The right to legal counsel is one of the most fundamental rights. In Canada, it is enshrined in the Charter, which recognizes that when someone is taken into custody they are at an inherent disadvantage to the state. Whether guilty or innocent, they are at a greater risk of somehow incriminating themselves. One of the law’s way of retilting that balance of power is to give a suspect the right to call a lawyer. Last week, the Supreme Court rightly ruled that the right to counsel also means the right to access counsel.
One would think that in an era where cellphones are ubiquitous, making a call to a lawyer wouldn’t be a big deal. But the case before the court proves that’s not always true. Police, the court emphasized in a unanimous verdict, have a duty to not only offer a suspect a perfunctory opportunity to call a lawyer, but also to help him find a phone if one is not available. The ruling is an important affirmation of a right that is often taken for granted, but crucial for justice.
Consider Jamie Taylor’s story – which is exactly what the Supreme Court did. He crashed his pickup truck near Cochrane, Alta., on April 13, 2008. Three passengers were seriously injured. Police arrived on the scene and arrested him for impaired driving. Mr. Taylor told them almost right away that he wanted to speak to his lawyer. His request was noted, but never acted upon. Not at the scene of the accident, or in the back of the police cruiser, or at the hospital where he was taken for medical treatment. Medical staff drew blood from him, which police later obtained a warrant to seize; it showed levels of alcohol above the legal limit. Mr. Taylor was eventually convicted of three counts of impaired driving causing injury.
Mr. Taylor asked to speak to a lawyer, but was never given access to a phone. If he had managed to make that call, things could have unfolded differently. Perhaps a lawyer would have advised him not to consent to the medical treatment that yielded the evidence used against him. If he had consented, it would have been informed consent. Investigating officers could have lent their cellphone to Mr. Taylor. They could have let him use a phone in the hospital. None of that happened. “A rookie mistake” is how one officer described it. The court threw out the convictions against Mr. Taylor. He should have been able to exercise his rights soon after he asked. Instead, his request to call a lawyer was logged – and ignored. Not good enough.