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Thursday Thinkpiece: Skolnik on Calls to Counsel and Constitutional Rights

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Why There Should Be No Constitutional Right to Contact Counsel from a Police Car
Originally published in the Western Journal of Legal Studies, Vol. 5 [2015], Iss. 4, Art. 5

Terry Skolnik, LLL (UOttawa), LLM (Cambridge), SJD candidate (University of Toronto)

Excerpt: Introduction, Part III & IV

[Footnotes omitted. They can be found in the original via the link above]

INTRODUCTION
Are police officers obligated to facilitate an accused’s right to counsel via a cell phone? In R v Taylor, the Supreme Court of Canada (SCC) clarified police officers’ positive obligations regarding the constitutional right to counsel outside a police detachment. Police officers are not required to provide their own cell phones to detained or arrested persons to facilitate communication with counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms.

However, Taylor did not address whether a detained or arrested person can use his own cell phone to contact counsel from a police car. Because of increased cell phone use in Canada, it is likely that more detainees will request to use their own cell phones to contact lawyers. The courts’ position on whether the Charter allows an accused to use her cell phone to contact counsel from a police car will therefore become important.

This article argues that police officers should not be constitutionally obligated to allow detained or arrested persons to use their own cell phones to contact counsel from a police car for three reasons. First, recent judicial interpretations of the right to counsel appear to negate the right to use cell phones to call counsel. Second, practical concerns related to public safety and privacy also weigh against the right to contact counsel from a police car. Third, pre-existing safeguards adequately protect arrested and detained persons against self-incrimination.

This paper first considers the facts of R v Taylor and discusses the decisions of the trial court, the Alberta Court of Appeal, and the SCC. Second, the paper examines the impact of Taylor on Canadian law. Third, the paper examines recent judicial interpretations of the right to retain and instruct counsel in order to demonstrate that police officers must immediately facilitate contact with counsel. Fourth, the paper discusses the security and privacy concerns that arise from using a cell phone to contact counsel from a police car. Fifth, the paper considers the traditional safeguards associated with the right to counsel. The paper concludes that courts should not recognize the right of detained and arrested persons to contact counsel from the back of a police car.

III. ANALYSIS

Taylor is likely to have far reaching implications, particularly with respect to police officers’ positive obligations to facilitate communication with counsel in hospital settings. Taylor is consistent with earlier jurisprudence that found eliciting evidence prior to any attempt to facilitate contact with counsel violates the Charter right to counsel. Unfortunately, the decision does not distinguish land lines from cell phones. Further, the decision does not address how the use of cell phone technology affects security and other policy concerns.

Taylor upholds that the burden of proof falls on the Crown to demonstrate that a delay was reasonable and the accused had no reasonable opportunity to privately communicate with counsel. Following Taylor, the circumstances that justify police delaying an accused’s contact with counsel are relatively clear. Medical, logistical, or security concerns can justify delays provided the accused consults counsel within a reasonable time frame. Examples of justifiable delays include (i) sufficiently grave medical emergencies that render communication unfeasible; (ii) insufficient privacy; (iii) availability of a telephone (and officers are not obligated to provide theirs for safety and privacy reasons); (iv) dangerous circumstances that prevent immediate contact with counsel; and (v) public safety concerns.

Yet Taylor does not address whether the police must allow an accused to use her own cell phone to contact counsel in a police car. Cell phone access in a police car is particularly relevant as many Canadians are cell phone subscribers. Many arrested individuals possess cell phones at the time of their apprehension. Following a search, cell phones and other possessions can be confiscated from arrested persons, which prevents the use of cell phones to contact counsel from police cars. Individuals subject to investigative detention in public settings may be precluded from using their cell phones to contact counsel due to police directives and practices, or because of concerns that cell phones may be used for illicit purposes. These individuals may be brought to a police detachment to contact a lawyer.

R v Manninen and Taylor established that the accused is entitled to use a telephone to call a lawyer in locations other than a police detachment provided there is a reasonable opportunity to contact counsel. R v Suberu established that police officers are required to immediately facilitate the right to counsel upon arrest or detention, “subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter.” Unfortunately, the law remains uncertain in contexts where an accused wishes to immediately contact counsel from a police car using his own cell phone.

