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Charter - Section 10(b) Right to Counsel
MORE CASES
Part 2
. R. v. Edwards [informational component]
In R. v. Edwards (Ont CA, 2024) the Court of Appeal considered (and allowed) a Crown appeal of an 'over 80' drunk driving summary conviction.
Here the court considers the 'informational component' of the Charter s.10(b) right to counsel:[19] The informational component of s. 10(b) requires the police to advise the detainee of the availability of Legal Aid/duty counsel: R. v. Brydges, 1990 CanLII 123 (SCC), [1990] 1 S.C.R. 190; R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173. The SCAC concluded that in addition to telling the detainee he had a right to speak with duty counsel, the police were also obliged to tell the detainee that he was entitled to wait a reasonable time for his counsel of choice to respond before choosing to speak with duty counsel. The SCAC held, at para. 72:In this case, it is undisputed that the officers never advised Mr. Edwards that he could wait a reasonable time for his counsel of choice to call back. Their actions also left him with the impression that he could not wait any longer and so his only option was the duty counsel advice he had already received. The failure of the trial judge to even consider these informational breaches was clearly an error in law. Moreover, had the trial judge considered the issue, there could be no dispute that as a result, there was a clear failure of police to fulfil their informational obligation to Mr. Edwards and thus a violation of his s. 10(b) rights. [Emphasis in original.] [20] The informational breach of s. 10(b) found by the SCAC is identical to the informational breach of s. 10(b) identified in Prosper. The facts of that case were, however, different. In Prosper, the police made a breathalyzer demand. The detainee asserted his right to counsel. He was given a list of names of counsel who he could speak with on the telephone. After unsuccessfully attempting to contact all of the lawyers on the list, the detainee was offered a telephone book so he could look up the names of “private lawyers”. The detainee declined to make further attempts to contact counsel, indicating he could not afford to pay a “private lawyer”. The detainee agreed to forgo his right to counsel and take the breathalyzer test.
[21] The majority held that the detainee’s purported waiver of his right to counsel was ineffective in the circumstances. An effective waiver required that the detainee be told that the police could not administer the breathalyzer until the detainee had a reasonable opportunity to contact counsel. In the words of Lamer C.J.C., at p. 274:In circumstances where a detainee has asserted his or her right to counsel and has been reasonably diligent in exercising it, yet has been unable to reach a lawyer because duty counsel is unavailable at the time of detention, courts must ensure that the Charter-protected right to counsel is not too easily waived. Indeed, I find that an additional informational obligation on police will be triggered once a detainee, who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice. At this point, police will be required to tell a detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity. [Emphasis added.] [22] The holding in Prosper is explained in Willier. In Willier, after an unsuccessful attempt to contact counsel of choice, the detainee was advised that it was unlikely he would be able to contact his lawyer until the next day. The police reminded the detainee of the immediate availability of duty counsel. The detainee chose to speak with duty counsel and expressed satisfaction with the advice he received. The police proceeded to question the detainee after he had spoken with duty counsel.
[23] In Willier, the detainee, relying on Prosper, argued that he should have been told he was entitled to wait a reasonable amount of time to permit his lawyer of choice to respond before speaking with duty counsel. The majority in Willier distinguished Prosper, holding that the additional informational requirement in Prosper applied only where a detainee was diligent but unsuccessful in contacting counsel and subsequently declined counsel. In short, Prosper was a waiver case. The “additional informational obligation” laid down by Lamer C.J.C. was intended to ensure that the waiver of the right to counsel was both informed and effective. In Willier, there was no waiver. The detainee had elected to exercise his right to counsel by speaking with duty counsel. The majority said, at para. 39:The concerns animating the provision of a Prosper warning do not arise when a detainee is unsuccessful in contacting a specific lawyer and simply opts to speak with another. In no way did Mr. Willier attempt to relinquish his right to counsel and thus any opportunity to mitigate his legal disadvantage. He made no attempt to waive his s. 10(b) right. Instead, unsuccessful in contacting Mr. Royal, he exercised his right to counsel by opting to speak with Legal Aid. As such, the police were under no obligation to provide him with a Prosper warning, and its absence fails to establish a Charter breach. [24] Willier applies in this case. The respondent, having been unsuccessful in contacting counsel of choice, chose to exercise his right to counsel by speaking with duty counsel. There was no waiver and, hence, no concern about the validity of any waiver.
