NOVA SCOTIA LEGAL AID
Standard Telephone Duty Counsel Checklist

Part 1 - Consult with Officer

  • If yes, who will be providing telephone duty counsel? (flag for Conflict check – ethical consideration) – decide what approach to take – refer to Conflicts tab in this QRG.

  • For impaired investigations, refer to the specialized checklist in this Quick Reference Guide at Tab.
  • For domestic violence investigations, refer to the specialized checklist in this Quick Reference Guide at Tab.

  • If the Caller is detained for a homicide or sudden death investigation – special procedures immediately come in to play:
  1. Turn to the Homicide and Other Sudden Death Investigations chapter which can be found in this Quick Reference Guide and in the Telephone Duty Counsel Manual.
  2. Follow the Recommended Course of Action for Death Investigations, which is intended to assist you:
    • in making arrangements for another lawyer to personally attend the police station; and
    • in maintaining the caller’s status quo until that counsel arrives at the police station.

1. Search & Seizure with a Warrant: What type of warrant is it?

  • Section 487 CC (conventional) warrant?
  • Section 11 CDSA warrant?
  • Section 487.092 CC warrant to take bodily prints or impressions?
  • Section 487.04 to 487.09 CC warrant to seize a bodily substance sample for DNA?
  • Section 256 CC warrant to seize blood samples (impaired investigations)?

2. Search & Seizure without a Warrant:

  • What/where are you (the police) proposing to search?
  • What investigation does the proposed search pertain to?
  • Are you seeking the caller’s consent to the proposed search or relying on a warrantless search power?
    • If seeking consent, what exactly does the officer want the caller to agree to do?
    • If a warrantless search power is being invoked, “what legal authority are you relying on to conduct the proposed search?”
    • a demand in the context of an impaired investigation? (if so, refer to the specialized Impaired checklist)
    • section 2 of the Identification of Criminal Act? (fingerprints, palm prints, photographs)
    • seizure of an item in “plain view”?
    • seizure of an abandoned item?
    • search/seizure in “exigent circumstances”?
    • search/seizure incident to an “investigative detention”?
    • search/seizure incident to arrest?

In acknowledging to the police that counsel and the caller understand the basis upon which a search will be conducted, it is important to make clear that consent is not being given for the search but that there is no intent to obstruct either.

Will the Caller be released from custody or held for Court?

  • If being released:
    • On what proposed terms & conditions?

 

  • If being detained:
    • Why being held?
    • Where will the caller be taken to Court (which Courthouse)?
    • When will the client be taken to Court? If there will be a delay, for what reason?

 

  1. Ensure privacy – “are you alone in the room?” – if anyone else present, get the officer back on the phone to move the caller or others to a separate room – “tell me immediately if you no longer have privacy”.
  2. Introduce yourself – duty counsel = lawyer – I provide temporary, immediate, free legal advice – confidential, privileged.
  3. Right to counsel of choice – you have the right to speak to any lawyer you choose – that includes a private lawyer you arrange at your own expense – “do you prefer to speak to me or to arrange a private lawyer?” — Caller must be diligent to arrange private counsel – police should allow caller to contact a third party to arrange private counsel on request.
  4. How old are you? – for Youth –> explain the right to consult with a parent, adult relative or appropriate adult chosen by the young person (146 YCJA) – explain right to have that person and a lawyer present during questioning (though NSLA provides personal attendance lawyer only for homicide/sudden death) — avoid speaking in “legalese” – at the end of the call, ask the young person to explain your advice back to you in their own words.
  5. Explain the offence(s) under investigation and the extent of the caller’s jeopardy – explain that you do not have the police file at this time – for youth explain the risk of an adult sentence for serious offences.
    • Note: This Quick Reference Guide contains specialized checklists for impaired and domestic violence investigations, as well as, helpful information for less routine calls from Border Services, Extradition Act, Conservation Officers, Fisheries Officers and Regulatory Investigations. A broader range of material can also be found in the NSLA Telephone Duty Counsel Manual.
  6. Obtain information from the Caller re: interactions with police up to time of call:
    • “How did you come in contact with police today?”
    • “When did the police read you your rights?”
    • “When did you ask to talk to a lawyer?”
    • “What has happened between you and the police since you first asked to talk to a lawyer?”
    • “What have you said to police?” – “What information have you given them?”
    • “Have the police done any searches? Describe exactly what happened.”

