In a firm support of the right to counsel, the Supreme Court has told police that they need to be prompt and pro-active in helping suspects find a telephone to call their lawyer.
The ruling, which came in a drunk-driving case, has wide implications for an era in which cell phones are everywhere. It will be much harder for police to argue that finding a telephone was impractical.
On a panel of five judges, four of them appointed by the tough-on-crime Prime Minister Stephen Harper, the court anchored its unanimous acquittal of a suspected drunk driver in a fairly early decision under the 1982 Charter of Rights and Freedoms – an era associated with big gains in accused rights.
"This is a really good example of the court saying, 'this is one right where we won't allow the police to be sloppy or play games,'" Ben Berger, who teaches the right to counsel at York University's Osgoode Hall Law School, said in an interview.
Jamie Taylor crashed his pickup truck near Cochrane, Alta., on April 13, 2008, and three passengers were thrown clear, and seriously injured. When police arrived, Mr. Taylor told them he wished to speak to his lawyer. An ambulance took him to hospital, and police watched, without giving him a chance to use a phone, as medical staff drew blood from him 20 to 30 minutes later. Police later obtained a warrant to seize the blood. Mr. Taylor was convicted of three counts of impaired driving causing injury, but the Alberta Court of Appeal threw out the convictions, saying the investigating officers should have lent their cellphone to Mr. Taylor.
One of the officers involved said he had made a "rookie mistake" in not trying to find a phone for Mr. Taylor before his blood was taken. Another said there was no private space for a call. But the Supreme Court had no sympathy for police errors, and said the other officer hadn't bothered to ask hospital staff if there was a private space. It said, that while Mr. Taylor may not have had a right to use an officer's phone, in light of safety and privacy concerns, he had the right to contact a lawyer "at the first reasonable opportunity."
"This is a case not so much about delay in facilitating access, but about its complete denial," Justice Rosalie Abella wrote for the court. "This ongoing failure cannot be characterized as reasonable. Constitutional rights cannot be displaced by assumptions of impracticality. Barriers to access must be proven, not assumed, and proactive steps are required to turn the right to counsel into access to counsel."
She quoted from a 1994 ruling by chief justice Antonio Lamer, who was an ardent defender of accused rights: "When an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him- or herself."
Under the Canadian rights charter, the court could still have allowed the illegally obtained evidence to be used against Mr. Taylor. But it refused to do so, saying that it would bring the justice system into disrepute.
Prof. Berger said the right to counsel has been well-established, but that police still find it convenient to delay access to lawyer so they can obtain evidence. "Right to counsel really is the great leveller in the interaction between police and the citizen."