Court of Appeal sets things right on traffic offences

Moderators: Reflections, admin, hwybear, Radar Identified, Decatur, bend

User avatar
Radar Identified
Posts: 2881
Joined: Mon Sep 08, 2008 8:26 pm
Location: Toronto


by: Radar Identified on
Tue May 18, 2010 11:14 pm

BTW, American TV shows have it wrong with the phone call thing. You do NOT have the right to make "one phone call" in the US when you're under arrest. They try to play up the drama with this legendary "one phone call," but it's completely incorrect. (Scenarios like someone trying to decide who they're going to call with this supposed "one phone call," etc.) In the US, when arrested, you have the right to speak to an attorney, much like in Canada.
* The above is NOT legal advice. By acting on anything I have said, you assume responsibility for any outcome and consequences. * OR
Posts: 139
Joined: Tue Jul 14, 2009 9:14 am

by: Marquisse on
Thu May 20, 2010 3:10 pm

Hey guys, sorry this si going to be long, but I was interested in this and brought it up in discussion in class on Wednesday afternoon. We ended up having a 1/2 hour discussion on it as it conveniently coincided with our lecture on building cases building arguments - from technicality to Charter motions. Although not likely to happen unless the violation was gross in nature, unreasonable conduct on the part of the police can bring forth a charter motion, and it can do so in a number of ways.

We are coming from two difference perspectives. Firstly, you are right, there is no entitlement to one phone call. There is no limit. The Charter maintains that we have the right to seek and instruct counsel without delay. This right is activated at detainment. Note the language used, specifically, the terms "seek and instruct". This could include what I had incorrectly referred to as "personal phone call", where that personal phone call is used to seek and instruct counsel. So while there is no specific "one personal phone call" right, the explanations here are not accurate. Both here are only telling half of the story.

The police are required to respond and conduct themselves reasonably. If it is reasonable to refuse the detained individual access due to safety issues, then the officer, as hwybear illustrated, could make the call, but you must be careful that you taking control of the individual's use of the phone does not prevent the prisoner from reaching counsel. Calling an leaving a message if most often quite adequate, but the individual may continue to invoke his/her right to seek counsel and multiple calls may be necessary in order to reach counsel "without delay".

If the individual does not know a lawyer, having the officer refer Legal Aid is not sufficient, and getting the prisoner in contact with a lawyer is not sufficient in terms of the individual having the opportunity to seek counsel. Officers must clarify if the individual obtained legal advice when there is any doubt, especially when attempting to elicit evidence, or else a Charter motion can be raised.

It is not necessary for the individual to have to name a lawyer. Their right is to seek and instruct, not name and call. If the person wanted to call their wife to call the lawyer, the officer could call the wife to get the number for the lawyer. If the individual wanted the phone book to seek counsel, they should, and that's the operative word, be provided with the means to that phone book, privacy, and the ability to call. The alternative is to make the individual wait until they see duty counsel, which is done and is not necessarily inappropriate, unless you look back at the Charter and it's use of the words "without delay". Notwithstanding all of this, the detained individuals conduct can and often may be responsible for the delay in his/her exercising of S10(b), in which case they won't likely win any motion (or be taken seriously).

Our prof referred to R v. Pavel regarding the issue of the right to seek and instruct counsel.
Jr. Member
Jr. Member
Posts: 91
Joined: Sat May 29, 2010 7:19 pm
Location: Hamilton, ON

by: Biron on
Sun May 30, 2010 12:55 am

10. Everyone has the right on arrest or detention
(b) to retain and instruct counsel without delay and to be informed of that right
I don't see anywhere in that section of the Charter that someone has the right to a telephone call, personal or otherwise.

This right has 3 parts, all of which are essential to it.

First; to retain and instruct counsel.

Second; without delay.

Third; to be informed of that right.

If the most expeditious way (without delay) to retain and instruct counsel is through a telephone call to someone's parent or friend, then any other method or means will create delay.

The intent of that part of the right is to minimize the time an accused remains under detention without legal advice and representation.

The first part has 2 distinct components; a) retain and b) instruct counsel. Further, it is trite law that this right includes the right to choose counsel.

Strictly speaking, getting connected to a duty counsel does not guarantee that he or she will be retained and/or instructed. In fact, that is seldom the case.

Through a conversation with a friend or relative, the accused may very well authorize someone better equipped to choose, retain and instruct counsel for the defence of the accused, which would be done much more expeditiously.

Think, for instance, that you may need to talk to more than one counsel to represent the accused at the earliest possible bail hearing. That could be done much more expeditiously (without delay) by someone, who is not detained, other the accused. Further, a person of the accused's trust and authorized by the accused may be able to properly choose, retain and instruct counsel

Why would the function of retaining and instructing counsel need to be done with a police officer as the middle man? How would you like to have a police officer present every time to talk to your lawyer?

Unless the police can prove that by placing the call themselves they would provide the accused the most expeditious way to choose, retain and instruct counsel, the denial to call anyone chosen by the accused for that purpose, in my opinion, would be a violation of s. 10 (b) of the Charter, which is commonly done by the Police.

User avatar
Simon Borys
Posts: 1065
Joined: Fri Apr 30, 2010 10:20 am

by: Simon Borys on
Sun May 30, 2010 12:45 pm

You're missing the point of the way that police allow people to exercise their right to retain and instruct counsel. It's not about providing them with the best way to access counsel, it's about providing them with a sufficient way to do so without negatively affecting their investigation.

They don't just give people a phone and tell them to call whoever they want to get all the advice they need while not being supervised because there is a good chance that may interfere with the ongoing investigation. People who are under arrest obviously can not be allowed to contact someone on the outside and have them dispose of evidence or otherwise impede an investigation.

Also, the right is to "retain and instruct counsel without delay". That doesn't mean that they have to get in touch with the counsel they will ultimately choose to represent them in court right away. It means that they have the right to contact a lawyer for advice and have the option of retaining and instructing them. If they speak to duty counsel and then choose to find a different lawyer after they are released, that's their business. It's not an infringement of their charter rights if they didn't get in touch with the other lawyer at first.
Post Reply
  • Similar Topics

Return to “General Talk”

Who is online

Users browsing this forum: No registered users and 17 guests