Right to Counsel: Concerns about the 1-800 Number

government funded 1-800 number

In Alberta the Government funds a 1-800 service for detainees trying to exercise their right to counsel.   The existence of a 1-800 legal service for persons in police custody is certainly not new to Canada. By my estimation, Alberta has had a 1-800 legal advice service for approximately a decade -- other provinces even longer.  In R. v. Brydges, [1990] 1 S.C.R. 190 the Supreme Court of Canada held that “a detainee should be informed in all cases of the existence and availability of the applicable systems of duty counsel and Legal Aid plans in the jurisdiction”.  If the applicable system in the jurisdiction includes a 1-800 service, it is incumbent on the police to advise the detainee about it. The Supreme Court of Canada affirmed Brydges in R. v. Bartle, [1994] S.C.J. No. 74:

R. v. Brydges stands for the proposition that police authorities are required to inform detainees about Legal Aid and duty counsel services which are in existence and available in the jurisdiction at the time of detention. Basic information about how to access available services which provide free, preliminary legal advice should be included in the standard s. 10(b) caution.

a voice vs. quality legal advice

The point of this article is not to wax ineloquent about the “informational component” of the right to counsel. Suffice it to say, part of any person’s section 10(b) Charter protected interest upon arrest or detention is to be informed about the right to counsel and the means to exercise it.  Rather, the point of this post is to anecdotally discuss the quality of the 1-800 legal service. My information comes from people who have used it. 

It is important for me to take me this very clear: the information I am providing has been relayed to me by third parties and as such, I have not followed-up or investigated the reliability of the reported information. 

To begin with, in almost every police detachment, there is likely a 1-800 number posted near a telephone for detainees to call for immediate legal assistance.  When retained by a client for any criminal case I often ask whether the client exercised his/her right to counsel. If the answer is “yes” I press with a few follow-up questions, including the method used to exercise the right and the client’s experience. When the client uses the 1-800 service I often drill-down by asking specific questions such as:

• How long did it take to connect to the service?
• Who did you speak with?
• What was their advice?
• Did they listen to your story?
• Did the person ask questions or merely offer perfunctory advice?

I have learned that in many cases it is difficult to connect with a voice on the 1-800 number. In many cases, I am aware that it took more than 45 minutes for somebody to pick upon the telephone.

More importantly, however, I have also learned that the voice on the other end of the phone most often goes unidentified.  Many clients admit that they never asked for a name or had forgotten it, but in a significant number of cases, I have been told that the person on the other end of the telephone refused to identify him or herself.

The refusal to identify is my first major concern with the 1-800 service. It stands to reason that if a person is receiving legal advice from a Government funded 1-800 service the minimum basic requirement is that the voice on the other end of the telephone be a lawyer. Though I certainly assume that persons giving legal advice are in fact lawyers, the absence of proper identification does not allow the detainee or his future counsel to confirm the assumption. This is important because the "right to counsel" envisions the opportunity to receive legal advice, which imports that the legal advice must be from a person sufficiently qualified to give the advice. 

Of course, the question runs deeper; for it is not only about the presence of a lawyer on the telephone, but the quality of the legal advice provided. Simply, a person can listen to a lawyer but if that lawyer is not experienced in the practice of criminal law or Charter litigation, there may be good reason to be sceptical about the legal instruction. 

The quality of the legal instruction is a real concern. I routinely hear from clients that their telephone call to the 1-800 lawyer was surprisingly short in duration. In almost every impaired driving case I have learned that the 1-800 lawyer seldom asks questions about the police investigation.  For example, in an impaired driving scenario, it appears lawyers communicating with detainees seldom ask questions about the circumstances underpinning the traffic stop or the police investigation leading to the making of a formal breath demand. In the vast majority of DUI cases clients have advised that the 1-800 lawyer gave perfunctory advice, broadly stated as: “Don’t say anything and blow”.

is the legal advice complete?

To be clear, in most cases the simple advice, “shut the F*#k up or "be quiet and  blow” is correct. However, there are circumstances in a DUI investigation where a lawyer may need to instruct the detainee about reasonable and probable grounds for arrest and the right to refuse in certain circumstances.  For example, in R. v. Rilling, [1975] S.C.J. No. 72 the Supreme Court of Canada held that a person may be entitled to refuse an unlawful breath demand. What makes a break demand lawful? It must be based on reasonable and probable grounds.  If the police lack reasonable and probable grounds, the detainee may be legally entitled to refuse to comply.

Of course, this is difficult legal instruction that takes time; for refusing to blow pursuant to a valid breath demand can leave a person in extreme jeopardy of being convicted of failing or refusing to supply a breath sample. Accordingly, the lawyer instructing the client must drill-deep to discover any information germane to the police officer's reasonable and probable grounds.  If a lawyer is going to advise to refuse to blow, my view is that the lawyer must be fully advised about the circumstances leading to the breath demand and the detainee should be properly instructed about the risk of refusal.  This can only be done after the lawyer fully explores the circumstances of the  detainee’s arrest, which itself is a time consuming endeavour.  

