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One Phone Call is Not Enough: Court Rules You Have the Right to Google a Lawyer

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Tuesday February 19, 2013
Hollywood crime dramas are infamous for the scene when an accused is taken to a local police station and permitted a single phone call to contact a relative or lawyer. While the storyline is myth - there is no limit on the number of phone calls available to an accused or detainee - a recent Alberta case established a new, real requirement for law enforcement. After a 19-year old struggled to find a lawyer using the telephone, the court ruled that police must provide an accused with Internet access in order to exercise their right to counsel.

Christopher McKay, who faced a driving while under the influence charge, told police that he wanted to exercise his right to legal counsel. McKay’s cellphone and other personal belongings were placed in a police locker when he arrived at the station. McKay was told there was a toll-free number available to contact a lawyer as well as White and Yellow pages that could be consulted. He called the toll-free number but was unable to find assistance.

My weekly technology law column (Toronto Star version, homepage version) notes that what followed was the product of a demographic deeply familiar Hollywood movies and reliant on the Internet. McKay assumed that he had used his single phone call and did not consider using directory assistance (411), which he did not think was a "viable search engine." Instead, he noted that Google was his main method to search for information.


Judge Heather Lamoureux of the Provincial Court of Alberta considered "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." After acknowledging that many teenagers view their smartphone, iPad and other devices as essential parts of their daily lives, she noted that Google is the primary source of information for everything from maps to medical care to access to lawyers.

In fact, the judge conducted a Google search for "Calgary criminal defence lawyer" and found that within seconds there was provided with a long list of potential local lawyers. Moreover, the judge noted that police routinely use the Internet for investigations and evidence gathering.

The Charter of Rights and Freedoms grants anyone arrested or detained the right "to retain and instruct counsel without delay and to be informed of that right." For this judge, the failure to provide Internet access meant that the Charter rights had been violated, concluding:

"In the year 2013 it is 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."

The decision will undoubtedly raise eyebrows among criminal lawyers and law enforcement officials, yet it continues a growing trend around the world that elevates Internet access to a quasi-legal right. In 2010, Finland became the first country in the world to make broadband Internet access a legal right for all citizens. A year later, a United Nations report concluded that disconnecting people from the Internet is a human rights violation.

For police, the decision may have resource implications, since providing Internet access will be more costly and cumbersome than pointing to a nearby telephone. It also points to how the Internet and new technologies force the continued rethinking of longstanding rules and practices as even Hollywood films may someday feature police directing an accused to an Internet-connected computer in order to exercise their right to counsel.

Comments (17)add comment

pat donovan said:

off topic comment
You've been able to replace judges with PCs (and some software) with 96% accuracy since about '85.

It's about time they discovered the telephone, cell,
beeper, CB and other forms of communication.

NOTE:

http://www.surveymonkey.com/s/7CZTJ8B

an international harmonization? Obama setting up a fluff-guard or real (There's LOTS to harmonize. Ask any trader/convenencing agent about forbidden items.)

pat
February 19, 2013

Matthew said:

Does that include advicescene?
I wonder if this would include going back and forth on http://legal.advicescene.com/ca for obtaining legal "advice"?
February 19, 2013

Chris Brand said:

Now what we need
is recognition that this also means that governments shouldn't be messing with filtering what we can and can't get to online.
February 19, 2013

time_warp said:

Corruption
I was told I could not possess a computer or cellular device for 5 months while I was simultaneously suing 3 different organizations. Tell me, how does this ruling effect me?
February 19, 2013

time_warp said:

...
Ruling only effects DUI cases. It's a step but nothing concrete yet.
February 19, 2013

Ray Saintonge said:

...
It's hard to imagine that a half-drunk teenager would know who to call for legal help at 2:00 a.m.

February 19, 2013

Scott said:

google/police
seems to me that a teenager would be more familiar with google than anything else. makes total sense to me.
February 19, 2013

FuzzPot said:

A Good Step
A good step in the right direction, in a facet of life that is excessively slow to progress with technology.

One thing though: how will this cause resource strain? What police station wouldn't have internet access these days?

