Right to Counsel of Choice

It seems most case law as of late is in regards to s. 10(b) of the Charter, or the implementational facet of the right. This latest post is out of a Provincial Court, so although it has no binding authority, it discussed an important principle for us to keep in mind.

R. v. Lafrance 2015 SKPC 13 – Lafrance was arrested on a Saturday night, just after 10 PM, for driving while his ability to do so was impaired by alcohol. First, Lafrance contacted a private lawyer, received a recorded message saying the office was closed, so he left a message. Lafrance next asked to call another private lawyer, so an officer called on his behalf, and  received no answer. Next, Lafrance called a law office and received a live operator for an answering service who asked him to hold while she attempted to contact a lawyer; he did so. An officer observed Lafrance through the window and could see that or thought that he was on hold because he was not talking. Eventually, after an undefined length of time, but not more than 23 minutes, the officer entered the room and checked the phone. He thought it was dead and hung it up. The officer believed that Lafrance was not exercising rights and was stalling the investigation and process for obtaining samples within the legislated time frame.

The officer testified that he didn’t know if the answering service had connected Lafrance and he had a brief conversation or not; the officer didn’t see that happen. However, the officer wanted to ensure that Lafrance talked to an open law office and suggested to him it was in his best interest to at least talk to a Legal Aid lawyer to ensure he had that opportunity to exercise his Charter rights. The officer then dialed the number for Legal Aid duty counsel and passed the phone to Lafrance, who spoke to counsel. Following that, he gave two breath samples.

Lafrance testified that he knew other lawyers he would have tried to call, but the officer said they needed to hurry and said words he understood to mean that if he didn’t reach counsel soon, he would be “charged” with refusing the breathalyzer or refusing to exercise his right to counsel. Lafrance said that when the officer dialed Legal Aid, he yelled to him: “Pick up the phone! Pick up the phone!” So he did. He said he felt “pushed and guided” and that he had no choice but to talk to Legal Aid counsel. Provincial Court Judge B.J. Tomkins accepted that evidence.

Judge Tomkins said:

The implementation component requires the police to do two things: first, they must give the accused person a reasonable opportunity to consult counsel and, second, they must defer attempts to gather evidence until the accused has had a reasonable opportunity to exercise his or her right.

The right to counsel of choice is an integral part of the right...

Thus, police are not allowed to choose a lawyer for a person who is detained, nor are police allowed to direct or “stream” someone to Legal Aid in lieu of counsel of choice.”

The Judge said that the implementation component of the right must be meaningful. That is, it cannot be enough to place a call to an office that you are virtually certain will not be open and where the accused is unlikely to reach counsel. According to Judge Tomkins, that would be little better than making no call at all as it does not meaningfully afford an accused person a reasonable opportunity to consult counsel. Calls to Lafrance’s counsel of choice were made to those lawyers’ offices after 10:00 PM on a Saturday night. Not surprisingly, said the Judge, each call resulted in a message informing that the office was closed and invited callers to leave a message. Given the day and time, common sense suggested that the chance of a lawyer from the firm retrieving and returning the message within a reasonable time were negligible.

Judge Tomkins felt that none of the officers involved took any steps to obtain meaningful contact information for the lawyers Lafrance wished to consult and telephone calls to offices which one would expect to be closed cannot meet the officers’ implementation obligation. When the officer checked and thought the phone was dead following the call to the law office, this was because he did not hear music or any other sound suggesting the call was on hold. However, he also did not hear a dial tone. As such, in Judge Tomkins’ view, the officer did not know if the call had been disconnected or not. Given this, it might be expected that the officer would place a second call to the service to confirm that the call had been disconnected or, maybe, to learn that the call had remained alive until he hung it up. This is common practice in most other circumstances where a person believes a telephone call has been disconnected, according to the Judge, so Judge Tomkins could not see any reason why this would not be a reasonable expectation in this case.

The officers actions were seen to go well beyond reminding Lafrance of the availability of Legal Aid. He hung up a call which he believed – but did not know – had been disconnected, dialed Legal Aid and instructed Lafrance to pick up the phone. Judge Tomkins noted that there was no urgency in the situation. The call to Legal Aid was placed at about 11:00 PM, almost an hour before the window of time for taking the breathalyzer tests would close for the presumption. The Judge was also mindful that Lafrance did not directly ask for access to the white pages of the phone book, nor did he ask the officer to consult them. However, once the police officers take responsibility for implementing the accused’s counsel rights, they take on the obligation to take such steps as a reasonably diligent accused person would be expected to take.

Judge Tomkins said the officer did not consult the white pages to learn if either private lawyer had residential numbers listed. He did not consult computer resources to see if either had a reachable number listed. He did not call back to the Merchant Law Group Service to learn whether or not the call had been cut off and if so, to reinstate the request to seek counsel. All of these are reasonable expectations in an attempt to actually connect a person to counsel and neither would have taken very much time. Instead, their efforts were likely doomed even before the counsel calls were made and the officer knew that.

Following the Grant analysis, the Certificate of Qualified Technician was not admitted as evidence in the trial of these charges.

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Filed under Recent Case Law, Section 10 Charter

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