Standard Telephone Duty Counsel Checklist

Part 1: Consult with the officer

Remember these important considerations:

Priority is given to youth,
The right to consult a parent (or other adult not co-accused),
The right to silence (this may need to be reinforced to the adult from 2),
Explain what constitutes a statement and not to make one,
Explain the risk of an adult sentence,
Avoid “legalese”, speak to be understood,
Detention is a last resort,
Refer to the “Nova Scotia Pocket Guide to the YCJA” for more information.

For example: language, intoxication, mental illness or mental challenges.
Standard Calls
The information in this section relates to all standard calls.
If being taking to court which courthouse, and when? If there will be a delay indicate why.
Homicide/Sudden Death Investigations

Telephone Duty Counsel must arrange Personal Attendance

  1. Ask the officer if the police have offered the caller a reasonable opportunity to contact counsel of choice.
  2. Advise the officer that you are not able to provide appropriate advice to the caller over the telephone.
  3. Advise the officer that you will make arrangements for alternate counsel to attend at the police station for a face-to-face consultation with the caller.
  4. Determine from the officer the specific location where the caller is being detained.
  5. Ask the officer to hold the line (or obtain the officer’s name, location and call back information) while you arrange counsel to attend the police station.
  6. Consult the Lawyers Willing to Attend with a Client for Homicide or Other Sudden Death Investigations List.  (link here)
  7. Once you have arranged a lawyer to provide personal attendance, inform the police officer of that lawyer’s name, cell phone number and estimated time of arrival.
  8. Ask to speak to the caller over the telephone pending the arrival of personal attendance counsel.  Make it clear to the officer that your conversation with the caller does not constitute fulfillment of the 10(b) right to counsel as you are not in a position to provide appropriate advice over the telephone.Confirm the officer understands and will permit the caller to meet face-to-face with personal attendance counsel.Secure the officer’s undertaking that police will hold-off eliciting evidence from the caller until the caller has met face-to-face with personal attendance counsel.
  9. Advise the caller that:
    1. A lawyer is on the way,
    2. Police are obligated to hold off questioning and making other demands until the caller has had the opportunity to have a face-to-face meeting with the lawyer,
    3. The caller has a constitutional right to silence,
    4. The nature of homicide charges and their potential consequences,
    5. If possible for the TDCM to remain on the phone with the caller they should do so – if not ask if they have any questions.

The best advice in these investigations is to recommend declining to speak with the investigator at this time – that is until permanent counsel is retained and that permanent counsel can discuss the investigation directly with the assigned investigator.

Impaired Driving Investigations
How many other vehicles? Damage? Occupants of those vehicles? Injuries or deaths? How serious are the injuries? Life threatening? Any pedestrians involved? Injuries or deaths? How serious are the injuries? Life threatening?
There should be legitimate grounds for the demand made within a reasonable amount of time. Please note any concerns or outcomes related to these demand requests.

The standard advice applies:

