Denied a Lawyer Twice in Custody

I need some assurance. I was recently arrested during a traffic stop. After read my Miranda rights, i agreed to call a lawyer. The officer responded by telling me soon and to step into the back of the car. Minutes later i banged on the door with my elbow until gaining the attention of one of the officers. I asked "I have the right to speak a lawyer right?" he said yes to which i responded, "i would like to exercise that right". The officer told me once they were done with my friends. I said "I would like to speak to a lawyer right now" he said you cant. Finally, and quite specifically i asked "So i cant speak to a lawyer right now?" he replied no, and soon shut the door.

Now, do i not have grounds to have this case thrown out or charges dropped? I was extremely cooperative with the officers as well, hard to do when your rights are violated.

The right to speak with an attorney applies when you are being questioned. They can detain you without allowing you speak to an attorney.

When you finally hire an attorney that attorney can review the reports and determine if there are grounds to suppress any evidence. Miranda does not appear to be one of those grounds.

Im sorry to have posted here then, but i am a Canadian resident. I thought the United States had the same rights. Our rights read as follows:

"Under the Charter of Rights and Freedoms, an arrested person has the right:
To be informed promptly of the reasons therefore.
To retain and instruct counsel without delay and be informed of that right.
To have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful."

The second applies to my circumstances. The importance is without delay. I was very delayed.

Quote:

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Quoting mmon9

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Im sorry to have posted here then, but i am a Canadian resident. I thought the United States had the same rights. Our rights read as follows:

"Under the Charter of Rights and Freedoms, an arrested person has the right:
To be informed promptly of the reasons therefore.
To retain and instruct counsel without delay and be informed of that right.
To have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful."

The second applies to my circumstances. The importance is without delay. I was very delayed.

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In the United States you have the right to an attorney before questioning - NOT immediately. And even in Canada, I am pretty sure they don't have to call an attorney out to your side in the street - that would be absurd. If you are arrested, you can access that attorney at jail.

It is true, we are allowed to speak to one immediately upon arrest. Its not absurd, its quite important to be swiftly informed of your rights given the particular situation or else you risk being mislead into a conviction.

Here is what must be said by an officer after making an arrest in Canada, "You are under arrest for _________ (charge), do you understand? You have the right to retain and instruct counsel without delay. We will provide you with a toll-free telephone lawyer referral service, if you do not have your own lawyer. Anything you say can be used in court as evidence. Do you understand? Would you like to speak to a lawyer?" (See: R. v. Hebert [1990] 2 S.C.R. 151)

I seriously doubt they are required to drop what they are doing and call an attorney for you while they are busy and in the field. As I said, that would be absurd.

Perhaps you have some legal case that demonstrates that the police MUST cease all their interactions and call for some attorney to roll to the scene of their traffic stop because you ask for one.

And in the case you cited, it seems that the decision that Herbert's rights were violated was later overturned and a new trial appears to have been ordered. The matter had to do with his right to remain silent and not to a right to an attorney to be brought to the scene. I think you are taking the interpretation far too literally.

This is exactly what i was told by the officer. Exactly. He even told me the phone number and asked if i understood and wanted to call one. This is exactly section 10b) of our charter:
10. Everyone has the right on arrest or detention
(b) to retain and instruct counsel without delay and to be informed of that right;

Please see this link from the Candian Legal Information Institutes Website: http://www.canlii.org/en/ca/charter_digest/s-10-b.html

Second Paragraph of Section '[3] Extent of Duty to Inform' reads:
Section 10(b) imposes at least two duties on the police in addition to the duty to inform the detainee of his rights. First, the police must provide the detainee with a reasonable opportunity to exercise the right to retain and instruct counsel without delay. The detainee is in the control of the police and he cannot exercise his right to counsel unless the police provide him with a reasonable opportunity to do so. The duty to facilitate contact with counsel includes the duty to offer the accused the use of the telephone, which in this case was immediately at hand. Of course, there may be circumstances in which it is particularly urgent that the police continue with an investigation before it is possible to facilitate a detainee's communication with counsel.



Now I understand in my circumstance you may argue that this situation falls into the area of such circumstances outlined. However, I was entirely cooperative, as were the others with me, waiting silently in my car. The second time I was denied there were 3 officers present at the scene, and all were waiting peacefully.

Yes, we have the same rules here. But, they do not generally apply to field contacts but to what you have a right to when brought to the jail or the station. You are free to make phone calls and talk to lawyers and all of that later, but at the scene of a traffic stop - even if everyone is calm and copacetic for the moment - I do not see that as being likely.

I still say you are reading it far too literally and I have yet to find an example of a Canadian case where the cops had to drop what they were doing and call an attorney to their scene. Can you find one?

