Implementational duty on police pursuant to s. 10(b) of the Charter with respect to internet access considered

R. v. Welty 2014 ABPC 26 – another case out of the Alberta Provincial Court has again considered whether or not the implementation duties of s. 10(b) of the Charter arising from R. v. Bartle, [1994] 3 SCR 173 places an obligation on the police to tell detainees that they have the right to access the internet to facilitate contact with counsel?  For those of you following the blog, the other case in this regard coming out of Alberta was R. v. McKay, 2013 ABPC 13 (that decision was appealed by the Crown, the appeal has been heard, and the decision is on reserve).  The case at hand was another impaired driving case (as was McKay), but I will not go into the facts of the case, but rather focus upon the internet use consideration.

Before I get into the decision, this is a quote from the Judge in this case:

As a trial judge, my function is to adjudicate on the facts of the case before me. As part of that function, I am required to interpret the law and apply it to the facts in the matter before me. In the Provincial Court, any rulings made on the law bind only the parties who are before the Court in the matter being tried. Those rulings may have a persuasive effect in other cases in other Courts, but their ability to influence other Courts is a function solely of the soundness of the reasoning employed in making the ruling. If another judge follows the reasoning of a ruling made in a Provincial Court, it is because the reasoning behind the ruling was found to be compelling, and not because the judge was required by law to follow it.

As part of my duty to interpret the law and apply it in the case at bar, I am required, and have the authority, to determine whether the Charter rights of Mr. Welty were violated, and if so, what remedy, if any, is appropriate. However, if I determine, for example, that the actions of the police officer violated Mr. Welty’s section 10(b) Charter rights, that determination only affects Mr. Welty. It does not mean that, as a matter of law, identical actions taken in some other case by another police officer in respect of an accused in the same position as Mr. Welty must be found to constitute a section 10(b) Charter breach. That will be for determination on another day by the judge hearing that particular matter. Whether that judge reaches the same conclusion which I have reached will entirely be up to that judge at the time he or she hears that case.

The Trial Judge said it is clear that the obligations imposed by section 10(b), including the duties imposed on the police, have evolved since the advent of the Charter. In the early 1990s, significant changes were made to the informational component of section 10(b) in the cases of Brydges, Bartle, and Prosper. When provinces started offering duty counsel and legal aid services, the courts adapted, and held that if such services existed, then the detainee must be informed of them. This was a reasonable change in the law, and one which was a reasonable and logical reflection of the changes in society. The question is whether the role currently played by the Internet in the life of those living in Canada is such that it requires specific recognition in the jurisprudence defining the scope of section 10(b) of the Charter.

The Judge said in relation to the specific information given about the resources which will be made available to arrestee/detainee, the Courts in Alberta have required the police to tell an arrestee/detainee that he or she will have access to a
telephone and telephone directories, and access to Legal Aid duty counsel. Arrestees/detainees have historically been told that they will have access to
telephones and telephone directories because those items have been the usual
resources used by people when they are trying to find a service and an immediate
method of contacting that service. Resort to the Internet’s World Wide Web is at least as important a resource as telephone directories for those seeking information about services and seeking contact with them according to the Judge. Since a section 10(b) Charter violation will usually be found if a arrestee/detainee is prevented from using his or her cellular telephone as he or she exercises the rights guaranteed by section 10(b) of the Charter, the Judge said it follows that one must consider whether it is necessary that a reference to accessing that resource be included in the informational component of the duty imposed on the police by section 10(b).

Accordingly, the Judge was satisfied that an arrestee/detainee who wishes to use his or her cellular telephone (or similar electronic device which has independent
access to the Internet) for the purpose of facilitating his or her exercise of his or her section 10(b) Charter rights should be permitted to do so. If the police were to prohibit such a use, absent urgent and compelling reason, then in the judge’s view, there would be a prima facie violation of the person’s section 10(b) Charter rights. It was shown from the cases discussed, and indeed it was stated by the officer in the case at bar, that most police officers do not prevent an arrestee/detainee from using his or her cellular telephone in the exercise of section 10(b) rights.

Consequently, the Judge said not telling an arrestee/detainee that he or she may have access to his or her cellular telephone or other electronic device sends the erroneous message that access to those resources is unavailable. It is not sufficient, for the purposes of ensuring effective access to a fundamental Charter right, to rely on individuals being bold enough to make inquiries as to whether they may use their cellular telephones or electronic devices. The informational component of section 10(b) should be expanded to include advice to the arrestee/detainee that if he or she has with him or her a cellular telephone or other electronic device which is independently capable of accessing the internet (i.e., can connect to the internet without using some other person’s internet access), the arrestee/detainee may use that device and access the internet for the purpose of exercising his or her right to consult with legal counsel.

The following is an example of how that information could be incorporated into
the currently used section 10(b) advice according to the Judge (bearing in mind the Charter warning currently given in Alberta):

You have the right to retain and instruct a lawyer without delay. This means that before we proceed with our investigation you may call any lawyer you wish or a lawyer from a free legal advice service immediately. If you want to call a lawyer from a free legal advice service, we will provide you with a telephone, and you can call a toll-free number for immediate legal advice. If you wish to contact any other lawyer, a telephone and telephone book will be provided to you. If you have a personal cell phone or electronic device you may use it to contact any lawyer. If your cell phone or electronic device allows you to access the internet, you may use it to access the internet to search for, and contact a lawyer. If you are charged with an offence, you may apply to Legal Aid for assistance.

The Judge said there is currently no binding authority that requires the police to provide to detainees access to the internet in order for the implementational component of section 10(b) to be satisfied. Section 10(b) does not impose a positive constitutional obligation on governments to ensure that detainees have access to free summary legal advice. Nor does it impose on governments a substantive obligation to ensure that duty counsel is available to detainees. By extension, said the Judge, it might be inferred that section 10(b) also does not require that governments provide free internet service to detainees at police detachments/stations.

In this case, the Judge ruled that the implementational duty imposed on the police by section 10(b) of the Charter should be expanded to require the police to provide an arrestee/detainee with the means of accessing the Internet (i.e., the provision of a device which was connected to the Internet). This is a trend which will continue and progressive police forces will endeavour to be ahead of this curve (as cited from R. v. Cornish, 2013 ABPC, at paragraph 10, in this case).

On a finishing note, the Trial Judge ruled that the admission of the Certificate of Analysis as evidence in the trial would not bring the administration of justice into disrepute and the Certificate was admitted into the trial.  The Judge said there is currently no case law explaining to the officer that he was required to provide to the accused the information that he would be able to use his cellular telephone to access the Internet, so the breach was committed in good faith and the Charter-infringing conduct was not serious. “[S]uch a sweeping change in policy should, in my respectful submission, come from a superior court.” (as cited from R. v. Franczak, 2013 ABPC 226).

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