In so many cases, I am told by clients that their conversation with the 1-800 lawyer was tantamount to “keep your mouth shut”, followed by a good-bye or a hang-up.  I always follow up by questioning the client whether he or she asked questions of the 1-800 lawyer. In many cases the client -- who more often than not lacks experience in criminal justice -- responds with words to the effect: “I didn’t have a chance” or “the guy on the other end was in a hurry”.

Now, to be fair, I have heard good stories from clients about their experience with 1-800 lawyers.  That said, I would say that on most occasions, I would characterize the boilerplate advice offered from 1-800 lawyers (as communicated to me through my client) as fortunately correct. When I say “fortunately correct” I mean that most of the time, the advice to “remain silent” or “don’t talk and blow” is basically correct.  However, it is correct for no other reason than the boilerplate advice is the right advice most of the time.. 

There are occasions where a lawyer might instruct a client to communicate with the police. For instance, if the detainee has a credible alibi.  An alibi is a defence where the accused claims to be totally absent from place where the alleged crime took place, with such separation that it is impossible for him/her to have committed the offence.  By operation of the our common law, persons relying on alibi must give alibi notice to the Crown as soon as practicable so as to enable police to investigate the veracity of the alibi.  Though I would likely still advise the detainee to remain silent and to give alibi notice quickly through his/her future legal counsel (after a lawyer can properly investigate the alibi him or herself), I can imagine a situation where giving the alibi notice to the police immediately is critical. For example, what if a corroborating witness to the accused's alibi was scheduled to leave the Country?  

Even where advice is essentially correct, the failure to take time with the caller may result in the detainee lacking more refined instructions about how to protect him or herself while in police custody. By way of a example, it may be correct to tell a person charged with murder that they should remain silent, but in my opinion it is negligent to fail to advise the detainee about police investigative techniques that may be used to collect additional evidence while under a potentially lengthy detention. To that end, I have represented clients who have left DNA on soda pop cans.  I have defended clients who made statements to undercover police while in cells.  I have handled cases where clients used a telephone at the police detachment to make private calls, not protected by solicitor-client privilege.  In many cases, the accused was told to remain silent, but was not properly instructed about the scope of the right to silence and the sophistication of police tactics.  In many cases the evidence was collected after the client received legal advice. 

A WORD OF CAUTION

I am not saying a detainee should not use the 1-800 legal service. I am also not saying that the 1-800 service necessarily fails to give quality legal advice. Rather, I am saying that every detainee has the right to retain and instruct counsel without delay. The right must be more than merely hearing a voice on a telephone -- to be meaningful, it must be legal advice of sufficient quality.

The 1-800 service is one tool, but there are others.  The police can provide telephone books (white and yellow pages). With today’s technology there may cases where a detainee can access the Internet to do a Bing or Google Search. If the detainee knows of a lawyer but can’t find the number, he or she can ask police for assistance in locating a number. Many police obstruct a detainee who attempts to call a non-lawyer for the purpose of obtaining the telephone number for a lawyer. In my view, this could be the subject of a Charter challenge.

Remember, there are many criminal lawyers in Alberta who are monitoring their mobile telephone.  Accordingly, though it may be difficult to connect with a lawyer of choice during non-business hours, late in the evening or very early in the morning, it is not impossible. Also, choice of counsel requires police to hold off collecting evidence from the detainee for a reasonable period to allow the lawyer of choice to call back.

It is important to remember that the right to counsel is the first step towards properly defending against a criminal prosecution.  Good legal advice consists of not merely the reiteration of the right to silence; it consists of information to educate the detainee about his or her entire legal predicament, including police tactics to bolster evidence germane to their investigation.

be duly diligent in exercising your right to counsel

At the end of the day, it is important for every detainee to be duly diligent in exercising the right to counsel.  Various levels of court have expressed on this issue, including the Supreme Court of Canada. See R. v. Prosper (SCC), R. v. Bartle (SCC) and R. v. Luong (Alta. CA) et al.  Due diligence means that the detainee must take all reasonable steps to exercise their right to counsel in a timely manner.  Whether a person is duly diligent is assessed on a case-by-case basis. To make it simple, however, do not linger in exercising the right and make use of all of the available resources (including the 1-800 number). Also, use your common sense.  Though you might have a lawyer of choice at 3AM (and certainly the police have obligation to permit a reasonable chance to connect with that lawyer), the likelihood of connecting at that time may not be reasonable. If that happens, use the other tools and/or call other lawyers. 

David Chow is a Calgary criminal lawyer who might answer the telephone after business hours.  Even if it’s after midnight, if you need urgent help, try calling 403.452.8018.  If David doesn’t answer, leave a message.