R. v. McKay 2014 ABQB 70 – for those of you following the internet access dilemma as part of s. 10(b) of the Charter that is happening in Alberta, the ABQB has ruled that s. 10(b) of Charter does not require, as a matter of law, that police provide internet access to arrested drinking drivers. The ABQB said the court essentially agreed with the sentiments expressed by the Trial Judge in R. v. McKay 2013 ABPC 13 that it is time for the police to modify their procedures; however, the facts of this case did not, in the court’s view, justify the Court expanding the duties of the police in the manner chosen by the Trial Judge.
Mr. Justice S.J. LoVecchio said “it is not for lower court judges to “reassess social and technical conditions and change the law accordingly” in the face of binding precedent. By purporting to expand the resources police must provide to all detainees, absent a sufficient factual basis for doing so, the Trial Judge committed a reversible error.”
Further, Justice S.J. LoVecchio of the ABQB said:
In conclusion, I agree with the Trial Judge that it is time for the police to adjust their practices in accordance with changes to the way Canadians access information; however, this case lacks an adequate factual foundation to expand the duties of the police under section 10(b) in this manner. … Section 10(b) must develop to reflect the realities of modern life. In the 21st Century, this includes the Internet.”
In this case, Mr. McKay never requested Internet access, nor did he express to the officer any difficulties contacting counsel with the resources that were provided to him. Instead, Mr. McKay spoke with Legal Aid and informed the officer when he was finished. The officer was therefore entitled to assume Mr. McKay received satisfactory legal advice. Mr. McKay’s ignorance regarding 411 and his preference to use the Internet did not, without more said the ABQB, establish that Mr. McKay was deprived of a reasonable opportunity to contact counsel in this case.