[25] R. v. McCrimmon, 2010 SCC 36, [2010] 2 S.C.R. 402, released at the same time as Willier, adopts the same reasoning. In McCrimmon, the detainee indicated he wished to speak with a named lawyer. The police attempted, unsuccessfully, to contact that lawyer. The detainee advised the investigating officer that he was unsure whether the named lawyer would return the call. The officer asked the detainee if he would like to speak with a Legal Aid lawyer. The detainee replied that he would, but that he would prefer to speak with named counsel. The detainee then spoke privately with duty counsel for about five minutes, after which he was questioned by the police. In rejecting the submission that the detainee’s rights under s. 10(b) had been breached, the majority said, at para. 19:While Mr. McCrimmon expressed a preference for speaking with Mr. Cheevers [the lawyer], the police rightly inquired whether he wanted to contact Legal Aid instead when Mr. Cheevers was not immediately available. Mr. McCrimmon agreed, exercised his right to counsel before the interview began, and expressed satisfaction with the consultation. He also indicated an awareness of his rights at the commencement of the interview. In these circumstances, there was no further obligation on the police to hold off the interrogation until such time as Mr. Cheevers became available. [26] Counsel for the respondent submits that even if Prosper is not directly controlling, the right to counsel of choice requires that the police not do anything to mislead the detainee about his right to a reasonable opportunity to contact counsel of choice. Counsel argues that if the police intentionally or unintentionally suggest to the detainee that he should or must forgo his right to counsel of choice in order to speak with duty counsel, the police conduct will violate s. 10(b). Counsel further contends that in some circumstances, and this case presents one example, the only way the police could avoid misleading the respondent was to specifically tell him he was entitled to wait a reasonable time for his counsel of choice to return the call before choosing to speak with duty counsel.
[27] The right to counsel in s. 10(b) clearly includes the right to a reasonable opportunity to contact counsel of choice. Police conduct which interferes with a detainee’s ability to contact counsel of choice within a reasonable time will amount to an infringement of s. 10(b). Counsel has provided this Court with several cases involving allegations that the police conduct led the detainee to believe that he had to either speak with duty counsel when offered, or forgo the opportunity to consult with counsel: e.g. see R. v. Vernon, 2015 ONSC 3943, 88 M.V.R. (6th) 84, leave to appeal refused, 2016 ONCA 211; R. v. Lewis, 2019 ONSC 5919, 451 C.R.R. (2d) 190, at paras. 38-41. In those cases, trial judges had made findings that the conduct of the police led the detainee to believe that his only option was to speak with duty counsel, and that waiting to speak with counsel of choice was no longer a viable option: see also Willier, at para. 43. . R. v. Edwards
In R. v. Edwards (Ont CA, 2024) the Court of Appeal considered (and allowed) a Crown appeal of an 'over 80' drunk driving summary conviction, here after an earlier Summary Conviction Appeal Court (SCAC') appeal ordered a new trial.
The court considers some basics of the Charter s.10(b) 'right to counsel':[13] Section 10(b) of the Charter provides:Everyone has the right on arrest or detention
(b) to retain and instruct counsel without delay and to be informed of that right [14] Section 10(b) guarantees to persons detained by the police the right to contact and consult with counsel without delay. The right is intended to mitigate the legal jeopardy and psychological disadvantage inevitably flowing from detention by the police: R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at paras. 27-28.
[15] To serve its intended purpose, s. 10(b) requires that the police inform a detainee of the right to retain and instruct counsel without delay and of the availability of duty counsel. If a detainee indicates a desire to exercise the right to retain and instruct counsel, the police must, absent urgent and dangerous circumstances, afford the detainee a reasonable opportunity to exercise that right. The police must refrain from attempting to elicit evidence from the detainee until he has had a reasonable opportunity to speak with counsel, again except in cases of urgency or danger: Willier, at para. 29; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 38; R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236, at p. 269. . R. v. Edwards [mutual duties of contact]
In R. v. Edwards (Ont CA, 2024) the Court of Appeal considered (and allowed) a Crown appeal of an 'over 80' drunk driving summary conviction.