IV. WHY THERE SHOULD BE NO CONSTITUTIONAL OBLIGATION TO PERMIT CONTACT WITH COUNSEL FROM A POLICE CAR

A. Immediately Facilitating Contact with Counsel

The Charter right “to retain and instruct counsel without delay” does not obligate police officers to allow immediate contact with counsel via cell phones. Rather, when an accused expresses her desire to contact a lawyer, police officers must immediately facilitate contact at the first reasonable opportunity and refrain from eliciting evidence from the accused until she contacts a lawyer. Officers can fulfill this requirement by immediately bringing detained or arrested persons to a police detachment to contact counsel.

Canadian courts have generally rejected the notion of an immediate implementation of the right to counsel. Section 10(b) of the Charter reads as follows: “Everyone has the right on arrest or detention . . . to retain and instruct counsel without delay and to be informed of that right.” Courts have recognized that the right to counsel “without delay” does not generally equate to the right to immediately contact counsel. Instead, police officers are required to immediately facilitate contact with counsel at the first reasonable opportunity. Courts have upheld both Suberu and Taylor’s interpretation of section 10(b). However, some courts have also recognized that an accused person may be required to wait a reasonable period of time before either being informed of the right to counsel or contacting counsel. The courts’ recognition is logical since constitutionally protected rights “are not absolute and unlimited rights. They must be exercised in a way that is reconcilable with the needs of society.” Furthermore, the prosecution bears the burden of demonstrating that a delay in contacting counsel was reasonable under the circumstances of the case. Imposing reasonableness as a constraint would not be necessary if police officers were obligated to allow the accused to immediately contact counsel.

In alleged violations of the right to counsel, courts have not generally been concerned with whether counsel was immediately contacted. Instead, courts have assessed whether the police breached the accused’s right to counsel before any attempts were made to facilitate contact with counsel. In the past, police have not met the implementation component when (i) delays were used against the accused to elicit evidence; (ii) delays were deliberate; (iii) the accused was questioned before receiving an opportunity to contact counsel; or (iv) officers did not attempt to facilitate contact with counsel. Reasonable delays in reaching counsel are constitutional when the police immediately transport the detainee to a police detachment to call a lawyer.

The SCC has expressed that the right to counsel is not absolute and does not require facilitating access to a “specific” telephone. It appears that police officers are not obligated to permit the accused to use his own cell phone (a specific telephone) to contact counsel. Instead, officers must discharge their obligation to immediately facilitate contact with counsel by any appropriate means (e.g., immediately bringing the accused to a police detachment).

The objectives of the right to counsel without delay are to minimize the possibility of self-incrimination, obtain relevant legal advice, and make an informed choice of whether to cooperate with a police investigation. Requiring immediate contact with counsel undermines these objectives. For example, a detainee who immediately contacts counsel via a cell phone has not had a “reasonable opportunity” to contact a lawyer if the detaining officers can overhear the conversation. The reasons for a constitutionalized right to counsel cannot be realized when there is limited privacy.

B. Privacy and Public Safety Concerns

Providing detained or arrested persons with the opportunity to use their cell phones to contact counsel may reduce the risk of accidental self-incrimination. However, minimizing involuntary self-incrimination and accidental elicitation of evidence is effective only if the detainee receives privacy and time to consult counsel while public safety is maintained. Contacting counsel from a police detachment protects these interests better than a cell phone call to counsel in a police car.

In consulting counsel, detained or arrested persons “must be able to speak to and listen to a lawyer without the conversation being overheard.” While contacting counsel does not require “absolute privacy,” a cell phone call from a police car can undermine the reasons for granting privacy to the accused when consulting counsel. For example, events, noises, or onlookers may distract the accused when he speaks with counsel. The accused’s counsel could miss or misunderstand important information due to these distractions. The presence of onlookers could also pressure the detained or arrested person to quickly conclude the phone call, which may impact the quality or completeness of advice.

Alternatively, an accused could accept the risks of limited privacy in a police car and contact counsel immediately. Indeed, some courts have held that a sufficient level of privacy can be achieved when an accused contacts counsel from inside a police car. Unfortunately, allowing counsel to be reached from a police car can generate unreasonable risks for officers. While a police officer is required to observe detainees held in a police car, events may distract the officer’s attention and undermine public safety. For example, citizen inquiries may prevent an officer from ensuring the accused’s cell phone is not being used for malicious purposes. A dangerous situation unfolding within the officer’s vicinity could expose both the officer and the detainee to potential harm. The officer may also be requested to assist another officer or provide basic medical attention to a citizen in need.

