If you ever find yourself in the back of a police cruiser, a recent court case called R. v. Belliard highlights a mistake the police made that could happen to anyone.
Imagine you are driving through a roadblock and the officer asks you to blow into a roadside screening device. You blow a “FAIL,” and suddenly you are under arrest and being taken to the station for more testing. This is exactly what happened to Mr. Belliard, but the way the police handled his right to a lawyer ended up being a significant violation of his constitutional rights.
So what are your rights when it comes to accessing a lawyer from police custody?
You have the right to contact your counsel of choice. This means the police do not get to choose the lawyer for you. You get to choose your lawyer and the police have to make reasonable efforts to get in touch with that lawyer and let them know that you are in custody.
Mr. Belliard told the police exactly who he wanted to speak with and the officer took over the task of making that call for him. She was persistent. She called three different numbers nine times and left seven voicemails in the middle of the night. However, she made a very strange decision. She refused to say Mr. Belliard’s name in any of those messages. She claimed she was worried about his privacy because she didn’t know if the lawyer’s voicemail was secure, so she just told the machine she had “a male” in custody.
The judge was very clear that this was a breach of the Charter right to a lawyer of choice. When the police take your phone away and decide to be the ones who call your lawyer, the law says they have to be just as diligent as you would be if you were making the call yourself.
If you were calling your own lawyer for help, the very first thing you would say is your name so they would know who was in trouble. By leaving him anonymous, the police took away Mr. Belliard’s agency and ignored the fact that identifying the caller is a universal part of leaving a message. The judge noted that the lawyer might have been more likely to call back if they knew exactly which client was sitting in a cell.
After all, the officer’s privacy concern wasn’t her decision to make. If she was worried about leaving his name on a recording, she should have simply asked Mr. Belliard if he was okay with it instead of making that choice for him behind his back. This is a great reminder that your rights are yours to exercise, and the police should not be anonymizing you when you are trying to get legal advice.
Now, you might be wondering if Mr. Belliard got off because of this mistake, and the answer is actually no. Even though the judge found three different Charter violations, he decided to allow the breathalyzer evidence to be used anyway. This is because it was 1:00 a.m., and the judge felt it was very unlikely the lawyer would have seen the messages in time even if the name had been included. Since the breath samples showed he was well over the limit, he was still found guilty.
The big takeaway for you is this: if you are ever arrested, be very specific about your counsel of choice and don’t be afraid to ask the police exactly what they are saying on your behalf. You have a right to a “meaningful opportunity” to talk to your lawyer, and the police have a duty to act with real diligence to make that happen. Knowing these boundaries helps ensure that if the police do overstep, you and your lawyer are in the best position to hold them accountable.
