Court: Access to Internet is fundamental part of right to counsel

Legal Blog Watch

2013-02-26 11:42:54 AM

Today the Slaw blog highlighted R. v. McKay, a very interesting Canadian case in which a 19-year-old defendant claims he was not given a reasonable opportunity to exercise his right to counsel. The defendant's main argument is that he 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" because he was not given access to the Internet.

Following his arrest for operating a motor vehicle while impaired by alcohol, the defendant was asked if he wanted to call a lawyer and he replied, "yes." An officer then showed the accused the "resources" available to contact counsel:

• 411 for information as to phone numbers; and
• the White Pages and the Yellow Pages of the telephone book. 

The defendant made a telephone call to someone for legal advice, and later testified that the person he reached dealt with him abruptly and did not want to talk to him. He also testified that because he believed ("based on Hollywood movies") that he was only entitled to one telephone call, he did not request any further opportunities to get legal advice at the time. After the phone call, the defendant subsequently incriminated himself, and the case came before the Provincial Court of Alberta on the defendant's motion to exclude the incriminating evidence because he was denied a reasonable opportunity to exercise his right to counsel.

The Provincial Court of Alberta focused on whether providing a defendant with access to "411" and the White and Yellow Pages -- but no access to the Internet -- was adequate. The court noted that, like most 19-year-olds, the defendant uses the Internet and, specifically, Google to access any information that he needs. The defendant also testified that he "did not know what 411 was at the time and that he would not have considered '411 a viable search engine.'"

The court stated:

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. ...

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:

The court did not specifically address the usefulness (or lack thereof) of the White Pages or Yellow Pages, but I would have to guess that most 19-year-olds have never used either of these 20th century-type resources in their lives. By contrast, the court stated, a Google search for "Calgary criminal defence lawyers" immediately produced a lengthy list of "experienced top Calgary criminal defence lawyers including addresses, telephone numbers, email addresses and other educational information concerning the services they provide."

The court concluded that access to 411, the White Pages and Yellow Pages did not provide the defendant with a reasonable opportunity to exercise his right to counsel, and asserted that "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."