The safety of the officer and the detainee may be compromised when the officer must simultaneously handle two situations. Long telephone calls to counsel in the police car increase the possible occurrence of other events that would require an officer’s attention. Safety risks may be avoided by immediately transporting the accused to a police detachment. A police detachment not only provides privacy to detainees; it also allows officers to monitor the accused either by camera or through glass, without hearing the accused’s conversation with counsel. The accused can also have a confidential conversation of a reasonable length. A police detachment is devoid of distractions and is a setting where “the conversation cannot be overheard or there is no reasonable apprehension of [the accused] being overheard.”

Additionally, it may be logistically difficult for a person handcuffed in a police car to meaningfully contact counsel. A possible solution could be to place the cell phone on a “speaker” setting. However, the sound quality may lead to misunderstandings or require the accused to raise his voice, which could undermine the privacy of the conversation. Furthermore, detainees risk pain or injury due to the uncomfortable physical position required to contact counsel when handcuffed in a police car.

C. Minimizing the Risk of Cell Phone Use for Illicit Purposes

The risk of illicit, illegal, or dangerous use of a cell phone undercuts the position of some courts that certain circumstances permit the accused to use his own cell phone to contact counsel in a police car. The risk is nearly eliminated when one contacts counsel from a police detachment.

Within a detachment, police can ensure that the accused contacts legal counsel rather than a third party. Police provide the accused with a list of telephone numbers from which to select a lawyer, the officer who places the call to counsel then ascertains the lawyer’s identity, and the line is transferred to the accused in a private room. Further, there is often a remote switch to disconnect calls when the accused is speaking to someone other than counsel or when there is reason to suspect the call was made for illicit purposes.

Officers who access the detainee’s cell phone, locate counsel’s number, dial it for the detainee, and verify that the individual contacted is a lawyer can mitigate the risk that detainees will contact third parties rather than counsel. However, there are two problems with adopting such an approach. First, the mere act of using the accused’s phone allows officers access to private information that they may not have the right to search. For example, when a cell phone is unlocked, it may open to the latest application used by its owner. If the latest application used was a text messaging service, officers could access private information such as the accused’s associations and the content of messages. In addition, officers unfamiliar with the technology of certain phones may accidentally access private information.

Second, cell phones may be used to physically cause harm and allow the accused to escape or resist arrest. Cell phones have been transformed into dissimulated weapons (e.g. Tasers). They can be used to conceal weapons, thereby increasing the likelihood of escape or harm to officers. Requiring the accused to use a telephone at the detachment minimizes risks of physical harm that may be unavoidable if the accused uses his cell phone to contact counsel.

When contacting counsel from a police car, the accused may be unaware that her right to privacy is compromised. A potential solution may be to inform the accused that she cannot expect absolute privacy when consulting her lawyer by cell phone from in side a police car. However, there is a risk that the accused may use the cell phone for malicious purposes. For example, a detainee may use her cell phone to intimidate complainants or witnesses via text messaging or voice calls. The detainee can, in a clandestine manner, contact accomplices in an attempt to escape, to resist arrest or to destroy evidence. She may also destroy incriminating evidence accessible through her cell phone such as photos, text messages, contacts, or information available on social media accounts. Requiring the accused to call counsel from a police station minimizes the possibility of evidence being “lost, destroyed, or rendered impossible to obtain.”

The increasing prevalence and sophistication of voice-activated features on smartphones presents additional risks. Voice-activated features could allow detainees to undertake illicit actions using hands-free technology. Even handcuffed detainees may be able to delete incriminating evidence or send intimidating text messages using voice-activated features.

D. Pre-Existing Safeguards and Reasonable Diligence

Finally, there are several pre-existing legal safeguards that adequately protect the accused against self-incrimination before she contacts a lawyer. These safeguards generate fewer risks than allowing the accused to use her cell phone to contact counsel. First, upon arrest or detention, the accused is informed of her right to remain silent. She is alerted to the consequences of making statements to the police because anything she says can be used against her in trial. Second, police officers are constitutionally required to refrain from attempting to elicit inculpatory statements from the accused once she requests to contact counsel. Otherwise, officers risk the exclusion of the accused’s confessions or self-incriminating evidence from the trial. Third, evidence may also be excluded if the officers intentionally or negligently delay the accused’s contact with counsel.

Even if police officers have fulfilled their constitutional obligations, an accused may still make self-incriminating statements before reaching the police detachment. The statements can be attributed to the accused’s lack of reasonable diligence and patience rather than the officers’ failure to immediately facilitate contact with counsel. To conclude otherwise would place the police in a constant race against time to prevent the accused from self-incrimination.

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