  1. You do not have to say anything beyond identifying yourself.
  2. You do not have to tell the police how much you have had to drink.
  3. Explain the CC offences that pertain to impaired investigations.
  4. Explain the consequences upon conviction for a CC impaired driving offence. (immediate and under conviction).
  5. The caller is only required to provide breath or blood samples (depending on the demand) or perform the physical aspects of a DRE.
Domestic Violence Investigations
Marital status. Where do the parties reside? Are there children and where do they live? Are there any existing agreements or court orders relating to the parties or children? Explain the police and Crown policies in regards to domestic violence investigations. Reiterate the right to silence and encourage any interactions the caller must have with police to be polite and to maintain composure.
Border Services
Screening at the Border Point – Persons entering Canada are required to report themselves at the border point, answer questions truthfully, declare goods they are carrying, and may be subject to a search with or without grounds. Discovery of Criminal Contraband triggers the Right to Silence Search of Personal Electronics at the Border - currently is required for local storage only, not cloud-based storage.  People are required to unlock their devices when requested. For other situations please refer to the Quick Reference Guide or Telephone Duty Counsel Manual.
Right to Silence -- TDCM should caution the caller not to embark on any discussion with the police, whether about the extraditable offence or otherwise. The Caller should arrange Permanent Counsel -- The caller should also be advised to retain permanent counsel.
Conservation (Wildlife Act)
TDCM should speak to the officer to confirm:
  1. The names of the officers conducting the search and contact information;
  2. What/where the officers will search;
  3. The authority the officers are relying on to conduct the search (warrant or warrantless search power?);
  4. Who will be in charge of any seized material after the search is completed;
  5. Whether the caller will be detained during the search and, if so, will the caller be free to leave once the search has been completed?
  TDCM should provide all of the above information to the caller and also:
  • Ask the caller what the Conservation Officer has told him/her about the reasons for the search.
  • Advise the caller that it is not possible to prevent the search. However, the grounds for the search and the manner in which the search is carried out may be challenged in Court at a later date.
  • Advise the caller that any seized hunting equipment (eg: vehicles and supplies) may be returned or released upon posting a bond pursuant to section 98 of the Wildlife Act. The caller should retain permanent counsel to immediate address this issue.
Aboriginal Harvesters – Mi’kmaq of Nova Scotia harvesters have aboriginal and treaty rights to hunt and fish and do not require provincial hunting and fishing licenses or follow provincial seasons.  Individuals must have a federal Indian status card associated with a Mi’kmaq of Nova Scotia First Nation.
TDCM should speak to the officer to confirm:
  1. The name and contact information of the officer;
  2. Determine what is being requested of the caller;
  3. Determine whether any requests (eg: requests for log information) can be deferred until another day when permanent counsel can be retained to respond with the client;
  4. What plans does the officer have for the seizure and sale of any catch (carefully document the officer’s response verbatim)
  TDCM should provide all of the above information to the fisher and also:
  • Advise the fisher to provide no explanations to the fisheries officer (or anyone else) until permanent counsel has had an opportunity to make a more thorough analysis of the alleged violations.
  • Many offences under the Fisheries Act and its associated regulations may be defended on the basis that “due diligence” was exercised. However, the fisher should not attempt to lay that foundation at first contact with the fisheries officer rather the fisher should discuss his/her efforts to comply with permanent counsel.
  Aboriginal Harvesters –Mi’kmaq of Nova Scotia harvesters have aboriginal and treaty rights to hunt and fish and do not require provincial hunting and fishing licenses or follow provincial seasons.   Individuals must have a federal Indian status card associated with a Mi’kmaq of Nova Scotia First Nation.
Other Regulatory
TDCM should: Speak to the enforcement officer:
  • Obtain the following information:
  1. Names of the officers entering the premises
  2. The legislative or regulatory authority under which the inspectors are purporting to act and the purported object of the search
  3. An inventory of anything seized and to be carried away by the authorities; and
  4. Contact information for the individual in charge of the inspection and who will be in charge of the seized material after the search has been completed.
  • Ask whether the client will be detained during the search
  • If so, will the client be free to leave once the search has been completed?
  Advise the caller
  1. Legislation authorizing regulatory searches usually includes penalties for obstruction of public authorities (ie: enforcement officers).
  2. While there may be a legal requirement to provide certain items to the inspectors (eg: a fishing log), there is no general obligation to explain anything that the authorities might decide to seize.
  3. The caller should not make an effort to explain anything.
  4. The caller should understand the right to remain silent and not to self-incriminate generally relates to any explanations that might be given.
  5. In acknowledging to the police that counsel and the caller understand the basis upon which the 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.
Part 2: Consult with the caller
  1. Ensure privacy,
  2. Introduce yourself,
  3. Right to counsel of choice,
  4. If youth advise of right to consult adult,
  5. Explain offense(s) under investigation and extent of the caller’s jeopardy,
  6. Obtain information from the caller (enter in notes section below):
  1. Explain the right to silence,
  2. Explain why the caller should exercise the right to silence and consequences of giving up the right to silence,
  3. Explain how to assert the right to silence,
  4. Prepare the caller for questioning/interrogation,
  5. Prepare the caller for other investigative demands/requests:
    1. Search and seizure with  a warrant,
    2. Search and seizure without  a warrant,
    3. Consent to a search and seizure,
    4. Cell phones, smart phones and mobile devices,
    5. Sobriety tests,
    6. Breath samples,
    7. Blood and urine samples,
    8. Polygraph/lie detector,
    9. DNA,
    10. Fingerprinting,
    11. Handwriting samples.
  6. Explain next steps for regaining liberty,
  7. Advise the caller to collect and preserve evidence,
  8. Explain the importance of retaining permanent counsel,
  9. Ask the caller if he/she has questions,
  10. Explain the limits on the right to re-consult a lawyer.
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