Par Me Félix-Antoine T. Doyon

Une récente décision de la Cour provincial de l’Alberta a soulevé l’intéressante question de savoir si à l’ère de l’internet, la personne étant sous arrestation a le droit de googler son avocat. La décision R. v. McKay 2013 ABPC 13 mentionne que oui!

Voici certains passages intéressants :

[10]           We are at an unprecedented time in human history.  The real world exists parallel to and in tandem with the virtual world.  It is uncontroverted that the vast majority of individuals born after the year 1980 first look to the virtual world for information, for education, for access to services, before they consider access to anachronistic services such as paper telephone directories and numbers posted on a wall.  The computer generation considers the internet, the cell phone, the iPad, the Smartphone, essential partners in daily life.  The average 19 year old looks to Google as a source point for much of the information necessary to carry on daily life.  Google mapping, driving motor vehicles with the assistance of Google, access to restaurants, access to medical care, access to Universities and educational information, and access to lawyers, along with millions of other items of information are all contained on the metasource – Google. Indeed Google seeks as one of its missions to become the source of original information for the world.  


[14]           In short, in the manner of seconds, an accused person with access to the internet can Google the names of experienced top Calgary criminal defence lawyers including addresses, telephone numbers, email addresses and other educational information concerning the services they provide. 

[15]           The information on Google may be more current and more detailed than a name and a phone number in the Yellow Pages, the White Pages, 411 or the toll free number.

[16]           The Court notes that police are routinely accessing the internet in order to investigate crime and to assist them in gathering evidence and data in the course and scope of their employment.  It is now time for police to provide to accused persons access to the internet at the same time as they provide access to 411 and paper phone books.

[17]           Every police station should have access to the internet so that accused’ persons can go to the internet to access the names of lawyers that they require.  This information in the virtual world must be provided concurrent with information in the real world, such as the Yellow Pages, White Pages, and 411.  There are sufficient numbers of individuals born post computer age who have no understanding of the paper world who have extensive knowledge and understanding of the virtual world.  These individuals must be accommodated and the only way to do that is to ensure that detainees under arrest be given the opportunity to use the internet to call a lawyer in the same way that they can use a telephone book to call a lawyer.

[18]           In the current case before the Court there is no question that the accused invoked his right to counsel.  The burden lies with the Crown to establish that the accused was provided a reasonable opportunity to exercise that right. 

[19]           The question is whether access to 411, White and Yellow Pages and the toll free number amounted to a reasonable opportunity.  The question is to what is a reasonable opportunity is contextual and fact specific.  The Crown says that the police do not have any duty in law to provide access to the internet for detainees when there is no specific request to access the internet.  The Court disagrees.  In particular case, the accused was actually directed to use the toll free number and he did so in ignorance of the potential to use other resources with which he might have been more familiar.  In the Court’s view, in the year 2013 police providing access to the internet is part of a detainee’s reasonable opportunity to contact legal counsel.  This is so even whether counsel of choice is not an issue and the accused is simply seeking general information from a source such as Google.

[20]           S. 10(b) of the Charter impresses both informational and implementational duties on police who arrest or detain an individual.  The informational duty was satisfied in this case.  The implementational is indeed two fold as the Crown indicates in its excellent written Brief.  The first implementational duty is “to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstance)”.  R. v. Bartle, 1994 CanLII 64 (SCC), (1994) 92 CCC (3d) 289 (SCC), at 301.  The second implementational duty is to “refrain from eliciting from the detainee until he or she has had a reasonable opportunity (again except in cases of urgency or danger).” R. v. Bartle, surpra.

[21]           In this case, the Court concludes that the Crown has not met the onus of proof that lies upon it with respect to the first implementational duty on the part of police.  The accused was not given a reasonable opportunity to exercise his right to access a lawyer, by failure of the police to provide concurrent access to the internet along with 411, the toll free number and the paper telephone directory.  In the year 2013 it is the Court’s view that all police stations must be equipped with internet access and detainees must have the same opportunities to access the internet to find a lawyer as they do to access the telephone book to find a lawyer.  

[22]           Accordingly, s. 10(b) Charter breach has been established.

[23]           The Court will hear submissions under s. 24(2).