Who You Gonna Call? The Right To Call A Lawyer Of Your Own Choosing

Posted by  on September 30, 2016
Who You Gonna Call? The Right To Call A Lawyer Of Your Own Choosing

It’s the middle of the night and you are under arrest at the police station. You know the name of a lawyer, and you would like to call her instead of the legal aid lawyer (duty counsel) that the police are suggesting. How can you find out the number for the lawyer?

The bottom line is that you have the right to contact the lawyer of your choice, and the police are obliged to help you to do that. And until reasonable efforts are made to put you in touch with your chosen lawyer, the police have to refrain from questioning you or seeking evidence from you, such as a breath or blood sample.

Nowadays, everyone stores their contacts in their cellphone. Nobody memorizes telephone numbers anymore, especially for numbers they do not call often, like a lawyer. Unfortunately, the police often refuse to permit a detainee in their custody from accessing their phone to retrieve a lawyer’s number. We often tell clients who are worried about an imminent arrest to keep our number in their wallet for just this reason.

A court in Ontario has stated, in a case called Maciel, that the police cannot prevent a detainee from accessing his lawyer’s number. Not only that, but they are obliged to actively try to facilitate that contact, and to take certain specific steps to do that.

Maciel is another in a series of cases in which the courts in this country, including the Supreme Court of Canada, have started to rank the importance of Charter rights. For many years, it was believed that all Charter rights were equal. Now, the courts are finding that some rights take precedence, and are more deserving of protection than others. The most fundamental of these is the right to counsel. If the police search you unreasonably, or detain you arbitrarily, the courts will often look the other way or excuse the misconduct. But violating a suspect’s right to counsel will not be tolerated, because it is the often the only defence that a suspect or detainee has against the full power of the state.

Mr. Maciel was charged with operating a motor vehicle while impaired as well has refusing to provide a breath sample. The police were notified of an accident, which involved a pickup truck colliding into a backyard fence. The driver of the vehicle fled from the scene of the accident. Since Mr. Maciel matched the description given to the police by witnesses, he was arrested. Upon arrest, Mr. Maciel was informed of his right to counsel. He indicated that he wanted to speak to a specific lawyer. After conducting a Google search, the police found two numbers for Mr. Maciel’s lawyer. They made two attempts to contact his lawyer. After failing to reach Mr. Maciel’s lawyer, the police provided Mr. Maciel the opportunity to contact a legal aid lawyer (known as duty counsel) instead, however he declined.

Once a detainee asserts her right to counsel, the police have an obligation to facilitate access to counsel as soon as possible. Only in rare circumstances can the police justify a delay in facilitating this right. In addition, barriers that stand in the way of this right must be proven, and the police must show they took proactive steps to allow a detainee to contact his lawyer. The police can proceed with questioning the detainee for investigative purposes only after they have fully satisfied their duty to provide the detainee with reasonable opportunity to contact a lawyer. The collection of any incriminating evidence from the detainee before she has had a chance to consult her lawyer is prohibited.

The right to counsel goes beyond providing the detainee with the ability to contact a lawyer. If the detainee wishes to speak with a specific lawyer, the police must take measures to allow him to consult the lawyer of his choosing. An individual is only expected to contact another lawyer if the lawyer he has chosen cannot be contacted within a reasonable time. In the case of R v Maciel, the Court held that the police failed to uphold Mr. Maciel’s right to counsel because they did not allow him to contact the lawyer of his choosing. After the police’s efforts were assessed, the Court found that they did not act diligently in the circumstances. Although the police conducted a Google search to obtain the contact information of Mr. Maciel’s lawyer, they did not consult his law firm’s website. The Court found that a reasonable person would have checked a lawyer’s website, as that it where their contact information is most likely to be found. In addition, the police only waited 25 minutes before they made their second attempt to contact the chosen lawyer. Even though in cases of drinking and driving there is a sense of urgency to collect breath samples, which can accurately indicate a person’s blood alcohol content, this need does not trump an individual’s right to counsel.

In some jurisdictions, the police allow the detainees to search for the contact information of the lawyer they wish to consult themselves. However, the Peel police, who were in charge of Mr. Maciel’s matter, assumed the responsibility to contact the detainee’s counsel of choice. The Court stated that in situations where the police carry out the task of contacting counsel of choice, the following steps should be taken: 1) asking the detainee if they have possession of the contact information for counsel of choice, or are aware of anyone else who may have this information, 2) providing the detainee access to their personal cellular device, if this phone has the telephone number of the person they wish to contact, 3) conducting an internet search of the contact information which includes consulting the lawyer’s website, 4) checking online directories such as Canada 411, Canadian Law list, and 5) checking traditional paper-based directories such as the Yellow Pages. Since the police failed to adhere to these minimum requirements, Mr. Maciel’s charges were dismissed.

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Arun S. Maini, lawyer and founder of The Defence Group, has practised criminal law since 1995. He’s a graduate of the University of Toronto and Dalhousie University Law School. After completing his articles at a Bay St. law firm, Mr. Maini joined the federal Department of Justice as a prosecutor of drug trafficking, tax evasion, and immigration fraud cases in Toronto, Brampton and Vancouver. In 1999, Mr. Maini transferred to the provincial Crown attorney’s office in Brampton, where he prosecuted a wide range of criminal offences, from theft to murder. In 2003, Mr. Maini left the government to establish The Defence Group. Mr. Maini handles all criminal offences and regulatory prosecutions.

Over more than 25 years as a criminal lawyer, Mr. Maini has prosecuted and defended hundreds of criminal cases, and has extensive jury trial experience. Mr. Maini has also lectured at The Advocates’ Society and has taught advocacy at the Law Society and Osgoode Hall Law School’s Intensive Trial Advocacy program. Maini appears occasionally in the media to comment on criminal law – see examples from the CBC, the Toronto Star, and the National Post.

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