But I’m Waiting for My Lawyer to Call Back!

Police are required to provide a reasonable opportunity to access counsel of choice, but do not have to exhaust all available means to facilitate contact. 

There has been significant debate in Provincial Court over the extent of police obligations to facilitate access to counsel. There is no set rule for what police must do and as with so much in criminal law, the factual matrix will determine the reasonableness of steps taken.

Factors such as time of day, duration of detention, nature of the investigation and the assertions or requests of the detainee may all influence what is reasonable in each case.  

The standard to apply in a right to counsel comes from the Supreme Court of Canada case in Taylor and is whether police took reasonable steps to provide a reasonable opportunity, in all of the circumstances.

Each case is fact specific. For instance, if a detainee only provides a lawyer’s name to police, police are obligated to look for a contact number. If a phone number is provided, calls to that number must be made. 

While there is no constitutional requirement to allow a detainee to use his or her own cell phone as opposed to the police phone, most lower courts have concluded that we live in a time in which our whole life is contained within our cell phones. As long as there is no safety issue, a detainee should be provided with his or her cell phone to find a number and even use their cell to make the call. 

Police do not have to exhaust every possible means to contact a detainee’s counsel of choice, but falling short of trying a number of options may give rise to a Charter argument at trial. Police are not required to take every possible step that a detainee may have taken and for a court to engage in what a detainee may have done in the circumstances would require speculative hindsight. 

The issue of what steps police must take in facilitating access to counsel general arises out of late-night arrests. It is a rarity that private counsel answer calls after midnight and even more rare that counsel, who is likely sleeping, receive the voice message and quickly call back. For that reason, it is rare that police will give unlimited time for a detainee to wait for their lawyer to call back. Generally, the issue is whether or not police took the required steps to allow for the call and then a reasonable time to wait for a return call. Once those steps have been taken, police must not simply tell a detainee to call Duty Counsel, but provide all options.  

Cory Wilson is a criminal defence lawyer based in Calgary. If you have been charged with a criminal offence or are a suspect in a criminal investigation, call today for a free, no obligation consultation.