Here, the court considers the "obligation on the police to facilitate contact with counsel and the responsibility of the detainee to take reasonable steps to contact counsel work in tandem", as an aspect of the Charter s.10(b) right to counsel:[36] The obligation on the police to facilitate contact with counsel and the responsibility of the detainee to take reasonable steps to contact counsel work in tandem. The police must make reasonable efforts to connect the detainee with counsel of choice “without delay”: Willier, at para. 29. The detainee must exercise reasonable diligence in his or her efforts to connect with counsel of choice: Willier, at para. 33; R. v. Ghotra, 2020 ONCA 373, 388 C.C.C. (3d) 416, at paras. 33, 38-41, aff’d 2021 SCC 12, 405 C.C.C. (3d) 160. Both obligations are tested against reasonableness-based standards: R. v. Tremblay, 1987 CanLII 28 (SCC), [1987] 2 S.C.R. 435, 37 C.C.C.(3d) 565; Bartle, at p. 192; R. v. Richfield (2003), 2003 CanLII 52164 (ON CA), 178 C.C.C. (3d) 23 (Ont. C.A.).
[37] The language used in some cases suggests a different test if the police have assumed control over the means by which counsel can be contacted, as for example in this case when the police took the respondent’s cellphone. Those cases speak in terms of the police having to pursue access to counsel as “diligently” as the detainee would personally have done so. This language suggests a personalized or subjective component to the requirements imposed on the police by s. 10(b), and raises the possibility that the police could act reasonably in attempting to contact counsel and yet still breach s. 10(b) because, despite acting reasonably, they failed to do something the accused would have done to contact counsel: see R. v Jarrett, 2021 ONCA 758, 498 C.R.R. (2d) 38, at para. 43; R. v. O’Shea, 2019 ONSC 1514, 372 C.C.C. (3d) 352, at para. 42; R. v. Doobay, 2019 ONSC 7272, 61 M.V.R. (7th) 225, at paras. 30-31; R. v. Maciel, 2016 ONCJ 563, 32 C.R. (7th) 174, at paras. 42-43; R. v. Ali, 2018 ONCJ 203, 29 M.V.R. (7th) 143, at paras. 57-59, aff’d 2020 ONSC 1005, 63 M.V.R. (7th) 323.
[38] On my reading, these authorities do not intend to, and more importantly could not as a matter of law, depart from the “reasonable diligence” standard repeatedly accepted in the Supreme Court of Canada jurisprudence: Willier, at paras. 33-35; McCrimmon, at para. 17.
[39] As I read the cases, while they refer to acting as “diligently” as the detainee would have acted, they also refer to the detainee as using reasonable diligence in seeking out counsel: e.g. see Ali, at paras. 58-59. In other words, the diligent detainee in the circumstances is a detainee who acts with “reasonable diligence”.
[40] I would also observe that there are significant difficulties in applying a diligence standard that would incorporate the steps a particular detainee would take in a given situation. The police would in most cases have no way of knowing what the detainee would have done in the specific situation, and therefore no way of knowing how they could properly comply with their obligation under s. 10(b). However, if the police obligation is measured strictly in terms of reasonable diligence, the police should have no difficulty in understanding the requirements imposed by that obligation in any given situation.
[41] A subjective test which looks to the detainee’s particular expectations could also undermine the very purpose of s. 10(b). There are situations in which a particular detainee would do nothing to contact counsel of choice, other than wait for the police to do so. The protection afforded by access to counsel would be significantly diminished, if the police were to be absolved of their responsibility to take reasonable steps to connect a detainee with counsel, in cases where the police had assumed control over contact, simply because on the evidence, the detainee would not have taken any reasonable steps to contact counsel.
[42] The purpose of s. 10(b) is best served by testing police compliance with their requirements against the reasonable diligence standard. That standard will, of course, reflect the particular circumstances of the case, including the extent to which the police have assumed control of the detainee’s ability to contact counsel. If the police assume that control, it is reasonable to expect that the police will take a more active role in contacting counsel.
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[48] I find no error in the trial judge’s conclusion that the police waited a reasonable time before proceeding with the breathalyzer test. Reasonableness is not simply a measure of time, but looks to the circumstances of the case: Willier, at para. 35. In this case, the police waited an hour from the respondent’s first attempt to contact counsel until they required the respondent to provide a breath sample. In that hour, three attempts were made to contact counsel of choice, the respondent declined an offer to contact other counsel, and the police put the respondent in contact with duty counsel, who spoke with the respondent for some seven minutes. On the evidence accepted by the trial judge, the respondent was satisfied with the advice provided by duty counsel. The fact the respondent received legal advice with which he was satisfied, while waiting for counsel of choice to contact him, was a relevant consideration in determining whether the police waited a reasonable time for counsel of choice to call back. . R. v. Brunelle
In R. v. Brunelle (SCC, 2023) the Supreme Court of Canada usefully summarizes the Charter s.10(b) 'right to counsel' protection:(i) Applicable Law
[80] Section 10(b) of the Charter provides that everyone has the right on arrest or detention “to retain and instruct counsel without delay and to be informed of that right”. In R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, Lamer C.J. summarized the three duties that this provision imposes on the police:(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;
(2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and
(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).
