rights are being violated, or that you are being wrongfully arrested, improperly detained, or denied your right to counsel; however, that doesn’t mean it isn’t happening. It also doesn’t mean you can stop it.
To make matters worse, having a feeling of being “right” emboldens people to fight back and resist unlawful actions of the state. In turn, situations escalate and things get worse – quickly. Here is a case in point from a case I defended quite some time ago that illustrates the point. While I admired my client’s fortitude in standing up for his rights, know that there are consequences that flow the have to be addressed later on.
Which brings me to my next point:
Criminal law is reactive, not proactive.
When we as criminal lawyers get calls during the execution of a warrant, or when someone is being arrested, we cannot stop any of it. It doesn’t matter how unlawful we may think it is, or what we may express to the investigating officers – once police decide to act, then that is what is going to happen.
Lawyers play the role of advisors and recipients of information to later argue in Court that rights were violated if applicable. Even for lawyers, being right does not stop anything. It may result in a remedy later on, but for the moment it is what it is.
The entire criminal justice system is set up in a reactive, not proactive manner. Trying to proactively defend your rights off the use of an app, is not going to achieve anything because there is no one to appeal to in that instance. The only exception to proactive measures is the next topic:
Unlike apps, criminal lawyers can attempt to diffuse and deescalate.
Not only can lawyers offer valuable and highly tailored advice to the situation at hand, we can also act as effective mediators between the accused/detainee and the police. In those instances, nearly all parties are acting emotionally and perhaps out of character. Police are concerned for safety and detainees are upset with the perceived injustice.
On many occasions, I have personally spoken down both individuals and police from escalating situations to levels that everyone will regret. An app cannot be a calm voice on the other end of the line asking to see the bigger picture and attempt to gently persuade everyone to deal with the situation in a civilized manner.
Be proactive in your legal rights by finding a lawyer now, not while under arrest.
One good thing that comes from the idea of the app is a recognition is that at some point, you may need legal assistance. However, while being placed under arrest or detention is a poor time to decide what lawyer you wish to represent you so why not take the same level of active measures in finding a name of a lawyer to call now? If you have enough time to download an app, you have enough time to find the name of a lawyer to call if something arises where you might need one.
In our personal health, we take active measures to ensure there is always adequate care when we need it. This is why we all search for good family doctors – even if we are not sick.
The same thing can be said of good lawyers. You do not need to retain (i.e., pay) a lawyer in advance to know to call them when you are arrested or detained – you just need their name to give to the police when they ask you which lawyer you want to call. Know your rights, but more importantly, know your lawyer because that’s the only right that is going to be afforded to you when it all goes down.