Plus, from YOUR link:

[2] "Without Delay"

In this case, the combination of an arrest in the accused's home, the presence of two unknown people there, and the knowledge that two restricted weapons were in the apartment, was a potentially volatile situation. It is true the accused had the proper registration permits for the weapons, but, notwithstanding, the possibility of their use was a serious matter for a police officer to consider while taking a person into custody. The officer was justified in preventing any new factors from entering the situation until some of the unknowns had been clarified. Thus, the violation of s. 10(b) here did not occur when the officer initially prevented the accused from telephoning his counsel. But once the accused had been arrested, the weapons located, and the other two people had left, the police were clearly in control and there was no reason why they should not have allowed the accused to telephone a lawyer: Strachan v. R., 1988 CanLII 25 (S.C.C.), 1988 CanLII 25 (S.C.C.), 1988 CanLII 25 (S.C.C.), [1988] 2 S.C.R. 980.

As a general rule police proceeding to a search are not obligated to suspend the search and give a person the opportunity to retain and instruct counsel, as for example when the search is of a home pursuant to a search warrant. When the police are conducting a body search however, the matter is entirely different. In such a case, it is impossible to search without detaining the individual within the meaning of s. 10 of the Charter. The right to search incident to arrest derives from the fact of arrest or detention of the person. The right to retain and instruct counsel derives from the arrest or detention, not from the fact of being searched. Therefore, immediately upon detention, the detainee does have the right to be informed of the right to retain and instruct counsel. However, the police are not obligated to suspend the search incident to arrest until the detainee has the opportunity to retain counsel. There are exceptions to this general rule. One is where the lawfulness of the search is dependent on the detainee's consent. Another is when a statute gives a person a right to seek review of the decision to search as was the case in Simmons, 1988 CanLII 12 (S.C.C.), 1988 CanLII 12 (S.C.C.), 1988 CanLII 12 (S.C.C.), [1988] 2 S.C.R. 495. In this case, when the person invokes the right, and pending its exercise, the authority to proceed to search is suspended: R. v. Debot, 1989 CanLII 13 (S.C.C.), 1989 CanLII 13 (S.C.C.), 1989 CanLII 13 (S.C.C.), [1989] 2 S.C.R. 1140.

There is a subtle difference between "promptly" in s.10(a), and "without delay" in s.10(b). The former is a positive term and means "immediately", while the injunction of the latter is expressed in negative terms -- not to delay, or postpone, which does not necessarily convey the notion of immediacy. The interests protected by clauses (a) and (b) are not the same. With respect to clause (b), the interest is that of not prejudicing one's legal position by something said or done without, at least, the benefit of legal advice. There is therefore no essential reason why the s.10(b) information has to be part of the s.10(a) statement, as the latter is really part of the arresting process itself. Consequently, one must always have regard to the circumstances of the particular case in determining the requisite timing of the right to be informed under s.10(b): R. v. Kelly reflex, (1985), 17 C.C.C. (3d) 419 (Ont. C.A.); R. v. Debot 1986 CanLII 113 (ON C.A.), (1986), 30 C.C.C. (3d) 207 (Ont. C.A.); appeal dismissed 1989 CanLII 13 (S.C.C.), 1989 CanLII 13 (S.C.C.), 1989 CanLII 13 (S.C.C.), [1989] 2 S.C.R. 1140; Rackow v. R. reflex, (1987), 30 C.C.C. (3d) 250 (Alta. C.A.); R. v. Vautour reflex, (1987), 29 C.R.R. 268 (Nfld. C.A.).

An accused must be made aware that he can exercise his right under s.10(b) without delay -- meaning as soon as reasonably possible under the circumstances. The exact words "without delay" need not be used, as long as their meaning is conveyed to an accused in a manner he can understand: R. v. Richardson reflex, (1984), 35 Sask. R. 239 (Sask. Q.B.); R. v. Hawes reflex, (1985), 42 Sask. R. 1 (Sask. Q.B.).

In this case you presented, the prescence of a weaponwas a hazzard. The search was completed. In my situation, there was no cause for alarm, all of us were cooperative, there was more than enough police presence, and there was more than enough time to allow me to make a call. I had asked after a search was performed as well while still being detained.

I am not reading to deep into my own rights. The final paragraph of what you just posted even reads: "An accused must be made aware that he can exercise his right under s.10(b) without delay -- meaning as soon as reasonably possible under the circumstances." Well, in my circumstances, it was quite reasonably possible to allow me that call.

You may think it reasonable, clearly the officers did not. Plus, the courts in Canada seem to define "without delay" differently than you do.

So, as I mentioned originally, when you get an attorney he or she can review the case for whatever might help in your defense. Can you say how you were harmed as a result of NOT having immediate access to an attorney? Did you give in and confess to a crime? Did you consent to a search? What? From what I see you are hoping that the fact that they did not immediately contact an attorney for you will somehow wipe away the offenses for which you have been charged. Doubtful. At most, it would be a procedural issue that might be a separate matter from the criminal allegations and you could deal with that in another venue. However, from what I have read on this subject, the police here appear to have done nothing wrong.

Consult legal counsel.

Oh, and stop using dope and hanging with those that do and maybe this won't happen again.

However. ... question: You originally wrote that you were read your Miranda rights. Are you a Canadian who was popped in the US? If so, what state? Or, did this happen in Canada and you made the erroneous reference to Miranda?

If this was in the US, then all the previous discussion is moot with regard to your situation as we do not have to call attorneys to the side of the road even if it were true that in Canada they had to be.