Speaking to a lawyer after being arrested                                                      

Everyone who is in a democratic country has the legal right to consult with a lawyer after being arrested and before being questioned by the police or given a breathalyzer test. In the past, that could be a problem in Canada if you didn’t know a lawyer or if the lawyer you knew was sound asleep in his home in the early hours of the morning or if you didn’t even know his home phone number.

I solved that problem in 1976 when I was a guest speaker at a law conference held in Ottawa that year. I proposed that Legal Aid in every jurisdiction in Canada provide twenty-four hour duty counsel and their phone numbers be given to the persons arrested by the police department they are in. Three months after my speech, it became the practice all over Canada. I spoke with a police officer in an Indian reservation and he told me that even his department gives suspects that legal aid number.

In this article, I will tell you about a suspect who seemed to have a problem about getting advice from a lawyer after he was arrested or so he claimed.

On July 13^th, 2014, Mr. Curtis Wade Cromarty was found sleeping behind the steering wheel of his truck. The truck was running and facing the wrong way in a driving lane on a highway. Cromarty was detained for an impaired driving investigation and for breach of probation.

The arresting officer read an approved screening device demand and Cromarty complied and blew a “Fail”. He was then arrested for impaired driving and read a breath demand under s. 254(3). The officer read Cromarty his section 10(b) rights and when asked if he understood, he replied, “Sure” and when asked if he wanted to contact counsel he again replied, “Sure”.

Now let me explain something to you before I go further with this article.

In Canada, if a police officer asks you to blow into the portable screening device when he stops you on the road, you are required by law to blow into the device. It is a method of him determining if you should be arrested and taken to a police station for a breathalyzer test. If you pass the test, then you will be free to go on your way. If you refuse to blow into the screening device, you will be charged under the Criminal Code and the minimum fine is $600 and you will then have a criminal record.

  The officer asked Cromarty which lawyer he wanted to call and he did not respond. He was then taken to the Castlegar RCMP detachment. (The RCMP is both the federal police force and in British Columbia, it is also the provincial police force).

Cromarty sat on the bench in the booking area. He was advised by the officer that now was his opportunity to contact counsel and was asked which lawyer he wished to call. He did not respond and sat quietly with his head down. The officer repeated his question a couple of times over the next six minutes and still Cromarty continued to make no response.

The officer then advised Cromarty that he was turning on the tape recorder, then asked Cromarty, “Who would you like to call? The officer asked Cromarty if he used a lawyer in the past or knows a lawyer he would like to call. There was no response and the officer asked Cromarty a second time who he would like to call and again he didn’t respond but continued to sit quietly with his head down.

Cromarty was then given a phone book and the officer pointed out the lawyers in the area as he was aware that Cromarty didn’t not live in the Castlegar area. Cromarty replied, “Yeah, right on.” The officer then said, “Okay.”

Cromarty then stated, “Lawyers good why don’t you flip it to pizza. What do you want me to do?” Referring to the telephone book the officer stated, “So which lawyer do you want to talk to?” Cromarty replied, “How would I know?”

After being advised that it was his right to speak to a lawyer he was then told, “If you don’t tell us who you want to talk to or don’t pick one, then we can’t put you in touch with one, right?” Cromarty asked, “Is there like a general counsel that …” The officer cut in and said, “That would be Legal Aid.” Cromarty was then asked if he wanted to talk to Legal Aid and he nodded yes.

 The officer then called Legal Aid and advised them that Cromarty was arrested for operating a motor vehicle while impaired and failing to comply with a probation order. Cromarty was then walked down the hall where he was put in a private phone room to speak to Legal Aid. The phone he was given did not dial out. The officer later said this was a private phone but the phone in the booking area was the one they used to call out and then they transfer the call to the phone room. I think it is a given that the officer would then hang up his phone since he can’t legally listen in on the conversation between Cromarty and the Legal Aid person speaking to him.

Three minutes later, Cromarty was finished speaking to Legal Aid and he left the phone room and the officer asked if he understood the advice that had been received and he replied, “Yeah.” He later indicated that he understood what the person on the other end of that phone had told him.

In the subsequent hour, Cromarty asked repeatedly for his cell phone which was in his truck. Although he initially indicated that he needed his cell phone to call “somebody”, he ultimately explained that he had a phone number of a lawyer on his phone. At no point did he tell the police the name of the lawyer that he wished to call.

The officer told Cromarty that he had already spoken with Legal Aid and had asked him countless times that if he had a lawyer he would like to call or knew someone and he gave no response. At that point in time the officer believed that it was just a delay tactic by Cromarty.

Obviously, the longer the period of time that passes from the arrest until the breathalyzer test, there is the possibility that the results of the test may become favorable to Cromarty. That was why he kept stalling with respect to obtaining the advice from a lawyer.

The officer quite rightly refused to go to Cromarty’s truck and get his cell phone for him and his refusal to adhere to Cromarty’s request denied Cromarty a subsequent opportunity to consult counsel again. You may recall that when Cromarty was in the police vehicle, he could have asked the police officer at that time to retrieve his cell phone from his truck so he could phone his own lawyer. This he chose not to do.

Cromarty maintained throughout the conversation with the officer that he was not refusing to provide a breath sample. He just wanted his phone to talk to his lawyer and would provide a sample after he got his phone.

The officer was cognizant that Cromarty was continuing to stall for time for the breathalyzer test to be in his favour.

