Date:
20130121
Docket:
111003307P1
Registry:
Calgary
Between:
Her Majesty the Queen
- and -
Christopher Scott McKay
Ruling on Voir Dire by the Honourable Judge H.A. Lamoureux
[1] The accused is charged under s. 253(1)(a) and 253(1)(b) of the
Criminal Code. The
accused has a filed a Notice pursuant to the
Charter s. 24(2), to exclude evidence obtained
arising from alleged breaches of the accused’ rights pursuant to s. 7, 8 and 10 of the
Charter. In
particular, the accused says that he was not given a reasonable opportunity to exercise his right
to counsel and that the accused was not provided with a full range of resources and access to
sources of information which reasonably were or ought have been made available to him to
contact a lawyer, including internet access. The Defence also says that the accused was not given
reasonable assistance by police to contact his choice of counsel and that he did not waive his
right to counsel in any legally binding manner.
[2] There is a specific issue in this case, in that the accused says that internet access should
form part of the resources provided by police to detainees in order to allow them a reasonable
opportunity to exercise the right to counsel.
Evidence in the Voir Dire
[3] In this case, both the Crown and Defence have called evidence in the
voir dire.
Crown Evidence
[4] The Court has evidence from Constable Dennis Vink who has been a member of Calgary
Police Service for 13.5 years and is a qualified breath technician who has administered hundreds
Page: 2
of tests. The officer testified that on August 22, 2011, he stopped the motor vehicle being
operated by the accused in a traffic stop as a consequence of his observation that the vehicle
proceeded through a red light without stopping. The officer noted that the accused had a very
light smell of alcohol on his breath and he informed the officer that he had consumed one beer at
a friend’s house that evening. The officer formed the requisite suspicion that the accused had
alcohol in his body at the time of operating a motor vehicle and he radioed for an ASD. At 1:43
am, the officer made an ASD Demand and the sample which was acceptable registered a fail at
1:44 am. The ASD was an Intoxilyzer 400D and it was working properly. The officer testified
that the fail meant that the accused’ blood alcohol exceeded the legal limit and he formed the
opinion that the accused’ ability to operate a motor vehicle was impaired by alcohol. The
accused was arrested at 1:49 am for the offence of operating a motor vehicle while his ability to
do so was impaired by alcohol. The accused was read his
Charter rights at 1:49 am from a card.
The accused was asked if he understood and he replied, “yup”. The accused was asked if he
wanted to call a lawyer and he replied, “yes”. The officer read a proper Caution at 1:51 am
followed by a proper breath demand at 1:53 am. The accused was transported from the scene at
1:54 am and arrived at 2 District office at 2:00am. Upon arrival the officer showed the accused
the resources available to contact counsel. In particular the officer showed the accused the 1-866
telephone number on the wall, 411 for information as to phone numbers, the White Pages and the
Yellow Pages of the telephone book. The accused was given privacy and he made a telephone
call at 2:04 am. The accused finished the telephone call at 2:09 am. He was asked if he spoke
with someone and he replied, “yes”. At 2:13 am the accused was brought before a qualified
breath technician and he provided samples into an approved instrument, the first sample at 2:14
am and the second sample at 2:36 am. The breath technician produced a Certificate of Analysis
of the accused’ breath which was given to the arresting officer. Officer Vink signed the bottom
of the Certificate of Analysis, explained the document to the accused, read the Notice of
Intention to Produce the document at Trial to the accused, served a true copy of the original of
the Certificate of Analysis (a carbon) on the accused. The officer, prior to service, compared the
original Certificate with the carbon copy given to the accused, determined that they were exact
duplicates of one another. Service of the Certificate of Analysis was effected and the accused
was released shortly after 3:00 am with his documents, including the Certificate of Analysis,
Exhibit “A” in the
voir dire, “in his hands”. The accused was also served with an Appearance
Notice, a Second Offender Notice, and a license suspension.
[5] In cross examination the officer clarified that the White and Yellow Pages from the
telephone book were current editions. In cross examination the officer also testified that at the
time of dealing with the accused, police did not have any ability to provide access to the internet
to detainees in a secure holding area. The officer testified that no access to the internet was
given and he testified that no access to the internet was requested by the accused. He did
reiterate in cross examination that the toll free number, the White Pages, the Yellow Pages and
411 information was given to the accused. The officer also testified in cross examination that to
his knowledge, lists of lawyers who practice in the area of impaired driving offences are
contained in the Yellow Pages of the Calgary telephone book.
Page: 3
Defence Evidence
[6] The accused, Christopher McKay, testified in his own defence in the
voir dire. He is 20
years of age and was 19 years of age at the time of the dealing with police in this case. Mr.
McKay is a graduate of the Mount Royal University Broadcasting Program and he is currently
working as a cameraman in the audio visual field. Mr. McKay testified that upon arrival at the
Calgary Police station his cell phone was placed in the police locker along with his other
personal belongings. He testified that he was taken to a phone number which was mounted on
the wall by telephones and he utilized that telephone number. He testified that he used that
telephone number when the officer told him that there was a number to call for free legal advice.
