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News and Views — Segal's Motor Vehicle and Impaired Driving Newsletter

Must detainees be given Internet access to facilitate the right to counsel?

 

BY: MURRAY D. SEGAL


See the CriminalSource Advantage for yourself

 

Whether detainees required to be given Internet access to facilitate the right to counsel; While Internet access as found by trial judge was the future, no breach of right to counsel here; Appeal allowed; Criminal Code, ss. 253, 254; Charter of Rights, ss. 10(b), 24(2).


R. v. McKay, 2014 CarswellAlta 212 (Alta. Q.B.), 
LoVecchio J. reversing 2013 CarswellAlta 102, (Alta. Prov. Ct.): 

The respondent was stopped for drinking and driving. He was 19. He was provided with a telephone at the detachment. Mounted on the wall was a telephone number. He called the number but was not satisfied with the advice received. He did not express dissatisfaction with the advice received to the police, nor did he ask to make another telephone call. He thought he only had one phone call. He was familiar with the yellow pages. He thought the officer was trying to help. His usual mode of inquiry was to use the Internet, specifically Google. The trial judge found that there was a need in today's world to provide Internet access. A breach of s. 10(b) was found, the evidence excluded and an acquittal resulted.
On summary conviction appeal, the Crown appeal was allowed. The respondent never requested Internet access nor complained about the advice to the police. He had used the yellow pages on earlier occasions. The police did what was required. The trial judge erred in concluding that the police are now required to provide detainees with the same opportunities to access the Internet to find a lawyer as they do to access the telephone book to find a lawyer. But the sentiments of the trial judge regarding the need for reasonable opportunity to contact counsel to develop in accordance with the societal changes were agreed with. The Internet has revolutionized the way information is accessed and that change must be accounted for in the development of constitutional rights, including a possible expansion of the informational component. Police should take a proactive approach.
Here, there was a reasonable opportunity to contact counsel. The evidence ought not to have been excluded. The appeal was allowed.

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