Editorial: Let suspects dial a lawyer

When it comes to the right to counsel, is it enough for police to ask detainees if they know of a lawyer they’d like to contact and then dial the number for them?

That was one of the issues in R. v. Glenfield, a case dealing with, among other charges, alleged impaired driving causing death against Jeremy Glenfield in relation to a 2011 accident in Wellesley, Ont., a town near Waterloo. In a March 12 ruling on an application by Glenfield, Superior Court Justice Peter Hambly considered defence counsel Paul Burstein’s argument that the Waterloo Regional Police Service had violated the procedure mandated by the Supreme Court of Canada by not allowing Glenfield to actually dial calls to counsel on the night they arrested him.

The issue is an important one for Burstein. At the Criminal Lawyers’ Association conference in the fall, Burstein criticized the police practice in Ontario of asking suspects if they know of any lawyers they’d like to consult and how to spell their name and then dialling the number for them in order to dispatch the call through to a phone in an enclosed room. If they can’t come up with someone to call, they get the “consolation prize” of speaking to duty counsel, Burstein told the conference. “They’re never given an actual phone,” he noted.

It’s a valid criticism. Certainly, it seems reasonable to suggest that providing truly meaningful access to counsel of choice would involve giving some sort of directory to look up a lawyer as well as a phone to make a call. In Glenfield’s case, he wanted to call his mother to see if she could contact a lawyer to advise him before police proceeded with a breath test at the station.

Police initially said no as the officer suggested it was against their policy to contact a third party for the purpose of retaining a lawyer. The officer later relented, but in the meantime police had Glenfield speak with duty counsel and proceeded with the breath test before he could consult with the lawyer his mother was eventually able to contact.

Hambly rejected Burstein’s arguments police had failed to uphold his client’s right to counsel of choice. Among other things, he found it was “irrelevant” whether police allowed Glenfield to call counsel on his behalf or he did it himself. It’s also important to note that there were several factors working against Glenfield. As Hambly pointed out, while police have their obligations when it comes to the right to counsel, suspects must also exhibit reasonable diligence in exercising it. In Glenfield’s case, he was belligerent with police and, when they handed him a directory to search for a lawyer he named, Andrew Spire, he looked in the M section of the book. He later told them Spire was in fact a paralegal. And as Hambly noted, time was of the essence in such a serious impaired driving matter. “Glenfield was obstructing the police and delaying throughout his interaction with the police from the moment that he failed the roadside breath test,” he wrote.

Nevertheless, while this clearly isn’t the best case for Burstein’s general proposition, it’s clear police should go further in accommodating the right to counsel of choice.
People should be able to call someone else to help with finding a lawyer and they should get a phone and a directory to use. It’s time to update police practices on this issue.
— Glenn Kauth

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