A Charter Right To Search Google?

The Internet has transformed society in so many ways. Even the ways we find information and the sources we rely upon have been fundamentally transformed. It appears our legal systems need to adapt to this new reality.

In R. v. McKay, 2013 ABPC 13 (CanLII) the Alberta Provincial Court had the occasion to consider these issues in the context of a charge under the Criminal Code. The accused had been pulled over, a breathalyzer was applied and then he was taken to the police station. At the police station he was given a toll-free number, to the Yellow Pages and the 411 service.

The accused made a toll-free call but was not satisfied with it and did not realize he still had a right to counsel. After further testing was done on the accused he was charged under s. 253(1)(a) and 253(1)(b) of the Criminal Code.

In a voir dire proceeding the accused alleged a breach of his rights under Sections 7, 8 and 10 of the Charter of Rights and Freedoms and specifically that he was not given a reasonable opportunity to exercise his right to counsel and that the accused was not provided with a full range of resources and access to sources of information which reasonably were or ought have been made available to him to contact a lawyer, including Internet access.

In assessing the evidence before the Court Judge Lamoureux stated:

"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.

So what happens when a 19-year-old is arrested and has never faced the prospect of trying to get legal...