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| Patrick J Ducharme |
Continued from part 1.
In July 2014 the Supreme Court of Canada delivered judgment in R. v. Taylor2. The accused was charged with three counts of impaired driving causing bodily harm. At the scene of the accident the accused was asked if he wanted to call a lawyer. The accused responded that he wanted to speak to both his father and to his lawyer. The Court of Appeal for Alberta had reversed the trial Judge’s convictions on appeal based upon the trial Judge’s erroneous assumption that an accused awaiting or receiving medical treatment could not reasonably be provided with private access to a telephone to implement his rights to counsel.
In Taylor3 the Supreme Court of Canada re-affirmed the principles in Manninen and Bartle. While the Supreme Court of Canada disagreed with the appeal court’s decision that the arresting officer could have provided his own cell phone and that he made a mistake in failing to provide it to the accused, the court had this to say in terms of timeliness of access to counsel of choice:
But the police nonetheless have a duty to provide phone access as soon as practicable to reduce the possibility of accidental self incrimination and to refrain from eliciting evidence from the individual before access to counsel has been facilitated. While s.10(b) of the Charter does not create a “right” to use a specific phone, it does guarantee that the individual will have access to a phone to exercise his right to counsel at the first reasonable opportunity. (para. 28).
As the trial Judge found, Constable MacGillivray admitted that at the hospital, he made a “mistake” and that he would have– and could have– given Mr. Taylor the requested access if he had remembered to do so. Mr. Taylor could have been given the opportunity to speak to counsel at the hospital if Constable MacGillivray had remembered to do so. The investigating officer made no mention in his evidence of any practical obstacles to access to counsel for legal advice such as a medical emergency, the absence of a phone, or problems in providing sufficient privacy to Mr. Taylor.
Continued in part 3.
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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