The world of Law Enforcement just took a giant leap in evolution.
Judge H. A. Lamoureux of the Provincial Court of Alberta recently considered a case revolving around an accused persons right to access the internet to facilitate their constitutional right to be provided a reasonable opportunity to contact counsel.
The case centered on Christopher Scott McKay-19 yrs, who faced prosecution for driving while impaired and drive over .08 after being stopped by Police for driving through a red light on August 22, 2011. It seems that Mckay was afforded the usual rights provided to detainees;
- He was provided a phone number to call Legal Aid
- He was provided information to call 411 if he so chose
- He was provided with the White & Yellow pages to select his counsel of choice
- He was provided with a telephone and privacy to make his call
After calling the toll free number, Mckay was asked if he spoke to someone and he indicated “Yes.”
McKay did not ask to access the internet.
(It should be noted that the arresting officer testified that the Police did not have the ability to offer the accused access to the internet in a secure location.
McKay subsequently provided samples of his breath which were found to exceed the legal limit.
The accused testified on his own behalf. During his testimony McKay indicated that he usually uses Google to access information that he needs and indicated that he did not know what 411 was the time and would not have considered it a “viable search engine.”
McKay testified that he was under the belief that he was only allowed one telephone call and that the call he placed was inadequate as the person he spoke to seemed disinterested and offered him little in the way of advice. He indicated that his understanding of the limitation of only one call to counsel came from pop culture and Hollywood movies. McKay admitted that he did not tell the arresting officer that he was not satisfied with his call to counsel.
In cross examination Mr. McKay conceded that he had consumed five bottles of beer between 7:00 pm and 11:30 pm on the night in question immediately prior to his arrest and he conceded that he lied to the officer about alcohol consumption because he, “didn’t want to get in trouble”.
In rendering her decision Judge Lamoureux arrived at the following conclusions;
“So what happens when a 19 year old is arrested and has never faced the prospect of trying to get legal advice before providing potentially incriminating evidence to a police officer? This Court takes judicial notice that the average 19 year old will look to the internet for information to get legal advice before checking White Pages, Yellow Pages or 411. In fact the accused himself has testified that he did not at the material time, even know what 411 was. In a statement of deep ignorance, the accused says under oath that he would not have considered “411 a viable search engine.”
“Every police station should have access to the internet so that accused’ persons can go to the internet to access the names of lawyers that they require. This information in the virtual world must be provided concurrent with information in the real world, such as the Yellow Pages, White Pages, and 411. There are sufficient numbers of individuals born post computer age who have no understanding of the paper world who have extensive knowledge and understanding of the virtual world. These individuals must be accommodated and the only way to do that is to ensure that detainees under arrest be given the opportunity to use the internet to call a lawyer in the same way that they can use a telephone book to call a lawyer.”
“The question is whether access to 411, White and Yellow Pages and the toll free number amounted to a reasonable opportunity. The question is to what is a reasonable opportunity is contextual and fact specific. The Crown says that the police do not have any duty in law to provide access to the internet for detainees when there is no specific request to access the internet. The Court disagrees. In particular case, the accused was actually directed to use the toll free number and he did so in ignorance of the potential to use other resources with which he might have been more familiar. In the Court’s view, in the year 2013 police providing access to the internet is part of a detainee’s reasonable opportunity to contact legal counsel. This is so even whether counsel of choice is not an issue and the accused is simply seeking general information from a source such as Google. ”
“In this case, the Court concludes that the Crown has not met the onus of proof that lies upon it with respect to the first implementational duty on the part of police. The accused was not given a reasonable opportunity to exercise his right to access a lawyer, by failure of the police to provide concurrent access to the internet along with 411, the toll free number and the paper telephone directory. 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.”
In paragraph 22 the Judge indicates that the accused right to counsel was breached.
It appears that the case is still before the Courts so it’s difficult to predict what impact the “breach” will have on the outcome of the trial.
Some might suggest that the Judge is a forward thinker and this case represents the natural evolution of the cyber age. I beg to differ.
It seems to me that this decision is just another pitiful example of an offender driven Canadian Justice System void of common sense and sensibility. The Judge in this case had options.
Option #1: Hold Offender Accountable
Judge Lamoureux completely ignores McKays responsibility to advise the arresting officer of his dissatisfaction regarding his call to counsel. The arresting officer is not a mind reader, in fact, calls are made to counsel in private for a reason. All conversations with legal counsel are considered to be private and must be respected as such. Police Officers are now expected to ask accused persons if they are satisfied with the advice defense attorneys give them. This seems to me to be somewhat of a slippery slope. What happens when a Police Officer asks the question and the accused person divulges details of the private discussion. Is this not grounds for a potential violation of the Charter Right to consult with counsel in private.
Option #2: Hold Offender Accountable
Judge Lamoureux completely ignores McKays responsibility to ask the arresting officer to use Google if that’s what he really wanted to do. The Judge is clearly blind to the fact that the entire defense is a completely contrived attempt to avoid a conviction and exploit the advancement of technology. The Judge should have been offended by this transparent attempt to avoid justice.
Option #3: Hold Offender Accountable
What Judge Lamoureux forgets is the fact that Impaired Drivers kill people every day in this Country. The need to protect the public and hold them accountable for their dangerous criminal behavior should outweigh the need to protect an accused persons rights. Especially when the right she is protecting is a right that has never been established in a Court of Law. It seems to me that Judge Lamoureux has confused her role with the role of Parliament.
Option #4: Don’t Change the Rules After the Games Been Played
In rendering this decision, Judge Lamoureux is holding Law Enforcement up to a standard in law that has never been established. Judge’s should not have the power and authority to change the rules of a game after it’s been played. I experienced this process first hand when Manitoba Judges started to exclude suspect confessions that had not been video taped. This was another advancement of technology that significantly changed the way Police conducted investigations. Suspect confessions to serious offences were excluded because the Police did not video tape the interrogation, regardless of the fact investigators simply did’t have the equipment or infrastructure available to provide such recordings.
Option #5: Be Catalysts for Change
It’s my respectful opinion that Judges should not have the power and ability to impact Law Enforcement in such a significant way. Judge Lamoureux had the option of putting her concerns on the record and sending a message to the Crown and Police. Unfortunately, she decided to make change rather than be a catalyst for change. I strongly suggest that significant changes in policy and the administration of Law Enforcement such as this should only be made in consultation with representatives from the Attorney Generals Office, Manitoba Justice and the Police Community. Is it not in the public interest to allow Law Enforcement the ability to evolve and grow rather than be forced to adhere to standards before they even have the ability or infrastructure to adapt to the standard?
To be clear, I don’t necessarily take issue with the evolution of the right to counsel to include access to the internet.
I do take issue with the Judiciary changing the Law Enforcement landscape from the bully pulpit.
Police Officers take heed, the winds of change are blowing once again.
It won’t be long before every interrogation room is equipped with an IPad, tablet or Macbook Pro…..and people wonder why the costs of Policing continues to skyrocket.
Have a differing opinion…..I want to hear it!