R. v. MacKay 2013 ABPC 13 – An Alberta Provincial Court Judge has ruled 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 male was 19 years old at the time of the offence of impaired driving. The Trial Judge found no issue with the ASD demand and results, nor with the subsequent arrest for impaired driving. Upon arrival at the Calgary Police station, the accused’s cell phone was placed in the police locker along with his other personal belongings. He testified that he was taken to a phone number which was mounted on the wall by telephones and he utilized that telephone number. He testified that he used that telephone number when the officer told him that there was a number to call for free legal advice.
The accused testified that to his recollection, he did not see telephone books and that he did not recall the officer pointing out telephone books to him. However, he did testify that after he dialled the toll free number and was placed inside a holding cell to talk the person on the telephone, he did notice a set of “phone books on the floor”. The accused also testified that he usually uses Google to access any information that he needs. He was asked by his lawyer if he understood what 411 was. He testified that he did not know what 411 was at the time and that he would not have considered “411 a viable search engine”. He testified that he was certainly interested in obtaining legal advice at the time and that he would access Google to search out appropriate legal advice. He also testified that at the time of his arrest, he believed that he had the right to only one telephone call and that once he had used up that telephone call, his rights were exhausted. He testified that the call that he made using the toll free number did not give him anymore information than he already had received from the arresting officer. He testified that the telephone call was abrupt and it appeared that the person on the other end of the telephone did not want to talk to him. The accused was asked about his level of satisfaction with his toll free telephone call and he replied, “no satisfaction at all”. The accused reiterated that at the time, he thought he could only have one telephone call and that his understanding arose from pop culture and Hollywood movies. In examination in chief, the accused conceded that he did not tell the arresting officer that he wasn’t satisfied with his telephone information and he reiterated that he did not know that he had any rights to further opportunities to get legal advice at the time.
The key issue for consideration in this case was whether internet access should form part of police resources provided to detainees in order to facilitate a reasonable opportunity to exercise the constitutional right to counsel. The Trial Judge stated that 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, the judge said, Google seeks as one of its missions to become the source of original information for the world.
A search of Google in five seconds or less can give an accused person with access to the internet the names of experienced top criminal defence lawyers including addresses, telephone numbers, email addresses, and other educational information concerning the services they provide. The judge went on to say that information on Google may be more current and more detailed than a name and a phone number in the Yellow Pages, the White Pages, 411 or the toll free number. The Court noted that police are routinely accessing the internet in order to investigate crime and to assist them in gathering evidence and data in the course and scope of their employment. It is now time for police to provide to accused persons access to the internet at the same time as they provide access to 411 and paper phone books. The Judge ruled that every police station should have access to the internet so that accused’ persons can go to the internet to access the names of lawyers that they require. This information in the virtual world must be provided concurrent with information in the real world, such as the Yellow Pages, White Pages, and 411. There are sufficient numbers of individuals born post computer age who have no understanding of the paper world who have extensive knowledge and understanding of the virtual world. These individuals must be accommodated and the only way to do that is to ensure that detainees under arrest be given the opportunity to use the internet to call a lawyer in the same way that they can use a telephone book to call a lawyer.
In reaching the decision, the judge referred to R. v. Bartle 1994 SCC 74, which ruled that 10(b) of the Charter impresses both informational and
implementational duties on police who arrest or detain an individual. The informational duty was satisfied in this case. The implementational is indeed two fold as the Crown indicated in its excellent written Brief. The first implementational duty is “to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstance)”. The second implementational duty is to “refrain from eliciting from the detainee until he or she has had a reasonable opportunity (again except in cases of urgency or danger). In this case, the Court concluded that the Crown had not met the onus of proof that lied upon it with respect to the first implementational duty on the part of police. The accused was not given a reasonable opportunity to exercise his right to access a lawyer, by failure of the police to provide concurrent access to the internet along with 411, the toll free number and the paper telephone directory. In the year 2013, it was the Court’s view that all police stations must be equipped with internet access and detainees must have the same opportunities to access the internet to find a lawyer as they do to access the telephone book to find a lawyer. Accordingly, a s. 10(b) Charter breach was established.