Imagine this – through some series of poor decisions or just a momentary lapse in your otherwise good judgement you’re suddenly in the wrong place in the wrong time. You know you have a right to silence under section 7 of the Charter, but you also know you’re in over your head and need experienced legal counsel.
The arresting officer turns around in his seat and asks – “do you have a lawyer you wish to call?”. “Do I have a lawyer?” You think this question over with some level of surprise. “I’m not a mobster or a high-powered Bond villain. I don’t have one on speed dial let alone a number memorized” you muse to yourself. Then you think of that catchy commercial and that lawyer you saw on TV. For a moment you know exactly who to call, but as soon as you open your mouth you immediately close it as you remember that Alan Shore, Saul Goodman, Harvey Specter, Lionel Hutz, and Bob Loblaw are all fictional characters.
How do you find a lawyer then? You’ve never been in a police station before, you’ve never even been pulled over for speeding – you have no idea who to call. Why not answer it the way you answer all your other questions, both mundane and important? Can you just Google a lawyer?
Well, first – do you have the right to a lawyer?
In short, yes. S. 10(b) of the Charter guarantees this right. S. 10(b) outlines that – “Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.”
The Supreme Court R. v. Willier describes the circumstances that trigger s. 10(b) and why it’s so important.
“Accordingly, 10(b) provides detainees with an opportunity to contact counsel in circumstances where they are deprived of liberty and in the control of the state, and thus vulnerable to the exercise of its power and in a position of legal jeopardy. The purpose of s. 10(b) is to provide detainees an opportunity to mitigate this legal disadvantage.”
If we unpack 10(b), it becomes clear that there are two types of rights contained in s. 10(b) which impose certain duties upon state actors, such as police:
- Implementational: The right to retain and instruct counsel without delay, and
- Informational: The right to be informed of that right.
Returning to R. v. Willier , the Supreme Court leans on an older SCC case, R. v. Bartle, and outlines three duties imposed on police who make an arrest or effect a detention by 10(b). The SCC, in R. v. Suberu, confirms that the first duty is informational.
- To inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel.
The term “without delay” and the right to counsel were discussed in depth by the SCC in R. v. Prosper. McLachlin J. made it clear that the meaning of “without delay” was exactly what it sounded like and stated in her concurring reasons – “This means that every detainee is entitled to an opportunity to retain and instruct counsel without delay, regardless of the time and place of the detention or the fact that the detainee has no money.” It is also inherent that when this right to retain and instruct counsel is being exercised, privacy is afforded – as discussed in R. v. Playford
The second and third duties are implementional. What is common to all three duties is that they are triggered immediately upon arrest or detention since the underlying purpose that animates s. 10(b) is engaged once an arrest or detention has taken place.
- If a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and
- To refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).
From the moment an individual is detained, s. 10(b) is engaged and, as the words of the provision dictate, the police have the obligation to inform the detainee of his or her right to counsel “without delay”.
So, you have a 10(b) right under the Charter. The arresting officer puts you in a small room with a phone receiver and some weathered paper taped to the wall that bears a 1-800 number and the words “Duty Counsel” above it. You sit down in the metal folding chair and the officer asks you what number you want him to call.
No. This isn’t a “reasonable opportunity to exercise the right” to counsel set out in s. 10(b) of the Charter.
It would be a meaningless right if the police were merely required to provide the informational component of that right without a further requirement to take any steps to assist a person they have detained to exercise that right. The police usually control access to the phone, phonebooks and other means of contact in the station. This control brings with it an obligation to make sure that an accused who has made a request to speak to counsel of choice will be provided with the means to do so.
If you want to speak with particular counsel you must be advised of phonebooks and other resources that may be available at the police station to assist them in obtaining the necessary phone numbers. Further, they must be given a reasonable opportunity to contact counsel of choice before resort is made to duty counsel.
You advise him of your implementational rights and he reluctantly returns with a phonebook. The officer leaves and the heavy door slams behind him. You open the phonebook two thirds in and flip through the worn yellow pages to the “L” section to look for your lawyer. Unfortunately, you can’t seem to find the one you recall, your counsel of choice. The lawyer ads in the Yellow Pages suddenly recall a fragmentary recollection of his lawyer’s name or contact information
You knock on the door and the officer eventually returns. The door swings open and he and asks – “are you done now? I have so many questions to ask you.”
It depends. In Alberta (R. v. McKay), the court observed on the ubiquity of the internet and the dependence of persons born after 1980 on it as their primary source of information, not to mention the efficacy of internet information searches for legal counsel. The Court also noted that the police routinely access the internet to investigate crime and gather information, so the same opportunities should be afforded to accused persons. Thus, the Court found that in the year 2013 police providing access to the internet is part of a detainee’s reasonable opportunity to contact legal counsel. Furthermore, it held that the police failed to meet its onus of proof with respect to the first implementational duty on the part of the police and that the accused was not given a reasonable opportunity to exercise his right to access a lawyer.
On appeal, this finding was reversed but the Alberta Court of Appeal stated that they essentially agreed with the idea in spirit and concurred with the Trial Judge that it is time for the police to modify their procedures. The Court stated that:
“If a detainee were to express to the police difficulties in using traditional resources or specifically request Internet access to facilitate contact with counsel, the police might be required to provide Internet access in such circumstances in order to meet their implementational duty under section 10(b).”
R v. Alaia, a 2017 Alberta case, adds that each case is fact specific, but echoes McKay word for word in concluding that “The police might be required to provide Internet access in these circumstances in order to meet their implementational duty under section 10(b) of the Charter.
In Ontario, similar cases have weighed in on this issue, but with less definitive results. In R. v. Panigas, a 2014 case, the Court found s. 10(b) breach when the police couldn’t find his lawyer online and didn’t let him search himself. However, the Court was also shy in presuming to dictate operational protocols for the police and explicitly stated that a contextual approach is key.
In 2016, R. v. Park, the Court decided that while access to the internet was a viable means for police to meet their implementational duty, there was no positive duty.
Most recently, in 2017, in R v. Paul, the Court explained that detainees have three options;
- Call duty counsel,
- Call a specific lawyer already known, and
- Call “any lawyer”.
This third option can be resolved by permitting the detainee access to a conventional lawyer’s directory or conducting an internet search for a lawyer’s name. By failing to permit the third option in this case, the police officer failed to fulfill the informational requirement imposed on her under section 10(b) and therefore, deprived the detainee of her counsel of choice.
The short answer, is the police have to meet their implementational duty to help you contact duty counsel, a specific lawyer, or any lawyer. However, this duty can be met with or without the internet. While the internet will almost surely meet this 10(b) it is not (yet) a requirement as this duty can be met in other ways.
Perhaps the time has come to challenge this practice and ensure that all Canadians have a true right to select their counsel of choice upon arrest, by whatever reasonable means they prefer.