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May Advocate 2017

356 V VOL.O L . 75 7 5 PART P A R T 3 3 M MAY A Y 2017 2 0 1 7 THE ADVOCATE through the “Brydges Line”, a province-wide telephone service provided by the Legal Services Society for persons who have been arrested or detained. The police are also obliged, if specifically requested, to put the detainee in touch with his lawyer if that lawyer is available. What then follows is usually a short conversation, hopefully in private, between the detainee and, in ninety-nine per cent of cases, a stranger on the other end of the phone line. The detainee has been told this is a lawyer and certainly hopes that is the case. Following this usually brief discussion on the phone, the detainee is then subjected to interrogation by the police. Assuming the detainee is convinced by the police to talk with them, the admissibility of any statements made by the detainee is then made the subject of a voluntariness voir dire. Alternatively, an application can be made under s. 24(2) of the Charter for exclusion of the evidence of the detainee’s statements based on an infringement or denial of his rights and freedoms, such as a violation of his s. 10(b) rights. Once again, in rejecting such an application, the judge may ask the rhetorical question: “When a detainee is given access to counsel, usually over the telephone, what more can a lawyer do than tell the detainee that he has a right to remain silent?” The answer is found in the Supreme Court of Canada’s decision in R. v. Manninen,3 where the court, speaking through Mr. Justice Lamer (as he then was), states: The purpose of the right to counsel is to allow the detainee, not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights.4 My comments herein are to assist you as the lawyer on the other end of the phone to advise your client not only of his rights, but also how best to exercise them. Discussing these points with a detainee will take longer than three to eight minutes, which is the average time that most detainees spend on the phone talking with a lawyer about their rights. You should inquire of the detainee if he is in an area that is private. If the answer is “yes” then you can continue. If the answer is “no” then instruct him to ask the police officer present to arrange for privacy so he can talk with you without being overheard. Ask the detainee why he has been arrested. If he is unclear about the reason for his detention, ask him to call out to a police officer and to put that officer on the phone. If the officer agrees to talk to you, then ask the officer for the reason for the detainee’s arrest. If you are talking to an officer who was involved in the arrest and is knowledgeable about the investigation, the officer may or may not give you the information you request. The police are not


May Advocate 2017
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