7. Explain the Right to Silence

  • You do not have to talk to the officers other than identifying yourself”
  • “You are under no obligation to say anything else or to answer any questions”
  • “You are not required to give any statement” – a “statement” can be written, audio or video recorded – “everything you say to the police after this phone call is over will be a statement”
  • If any statements have already been made to police à “do not make any further statements to police”
  • Exercising the right to silence does not mean you are guilty
  • Every citizen has the right to silence
  • No judge/Court can use it against you

8) Explain the why the Caller should exercise the right to silence and the consequences of giving up the right to silence:

  • Trying to explain yourself to the police right now is a mistake. Speaking to the police will not improve your circumstances.
  • You and I don’t know what evidence the police have against you – the police don’t have to tell us right now – and they don’t have to be completely truthful about what they do have.
  • The police may need to speak to you to improve their case against you. Something you say to police might turn out to be the best evidence. You don’t want to help the police make a case against you.
  • Anything you say can be used against you in court.
  • Anything you say may also provide grounds for arrest, charge, detention, search warrants, arrest (you and others).
  • The only way to protect yourself right now is to exercise your constitutional right to silence. Assert your right to silence then say nothing more.
  • Ask the Caller if he/she understands.

9) Explain how to assert the right to silence:

  •  Tell the officers you will not make any statements
  • “I have nothing to say at this time”
  • If it makes it easier, blame the lawyer – police are not allowed to undermine advice from your lawyer: “my lawyer advised me not to say anything right now and that’s what I’m going to do” or “on the advice of my lawyer, I am not answering questions”.

10) Prepare the client for police questioning/interrogation:

  • Even after you have said “on the advice of my lawyer, I am not answering questions” or ask to be taken to a Cell, the police are under no duty to retreat.
  • The police are still allowed to ask you questions – they are allowed to try to change your mind.
  • Indeed the police have a duty to ask questions. Say nothing in response to those questions.
  • You can’t stop the interview but you can choose not to participate in the questioning. If you say absolutely nothing, the police will eventually stop asking questions.
  • But if you answer any of their questions (even the seemingly “innocent” ones) they will keep asking you questions to keep you talking. The more you open your mouth and answer little, insignificant questions, the longer the interview will last. Silence actually means silence.
  • Police officers will use strategies/tactics including trickery and may even lie to you to try to persuade you to talk and give up your constitutional right to remain silent. Don’t fall for it. Say nothing.
  • Remember that while you are in custody the police are always listening – interview rooms are monitored and recorded, undercover police or police agents may strike up a conversation.
  • Don’t speak to anyone other than your lawyer (including cell mates, family or friends). You don’t control who is listening or what gets repeated. Someone is always listening.

11) Prepare the client for other investigative demands/requests – tailor your advice according to the nature of the charges – some common investigative techniques include:

o Search & Seizure with a warrant –

  • Search & Seizure with a warrant – the caller is compelled to cooperate – any challenges to warrant must take place at a later date – have caller ask to see the warrant – what type of warrant is it? – what are police authorized to do? when? where? specifics? – criminal offence to obstruct or interfere with the search/seizure in any way – do not give consent for police to search areas not covered by the warrant – be alert to how the search is carried out – exercise your right to silence — in acknowledging to the police that counsel and the caller understand the basis upon which a search will be conducted, it is important to make clear that consent is not being given for the search but that there is no intent to obstruct either. For more information consult the NSLA Telephone Duty Counsel Manual chapter on Search & Seizure.

o Search & Seizure without a warrant –

o Search & Seizure without a warrant – if the police are relying on a lawful (warrantless) search power, the caller is compelled to cooperate — any challenges to the lawfulness of the search power will have to occur at a later date – criminal offence to obstruct or interfere with the search in any way – exercise your right to silence — in acknowledging to the police that counsel and the caller understand the basis upon which a search will be conducted, it is important to make clear that consent is not being given for the search but that there is no intent to obstruct either. For more information consult the NSLA Telephone Duty Counsel Manual chapter on Search & Seizure.

