THE MIDNIGHT PHONE CALL

BY

GERALD N. ALLBRIGHT, Q.C.

)
III

THE MIDNIGHT PHONE CALL

As it pertains to criminal law, the "Midnight Phone Call" is
simply a catch phrase for a situation where a legal practitioner is from
time to time called upon, in what might be termed unexpected situations
(and usually at unexpected times) to give legal advice on matters that have
an element of emergency or immediate importance to the caller.

The main point of placing such an item on the conference

agenda is to highlight the importance in such circumstances of providing
legal advice that is both accurate and useful to the client.

Often times

the tendancy in such a situation is to provide "off the cuff" advice to

such a client, without fully appreciating the seriousness and significance
of the advice which is being given.

In a normal office setting or research setting the practitioner

will have the time to resort to research tools and legal literature in
providing advice on a topic of concern to a client.

Such time and material

resources are not nearly as readily available in the pressing situation which
we are here discussing.

There are a number of general principles which come into play

as guidelines in this type of situation.

They include an appreciation on the

part of the practitioner that your advice and counsel is obviously important
to that person seeking such advice.

In attempting to assist the client it is

essential that you have an accurate working knowledge of the pertinent law
and it is equally important that you must give the individual the most accurate
assessment of the law as it applys to his or her factual situation.

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There are countless examples that might be discussed of this

particular type of situation arising, however, I have chosen to illustrate
one frequent example, that being the phone call received by a practitioner
from a police station either late at night or early in the morning from a
client who has been detained by the authorities on the suspicion of committing
a drinking and driving offence under the Criminal Code of Canada.

The individual is requesting your advice and counsel on the

issue or whether or not to provide breath samples (whether to blow or not to
blow) following a demand which has been made to him.

The following approach is suggested as an appropriate example

in advising your client.
- Appreciate that when this contact is made with you the
practitioner, that that person (client) has received
access to legal counsel as is guaranteed by the Canadian
Charter of Rights (a subsequent phone call to another
lawyer would not likely be allowed).
- Ensure that the individual is afforded the right to privacy
by the police officers during the time of the telephone
consultation with you.
- Ascertain as accurately as possible the condition of your
client, including directly asking how much alcohol has
been consumed, under what conditions, and at what time
the driving is alleged to have occurred.
- Remember to keep your advice straightforward and simple.
Point out the options that exist and the ramifications
that follow each choice. For example, I'if you don't blow
you will be charged with a criminal offence and if
convicted you will automatically lose your driver's license
for a period of time, be possessed of a criminal record and
be subject to a fine or brief imprisonment. If you do blow
and fail you will be charged with a criminal offence and
upon conviction be subject to the same results and penalties.
However, if you do blow and are under .08, you will not be
charged with either of these offences. (It is extremely
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important where an element of choice exists that the

client clearly understands the choices that are available
and the implications of each choice. If there is any
question in your mind as to whether or not the individual
fully appreciates your advice and the choices available,
take the time to repeat those alternatives.

Remember at all times that your advice and actions may be subject
to close scrutiny as a witness in subsequent court proceedings.