R. v. McKay (C.S.), (2013) 552 A.R. 387 (PC)

• Judge: Lamoureux, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: January 21, 2013
• Jurisdiction: Alberta
• Citations: (2013), 552 A.R. 387 (PC);2013 ABPC 13

R. v. McKay (C.S.) (2013), 552 A.R. 387 (PC)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. FE.018

Her Majesty the Queen v. Christopher Scott McKay (111003307P1; 2013 ABPC 13)

Indexed As: R. v. McKay (C.S.)

Alberta Provincial Court

Lamoureux, P.C.J.

January 21, 2013.

Summary:

The accused was charged with drinking and driving offences. The accused said that he was not given a reasonable opportunity to exercise his right to counsel and 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 to contact a lawyer, including internet access.

The Alberta Provincial Court held that the accused was not given a reasonable opportunity to exercise his right to access a lawyer, by the failure of the police to provide concurrent access to the internet along with 411, the toll free number and the paper telephone directory. Accordingly, a s. 10(b) Charter breach had been established.

Editor's Note: In a decision reported at (2013), 552 A.R. 395, the court concluded that the evidence should be excluded under s. 24(2) of the Charter.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The accused was charged with drinking and driving offences - The accused said that he was not given a reasonable opportunity to exercise his right to counsel and 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 to contact a lawyer, including internet access - The Alberta Provincial Court held that the accused was not given a reasonable opportunity to exercise his right to access a lawyer, by the failure of the police to provide concurrent access to the internet along with 411, the toll free number and the paper telephone directory - Accordingly, a s. 10(b) Charter breach had been established - The court took judicial notice that the average 19 year old (the accused's age at the time of the offences) would look to the internet for information to get legal advice before checking White Pages, Yellow Pages or 411 - The court stated that "Every police station should have access to the internet so that accused' persons can go to the internet to access the names of lawyers that they require. This information in the virtual world must be provided concurrent with information in the real world, such as the Yellow Pages, White Pages, and 411. ... The Crown says that the police do not have any duty in law to provide access to the internet for detainees when there is no specific request to access the internet. The Court disagrees. In [this] particular case, the accused was actually directed to use the toll free number and he did so in ignorance of the potential to use other resources with which he might have been more familiar. In the Court's view, 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".

Civil Rights - Topic 4609

Right to counsel - General - Duty to notify accused of or explain right to counsel - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - [See Civil Rights - Topic 4604 ].

Evidence - Topic 2264

Special modes of proof - Judicial notice - Particular matters - Human conduct - General - [See Civil Rights - Topic 4604 ].

Cases Noticed:

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161; 92 C.C.C.(3d) 289, refd to. [para. 20].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 10(b) [para. 10].

Counsel:

Kristyn Stevens, for the Crown;

Ian Savage, for the accused.

This application was heard before Lamoureux, P.C.J., of the Alberta Provincial Court, Judicial District of Calgary, who delivered the following ruling on January 21, 2013.