The accused testified that to his recollection, that he did not see telephone books and that he does
not recall the officer pointing out telephone books to him. However, he did testify that after he
dialed the toll free number and was placed inside a holding cell to talk the person on the
telephone, he did notice a set of “phone books on the floor”. The accused also testified that he
usually uses
Google to access any information that he needs. He was asked by his lawyer if he
understood what 411 was. He testified that he did not know what 411 was at the time and that he
would not have considered “411 a viable search engine”. Mr. McKay testified that he was
certainly interested in obtaining legal advice at the time and that he would access
Google to
search out appropriate legal advice. Mr. McKay also testified that at the time of his arrest he
believed that he had the right to only one telephone call and that once he had used up that
telephone call his rights were exhausted. Mr. McKay also testified that the call that he made
using the toll free number did not give him anymore information than he already had received
from the arresting officer. He testified that the telephone call was abrupt and it appeared that the
person on the other end of the telephone did not want to talk to him. Mr. McKay was asked
about his level of satisfaction with his toll free telephone call and he replied, “no satisfaction at
all”. Mr. McKay reiterated that at the time, he thought he could only have one telephone call
and that his understanding arose from pop culture and Hollywood movies. In examination in
chief Mr. McKay conceded that he did not tell the arresting officer that he wasn’t satisfied with
his telephone information and he reiterated that he did not know that he had any rights to further
opportunities to get legal advice at the time.
[7] In cross examination Mr. McKay conceded that he had consumed five beers 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”.
Decision
[8] The key issue for consideration in this case is whether internet access should form part of
police resources provided to detainees in order to facilitate a reasonable opportunity to exercise
the constitutional right to counsel.
[9] There is crucial evidence in the testimony of the accused on the issue of his knowledge of
resources available to him to find information that he is not personally aware of. The evidence is
at p. 7, ll. 20-24 of the Transcript:
Q How do you -- how did you generally search for information at that time
in your life?
Page: 4
A By using
Google.
Q Okay. And what does
Google do for you?
A
Google is the main way that I find information or services that I don’t
know of.
[10] We are at an unprecedented time in human history. The real world exists parallel to and
in tandem with the virtual world. It is uncontroverted that the vast majority of individuals born
after the year 1980 first look to the virtual world for information, for education, for access to
services, before they consider access to anachronistic services such as paper telephone
directories and numbers posted on a wall. The computer generation considers the internet, the
cell phone, the iPad, the Smartphone, essential partners in daily life. The average 19 year old
looks to
Google as a source point for much of the information necessary to carry on daily life.
Google
mapping, driving motor vehicles with the assistance of Google, access to restaurants,
access to medical care, access to Universities and educational information, and access to
lawyers, along with millions of other items of information are all contained on the metasource -
Google
. Indeed Google seeks as one of its missions to become the source of original information
for the world.
[11] 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”. Transcript p. 8, ll. 4-16:
Q Okay. So at the time, August 22
nd, 2011, when you were in that police
station with Constable Vink, did -- what was your understanding of 411?
A I was not a hundred per cent sure. I would not have considered it a
viable search engine or directory resource.
Q Okay. In the circumstance that you were in on that occasion, were
you interested in receiving legal advice?
A Absolutely.
Q Okay. If you had not been in a police station, how would you have
searched for information about legal advice?
A I would have searched for legal advice using the internet, more
specifically,
Google.
[12] So, what information would have been available to the accused if he had gone on
Google
and questioned
Google as to “Calgary criminal defence lawyers”?
Page: 5
[13] A search of
Google in five seconds or less, reveals the following information:
Criminal Lawyer
- Respected with 20 Years Experience
www.criminallawcalgary.ca/
Criminal Law Trials and Appeals
Contact Us Now - About Us - Criminal Law Specialty - Impaired Driving Expertise
Criminal Defence Lawyer
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[14] In short, in the manner of seconds, an accused person with access to the internet can
Google
the names of experienced top Calgary criminal defence lawyers including addresses,
telephone numbers, email addresses and other educational information concerning the services
they provide.
[15] The information on
Google may be more current and more detailed than a name and a
phone number in the Yellow Pages, the White Pages, 411 or the toll free number.
[16] The Court notes that police are routinely accessing the internet in order to investigate
crime and to assist them in gathering evidence and data in the course and scope of their
employment. It is now time for police to provide to accused persons access to the internet at the
same time as they provide access to 411 and paper phone books.
[17] 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.
[18] In the current case before the Court there is no question that the accused invoked his right
to counsel. The burden lies with the Crown to establish that the accused was provided a
reasonable opportunity to exercise that right.
[19] 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
Page: 7
even whether counsel of choice is not an issue and the accused is simply seeking general
information from a source such as
Google.
[20] S. 10(b) of the
Charter impresses both informational and implementational duties on
police who arrest or detain an individual. The informational duty was satisfied in this case. The
implementational is indeed two fold as the Crown indicates in its excellent written Brief. The
first implementational duty is “to provide the detainee with a reasonable opportunity to exercise
the right (except in urgent and dangerous circumstance)”.
R. v. Bartle, (1994) 92 CCC (3d) 289
(SCC), at 301. The second implementational duty is to “refrain from eliciting from the detainee
until he or she has had a reasonable opportunity (again except in cases of urgency or danger).”
R.
v. Bartle
, surpra
.
[21] 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.
[22] Accordingly, s. 10(b)
Charter breach has been established.
[23] The Court will hear submissions under s. 24(2).
Dated at the City of Calgary, Alberta this 21
st day of January, 2013.
H.A. Lamoureux
A Judge of the Provincial Court of Alberta
Appearances:
Kristyn Stevens
for the Crown
Ian Savage
for the Accused