Also,time_warp, that seems incredulous to me. I'm extremely curious what that's all about.
February 19, 2013

Ubique said:

...
It's a bad decision, and seems unlikely to stand up to appeal. It is also an Alberta Provincial Court decision, and not binding on other courts. It will likely lead to a number of unsuccessful charter arguments at criminal trials, which will make a lot of extra money for defense counsel, but I doubt that there will be any substantial change in police procedure unless this is confirmed at the appellate level (at least.).

The recent Saskatchewan Provincial decision which found that failing to add colons to the 24 hour time recorded on a Certificate of Analysis was a fatal error also made no difference to operational police procedure, and when it falls to appeal, not much will have changed.

There are some misleading elements in your article. You state that "He called the toll-free number but was unable to find assistance.", but what he actually said, according to the decision was that the person he called (presumably legal aid duty counsel) was 'abrupt', and 'did not give him anymore information than he already had received from the arresting officer'. He apparently spoke with duty counsel for approximately five minutes.

I'm not sure if you've ever practiced criminal law, but the actual advice provided to arrested persons in impaired cases rarely takes longer than three minutes. From what people have told me, it usually amounts to "blow when and where they tell you, don't play games. Do not provide any statements" Given that a young person accused of impaired driving for the first time probably wants to hear how their lawyer is going to make the police let them go and not charge them, its unsurprising that the Accused would have been unsatisfied with the advice. The Accused was also not diligent in exercising his 10(b) rights, he never asked for another call, nor asked for more resources to seek counsel. The Accused apparently knew what phone books were, but chose not to consult them either.

Asking the police to equip every counsel-call room with an internet PC is asking for a whole lot of new case law. We are going to need direction on what sort of resources the in-custody persons can access: can they use the internet to seek a forum or community post that provides 'legal advice', thinking it will be cheaper than a lawyer? What if it is bad advice? What if they decide to use the connection to the internet to contact criminal associates "Hide the dope, they're coming with a warrant!", or to send commands remotely to a computer "Wipe out the porn archive!", or a person under arrest for harassment may take the last opportunity to send yet another threatening message to his victim.

Should the police be permitted to monitor the computer use of an arrested person seeking counsel? What if the search terms used are revealing (person in custody for impaired driving searching for "cocaine lawyer calgary", for example) of a person's true fears of what the police might discover? Most Canadian police forces do not allow a detained person to make outgoing calls, the usual practice is for the officer to call the lawyer's office or personal number, find out who they are speaking to, confirm that they are a lawyer and then pass the phone (or transfer the call) to the person. If the lawyer is not answering directly, the officer will leave a number for call-back, which may or may not be answered directly by the detainee. The inherently two-way nature of internet communications will pose a large number of problems for any police force required to provide internet access to detained persons seeking counsel.

February 20, 2013

Ki said:

...
Welcome to the future, where half the phones run on the Internet now anyway.
February 20, 2013

Jessie said:

Half?
I'm sure it's more than half the phones.
February 21, 2013

Barebones said:

Windows MAC Support
I don't think anybody supports or like the way an teenager did his bit.


Windows MAC Support
February 21, 2013

Mark robins said:

Lawyerlocate.ca
Or simply use Lawyerlocate.ca we have handled over 150K referrals in the past 10 years.
February 21, 2013

sojib said:

hidxnon
I was told that he could not have a computer or mobile device for 5 months, while I was doing because at the same time three different organizations. Tell me, how does this effect my judgment?
February 23, 2013

ip cop said:

...
this is ridiculous, can he read the phone book? Also the police and all provinces use a legal aid number that will have a lawyer call you back...and someone asked how this would hinder police resources...how many minutes are you going to let each person arrested in the middle of the night browse the internet Searching for the lawyers who want to be contacted at 3 in the morning? prisoner are given a legal aid number that gives them the on call lawyer who will give them legal advice. If a prisoner asked for a specific number for a lawyer, the police will search if for them to ensure a legal arrest...
February 23, 2013

LawBot.net said:

This may be the way of the Future
If it holds up under Appeals, this may be a feasible way for Defendants to locate and contact the most qualified Attorney. Something to consider. We will follow this and may place it on http://LawBot.net

February 25, 2013

david said:

It indicates the future
If you want to recover the lost data of your phone, you can try WiseRecovery.
wiserecovery
March 08, 2013

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