•  
  •  
 

Abstract

The Supreme Court of Canada has yet to consider whether there is a constitutional right to use a cell phone to contact legal counsel while detained in a police car. This article argues that it should not be recognized as a constitutional right for three principal reasons. First, recent judicial interpretations of the constitutional right to counsel have foreclosed the possibility of detained and arrested persons using their own cell phones to call a lawyer from a police car. Second, allowing detainees to use their cell phones to contact counsel can create unreasonable risks to public safety and undermine the privacy interests of the accused. Third, pre-existing mechanisms adequately protect the accused against self-incrimination while generating fewer risks than permitting a detainee to use her cell phone to call a lawyer. Traditional and emerging constitutional requirements related to section 10(b) of the Canadian Charter of Rights and Freedoms are satisfied by the process of the immediate transport of detained or arrested persons to a police station to contact a lawyer.

This article is helpful for readers seeking to learn more about:

  • detention and arrest procedures, the application of the Charter to criminal proceedings, section 10(b) of the Charter, the impact of technology, the collection of evidence, public safety concerns, privacy of arrested and detained individuals

Topics in this article include:

  • arrests, detentions, right to counsel, police protocol for arrests, cell phone access, cell phones as weapons, evolution of technology, exclusion of evidence, Charter rights, Charter violations

Authorities cited in this article include:

  • Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11

  • R v Taylor, 2014 SCC 50

  • R v Suberu, 2009 SCC 33

  • R v Black, [1989] 2 SCR 138

  • R v Manninen, [1987] 1 SCR 1233

  • R v Burlingham, [1995] 2 SCR 206

  • R v Feeney, [1997] 2 SCR 13

  • R v Lewis, 2007 NSCA 2

  • R v Smith, 2011 BCSC 1695

  • R v Sinclair, 2010 SCC 35