o Consent to a Search & Seizure –

o Consent to a Search & Seizure – if the police are seeking the caller’s permission/consent to search, the caller has a voluntary choice – the caller is not compelled to cooperate – explain why the caller should not consent (giving up privacy rights, any evidence may be used to lay charges against the caller or others, evidence may be used in Court) – TDC should communicate the caller’s decision to withhold consent to the police. For more information consult the NSLA Telephone Duty Counsel Manual chapter on Search & Seizure.

o Cell Phones, Smart Phones, Mobile Devices –

o Cell Phones, Smart Phones, Mobile Devices – The caller has no duty to provide his/her password to police or to unlock his/her device. Refer to the NSLA Telephone Duty Counsel Manual chapter on Search & Seizure: Specific Kinds of Searches. Different considerations come into play at a border crossing — see also “Calls From Canada Border Services” in this Quick Reference Guide.

o Sobriety tests –

o Sobriety tests – failure to cooperate will attract a refusal charge – best advice is to cooperate (more defences available) – refer to the Specialized Impaired Checklist in this Quick Reference Guide – consult the Impaired section in the NSLA Telephone Duty Counsel Manual.

o Breath samples –

o Breath samples – demand made? – “criminal offence to refuse” – “not required to answer questions” – “don’t answer questions” — refer to the Specialized Impaired Checklist in this Quick Reference Guide – consult the Impaired section in the NSLA Telephone Duty Counsel Manual.

o Blood, Urine samples –

o Blood, Urine samples – warrant? – review the warrant – if no warrant, request should be refused unless blood demand made where breath samples are not possible (physician required until Bill C-46 in force) — refer to the Specialized Impaired Checklist in this Quick Reference Guide – consult the Impaired section in the NSLA Telephone Duty Counsel Manual.

o Polygraph/lie detector –

o Polygraph/lie detector – do not participate — consult the Right to Silence section in the NSLA Telephone Duty Counsel Manual.

o DNA

o DNA (saliva, semen samples) – warrant? – review the warrant – if no warrant, requests should be refused (unless blood demand in impaired investigation – if so, refer to the Specialized Impaired Checklist in this Quick Reference Guide) — “ do not volunteer it or consent to provide a sample” – “do not abandon water cups, cigarette butts, tissues, etc.” — consult the Search & Seizure chapter in the NSLA Telephone Duty Counsel Manual.

o Fingerprinting

o Fingerprinting – not required for mere detention – required where arrested for an indictable or hybrid offence.

o Handwriting samples –

o Handwriting samples – not required to provide – persons charged with fraud/forgery may wish to print (rather than sign) their name on any release documents.

12) Explain next steps for regaining liberty – review the terms & conditions proposed by police – if being held for Court, explain what happens next (24 hour detention rule) and that police do not decide if detention is required (only a judge can do that) – explain availability of Duty Counsel to assist with bail.

13) Advise the Caller to (following release) collect and preserve evidence relevant to his/her defence – photograph injuries – seek medical attention.

14) Explain the importance of retaining permanent counsel and how to apply for NS Legal Aid (on-line application on the NSLA website).

15) Ask the caller if he/she has questions — “Is there anything you want to ask me?”

16) Explain the limits on the right to re-consult a lawyer

  • ask to call me back or to speak to another lawyer if any new questions arise while you are in police custody or there is anything you don’t understand
  • but after we have spoken, the police may or may not let you call me back or call another lawyer — this may be the only call the police are required to give you
  • there are only a few situations in which the police are required to let you re-consult a lawyer:
    • When new procedures are introduced (eg: being asked to participate in a lineup or provide DNA);
    • There is a change in your legal jeopardy (when the investigation leads to more serious allegations eg: the victim of an assault has died); or
    • it becomes clear that you may not have understood the right to counsel or your choices:
      • if at any point you are not satisfied with the contact you have had with me or with the adequacy of the advice received, tell the police that is why you want to call me back or you want to speak to another lawyer.