If the police wish to control the process of contacting counsel, then they must do as much as reasonably possible as the accused himself or herself would do

R. v. Fulford 2014 SKPC 105 – although a decision at the Provincial Court level, I have posted it here due to some of the principles discussed in the case, which could relate to any situation upon arrest and not just the one at hand. This was an impaired driving case involving a breath demand where the court decided grounds existed for an ASD only (I have posted other cases related to this issue of concern prior to this one, so I won’t go into it here).

The main issue discussed involved a breach of Fulford’s s. 10(b) Charter rights. The arresting officer took it upon himself to locate three telephone numbers from the Internet for the accused’s lawyer of choice. Upon calling the first number, the officer received no answer. The second number produced a message from the lawyer’s “assistant” permitting a message option to be left; however, the officer did not leave a message. Inexplicably, the officer did not make the accused aware of the third number, nor even try to call it, because he testified it might have been an incorrect number and he did not want to bother the wrong person at this time of night. The officer then advised the accused that he was not able to get through to his counsel of choice, and the accused provided samples of his breath without obtaining legal advice.

When the accused was asked in his cross-examination why he didn’t try other counsel, he reiterated he wished only to speak to that particular lawyer and that if he could not be reached that evening he would have to try him the next day. Ordinarily, the court said this would be fatal to the accused’s position that his s. 10(b) rights were breached because the obligation would clearly be on him to try alternate counsel if his or her first choice could not be reached. However in this case, the accused could hardly be faulted in retrospect when he had been given misinformation and no reasonable opportunity had been given for his counsel to call back since proper efforts were not made to contact him by the officer.

The judge said that section 10(b) is a cornerstone constitutional right. When an accused is charged with a criminal offence, he or she should have full, fair and unfettered ability to speak to legal counsel of choice. Decisions made at this juncture could have profound long term significant effects on the future of the accused, including considerations of a criminal record, loss of license, impact on family and livelihood, and so forth. If the police wish to control the process of contacting counsel, then they must do as much as reasonably possible as the accused himself or herself would do (see R. v. Brouillette, 2007 SKPC 67 (P.C.)). This would entail making appropriate attempts and providing accurate information back to the accused to effectively exercise this very fundamental right. In effect, the police become the agent or arm of the accused for this purpose.

In order to avoid future difficulties in this regard, the Court made the following suggestions:

  1. give the accused a current year phone book and a reasonable time to peruse same unless of course the individual has a number he or she wishes to call at the outset;
  2. if a list of lawyers is present, then draw such list to the attention of the accused as an additional aid;
  3. if the accused signifies to the police officer that he or she requires assistance to locate counsel, then this should be provided by directing the individual to the yellow pages where the lawyers’ names are contained;
  4. if the policy of the police handling the phone and placing the call is employed, then the call should be made as provided to the officer and the accused should be informed that the number(s) have been called (the judge suggested that the better policy in the Court’s view is to simply allow the accused the opportunity to have the phone book and access to the telephone to dial directly – if the accused chooses to abuse this by calling someone else then clearly that is to their detriment);
  5. if the police locate telephone number(s) by alternate means, such as hereby Internet search, the results should be shown to the accused and all numbers utilized;
  6. if no answer is received and a message option is provided, the message should be left as to the circumstances and request an immediate call back. The accused should then be advised as to what has transpired and precisely what message was left;
  7. a reasonable time should then be given for the lawyer to in fact call back – what is reasonable will obviously vary in the circumstances depending upon time of day, whether it is a weekend et cetera, however the Court would suggest a minimum time of 20 minutes as sufficient for this purpose;
  8. if no call is forthcoming within the prescribed period then the accused should be reminded of his or her options to seek alternate counsel and again be given a reasonable opportunity to do so, if that is the accused’s wish.

The Court mentioned that no formula will fit every circumstance; however, this format in the Court’s view would be a simple common sense approach to reaching counsel of choice.

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