Police Are Not Required To Advise Detainee of Right To Search For A Particular Lawyer

Thursday, June 25, 2020

Cory Wilson is a criminal lawyer, serving Calgary, Okotoks, Airdrie, Canmore, Strathmore, Didsbury, Cochrane, Lethbridge and Medicine Hat.

Police Are Not Required To Advise Detainee of Right To Search For A Particular Lawyer

In a recent provincial court case, a man was pulled over for speeding in the early morning hours. After a brief conversation with police, the officer asked the driver to exit the vehicle so they could continue to speak on the side of the road (in my view, there was no need for the driver to exit the vehicle and this was a section 9 Charter violation). After exiting the vehicle, the driver admitted to consuming alcohol. As a result of the admission, the officer made an Approved Screening Device demand to test the sobriety of the driver. The driver blew a Fail and was arrested for impaired driving.

The officer cautioned and Chartered the driver and asked if he wanted to contact a free lawyer or his lawyer of choice. The driver replied “No sir, I don’t know anyone right now”. He was then transported to the police station to provide samples of breath.

At the police station, the driver was once again asked if he wanted to call a lawyer and again he said he did not have a lawyer. The officer then asked if he wanted to call duty counsel and the driver agreed to do so. After speaking with duty counsel, the driver didn’t express any concern with the duty counsel and proceeded to provide two samples of breath over the legal limit. He was charged with impaired driving and driving over 0.08 and released.

At trial, the driver argued that his section 8, 9, 10(a) and 10(b) rights were breached by the police officer. The trial judge dismissed all of the Charter applications and convicted the driver.

Section 10(a) Argument

The 10(a) argument was based on the argument that the police officer failed to inform the driver immediately that he was pulled over for speeding. However, the trial judge held that the exact wording is not required, but a prompt conveyance of the substance of the reason for detention. In this case, the officer asked for the driver’s identification prior to informing him of the reason for speeding. The judge found that this was not fatal to the prosecution.

Section 8 Argument

The section 8 Charter argument related to the sufficiency of the reasonable suspicion for the Approved Screening Device Demand. The officer testified that he administered the ASD because the driver “might have alcohol in his body”. The judge found that the officer did not have to articulate the grounds as long as there were objective grounds. However, in this writer’s opinion, the trial judge erred because an important aspect of the demand is whether the officer had subjective grounds to read the demand. In this case, the officer clearly indicated that he did not.

Section 9 Argument

The section 9 Charter argument was with respect to placing the driver in cells for 10 minutes. There was no basis for this argument and the judge properly dismissed this.

Right to Counsel Argument

The last Charter argument was with respect to the driver’s right to counsel of choice. Defence argued that when the driver stated that he did not know a lawyer, the officer had an obligation to help him find a lawyer rather than funneling him to duty counsel. There are certain fact patterns in which an officer has a heightened obligation to go further and assist a detainee. Based on this fact pattern, there was no reason for the officer to provide any further assistance. It is a much different scenario when the detainee indicates that he or she has a lawyer, but doesn’t know their number. At that point, the officer has an obligation to assist in finding that lawyer’s number.

Police are not required as a matter of constitutional standard, to advise detainees of their right to search for a private lawyer’s number. However, this has to be looked at in context. If a detainee indicates they want to search for a private lawyer, a phone book or more often, their cell phone must be provided. A detainee cannot simply be funneled to duty counsel but a police officer has no obligation to provide more information about right to counsel, unless the detainee is confused or asks. Of course, every case turns on its own facts.

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.