At Cromarty’s trial, he elaborated upon his concerns while testifying by saying; “I wasn’t just confident that that was a lawyer or legal aid. It sounded -- it sounded like I was speaking to a police officer, and I just didn’t feel like I had good legal advice after the conversation.”

Although Cromarty raised this concern at trial, there was no evidence that he raised any such concern to the police at the time of the investigation. In fact, he told the police that he understood the advice that he had received.

What this stupid jerk was attempting to do was suck and blow at the same time. The trial judge recognized that ploy and convicted him of refusing to blow into the breathalyzer machine.  He subsequently got a lawyer and appealed his conviction.

As far as I am concerned, his lawyer has to be pretty stupid to have appealed his client’s case. Let me explain why.

The grounds for his appeal were as follows;

Ground 1:  The learned trial judge made an unreasonable finding of fact when he concluded that the appellant had failed to inform the investigating officer that he was dissatisfied with his opportunity to contact counsel; and

Ground 2:  The learned trial judge erred in law when he held that the appellant was not entitled to a meaningful consultation with counsel even if that required more than one phone call.

In paragraph 10 of the judge’s ruling he states as follows:

“In any event, Mr. Cromarty said nothing to the police about the concerns that came to him later in hindsight. There was nothing objectively discernable to the police to give them any reason to question his understanding of his section 10 rights.”

Canadian Charter of Rights and Freedoms

10. Everyone has the right on arrest or detention (b) to retain and instruct counsel without delay and to be informed of that right; 

The Court of Appeal hearing Cromarty’s appeal was aware that the trial judge had determined that the Cromarty was “hesitant and unsure of his answers, particularly during cross-examination.” The judge  also noted that when Cromarty was asked by police whether he understood the legal advice that he received, he replied, “Yeah.” The trial judge also noted that Mr. Cromarty did not express any concerns regarding the quality of advice he had received until he gave evidence at his trial. The trial judge c correctly decided that he was not prepared to assume the advice received by Cromarty was deficient simply because it was Legal Aid advice.

When Legal Aid provides 24-hour counsel to the persons arrested and taken to a police station, the counsel are not law students. They are qualified lawyers who specialize in criminal law.

In R. v. Willier, [2010] the Supreme Court of Canada rejected the accused’s argument that two brief consultations with duty counsel were not sufficient to allow him a meaningful exercise of his right to counsel and that the accused must communicate dissatisfaction with the advice received in order for the police to be able to respond appropriately.

This wasn’t what happened in Cromarty’s case. He later indicated to the officer that he understood what the person on the other end of that phone had told him.

  In R. v. Ali, [2015] British Columbia Supreme Court, the accused, after talking to Legal Aid, told police he did not know whether the person that he spoke to was a lawyer but did not otherwise voice concern with the advice that he received. That was the same scenario with Cromarty.

The trial judge considered testimony from the police officer regarding the manner in which the officer connected the accused to Legal Services, including dialing the phone, speaking with someone at that telephone number, explaining that the accused wished to speak with duty counsel, indicating the charge that the accused faced and transferring the call to the accused. The trial judge found that absent any other expression of dissatisfaction, the accused questioning the professional designation of the person he spoke to was not sufficient to call into question his understanding of his section 10(b) rights. The court noted in that case the accused gave no indication that the consultation was inadequate and to the contrary had expressed satisfaction. 

The learned trial judge in the Ali case noted that to inquire more of the police in such a situation would risk imposing a duty on their part to monitor the quality of legal advice received in the circumstances where by law, the police cannot inquire into the content of the advice provided by listening to the conversation between an accused and counsel.

The judge in the Appeal Court said;

“I am satisfied that the trial judge here did not err in finding that the appellant’s comment did not establish an objective basis on which to question his understanding of his section 10(b) rights and I am satisfied that the trial judge did not err when he concluded that the appellant was not entitled to a second opportunity to consult counsel. I therefore dismiss the appeal.”

In British Columbia, refusing a breath test can result in an immediate 3-month driving ban, installation and payment of an ignition interlock device, several administrative, towing and impoundment fees. The suspect will be charged with a criminal offense.  If convicted at his or her trial, the driver is then prohibited from driving for a minimum of one year and his or her car insurance will be increased substantially.

I am going to give you an aside that you will find most interesting and amusing.

Many years ago when I was practicing law and was also a licensed private investigator, I was retained by a lawyer to assist him at the trial of a county official. The defendant was the county’s Reeve.   

I spoke to the Reeve and he told me that when he was asked to blow into the breathalyzer. he refused because the officer  brought out a rubber nipple that was encased in cellophane and put the enclosed nipple in his mouth and with his teeth, he pulled the nipple out of the cellophane.  

I told the lawyer that I had previously visited the police station and told them that I was writing an article on breathalyzers but had never seen one. The officer kindly showed me how it worked and he gave me a nipple enclosed in the cellophane wrapper.

I gave it to the lawyer and at the trial when the officer was giving his testimony, the lawyer handed him the enclosed nipple and asked, “How do you get the nipple out of the cellophane?” The officer put it in his mouth and with his teeth; he shredded the opening and pulled the nipple out with his teeth.

The assistant crown (prosecutor) exclaimed loudly. “Oh God. You didn’t…”

The judge looked at the lawyer and said, “I gather that you are going to bring in a motion to dismiss the charge. Well. it isn’t necessary. From what I have just witnessed, the defendant was quite right to refuse to blow into the machine.