The recent case of Osmond highlights the duties of lawyers taking calls from the police station. In
R. v. Osmond (2007), leave to appeal to the SCC dismissed, the police contacted counsel through a Brydges call to a 24-hour toll-free service. (
R. v. Brydges dealt with the duty of the police to inform detainees about the availability of duty counsel and legal aid.)
The client was under investigation for murder, but the call was handled in a routine manner and lasted two minutes. George Roswell Osmond was 21 years old, and he had been arrested for the first-degree murder of a 13-year-old girl late on a Friday afternoon in a jurisdiction in which he would not be brought to court until Monday morning.
Section 503 of the Criminal Code requires that the client be brought before a justice without unreasonable delay and within 24 hours, but, conversely, it also provides that, where a justice is not available, this merely be done as soon as possible. Osmond was at risk of being interviewed all weekend.
The client was advised he would have court on Monday and to remain silent, but was not advised how to exercise that right. He was probably also told not to speak with prisoners or undercover officers, which was the lawyer’s practice in serious criminal matters.
It was one of an average of 44 calls that the lawyer handled during his shift. The lawyer had no independent recollection of the call, although he had a form on which he had made notes.
He was covering the entire province of British Columbia, and he did not know any lawyers in the Courtenay area. The lawyer did not arrange or offer to arrange private counsel for Osmond.
Now, the old adage says that a lawyer who represents himself has a fool for a client. Osmond fancied himself a jailhouse lawyer. He thought that he could handle questioning, because he had taken “Law 12” in high school. Unfortunately, Osmond hadn’t passed Law 12.
Not surprisingly, the client tried to find out from the police what evidence they had against him, and argued that he was an unlikely suspect.
On the Friday evening, during the interrogation by a skilled investigator, Osmond confessed to beating the victim; the following morning he admitted to stabbing her. He succumbed to the officer’s stratagem that his father, girlfriend, and the community would need to know that this was unplanned, and he was not a predator.
Justice Ian Donald wrote, “He may have had an operating mind but, with respect, he was not very smart.”
A lawyer accepting a call from the station, whether retained or not, acts for the client and owes him the same duty of care as if he were retained. He must advise him of his legal rights and how to exercise those rights.
This may mean speaking on his behalf to the detective, calling the client back, contacting his family, notifying his lawyer, or even arranging counsel.
There is more to advising a client than reiterating the right to silence, as other procedures like DNA testing and lineups may be under consideration by the police. Very specific advice needs to be given in a drinking and driving case (see Alan Gold’s “The Initial Telephone Call” in Defending Drinking and Driving Cases 2007.
Osmond had been denied the timely and effective right to counsel under section 10(b), and a new trial was ordered. He needed to be informed of what his right to counsel meant - and his rights were violated not just by the police, but by the very lawyer he had consulted, who testified that, “In one sense, there’s no difference between murder and shoplifting.”
The BCCA did not find that there was a right to the presence of counsel during interrogation.
Since the Osmond case, people in British Columbia arrested for murder, manslaughter, or attempted murder are offered an enhanced Brydges service, and the on-duty lawyer will contact a senior member of the bar to provide advice to a suspect in custody. A tariff of $150-$240 has even been created for these situations.
Rosalind Conway practises criminal law in Ottawa. She can be reached at [email protected].