(p. 192, citing R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, at pp. 1241‑42; R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, at p. 890; R. v. Brydges, 1990 CanLII 123 (SCC), [1990] 1 S.C.R. 190, at pp. 203‑4.) [81] The purpose of these three duties is to protect any person whose detention puts them in a situation of vulnerability relative to the state (R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 2 and 40‑41). While under the control of the police, the person suffers a deprivation of liberty and is at risk of involuntary self‑incrimination (R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 22, citing Bartle, at p. 191).
[82] Although the first duty is triggered immediately upon detention (Suberu, at para. 41), the second and third duties arise only if the detainee indicates a desire to exercise their right to counsel. Where this is the case, the police are under a constitutional obligation to facilitate access to counsel at the first reasonably available opportunity and to refrain from eliciting evidence from the detainee until that time (Manninen, at pp. 1241‑42; Taylor, at paras. 24 and 26).
[83] Whether the delay between the time a detainee indicates a desire to exercise their right and the time the detainee exercises it is reasonable is a factual and highly contextual inquiry (Taylor, at para. 24). Barriers to access or “exceptional circumstances” that justify briefly suspending the exercise of the right cannot be assumed; they must be proved (para. 33; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 74; R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, at pp. 998‑99). The burden is always on the Crown to prove the circumstances, exceptional or not, that make the delay reasonable (Taylor, at para. 24).
[84] Before applying these principles to the facts, I think it necessary to reiterate that the law does not as yet impose a specific duty on police officers to provide their own telephones to detainees or to have inexpensive devices on hand so that detainees can exercise their right to retain and instruct counsel without delay (Taylor, at paras. 27‑28). . R. v. Corner
In R. v. Corner (Ont CA, 2023) the Court of Appeal briefly considered the Charter s.10(b) right to counsel doctrine:[77] I also agree with the trial judge that there was no s. 10(b) breach during the brief physical detention. A brief delay in implementing the s. 10 rights to allow the police to address safety concerns does not run afoul of the immediacy requirement in s. 10: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 42; R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 26.
[78] As the trial judge observed, it would hardly promote the purpose of s. 9 or s. 10 of the Charter if persons were detained even when there was no longer any reason to detain them, solely so that they could be advised of their constitutional rights upon detention. When the basis for a brief physical detention is gone, the police should release the detainee, not continue what would be an unlawful detention for the purposes of advising the detainee of his s. 10 Charter right. . R v. Haist
In R v. Haist (Ont CA, 2023) the Court of Appeal considered the Charter s.10(b) 'right to counsel', and the effect of delay in achieving it:[14] In our view, the trial judge did not err in holding that the delay in providing advice about the appellant’s right to counsel, caused by P.C. Lawrie making the breath sample demand, did not violate the appellant’s s. 10(b) Charter rights.
[15] As this court noted in R. v. Quansah, 2012 ONCA 123, 286 C.C.C. (3d) 307, at pp. 22 and 26:So long as the demand is validly made pursuant to s. 254(2) – that is, so long as it is made “forthwith” – for Charter purposes there is no unjustified seizure or arbitrary detention or breach of the requirement to advise the detainee of his or her right to counsel.
[T]he constitutional validity of s. 254(2) depends on its implicit and explicit requirements of immediacy. This immediacy requirement is implicit for the police demand for a breath sample and explicit for the mandatory response: the driver must provide a breath sample “forthwith”. The term “forthwith” in s. 254(2), therefore, means “immediately” or “without delay” and indicates a prompt demand by the peace officer and an immediate response by the person to whom that demand is addressed. ....
[18] Nor did the trial judge err in concluding that the delay in implementing the appellant’s access to her counsel did not violate the her s. 10(b) right. The steps taken at the roadside and at the police station were necessary and appropriate, given the location and circumstances of the arrest and the unfolding of events. Both officers and detainees are protected by a policy that requires two officers, in tandem, to transport a prisoner to the police station. . R. v. Lira
In R. v. Lira (Ont CA, 2023) the Court of Appeal considered a criminal appeal where the defendant argued that their right to counsel [Charter 10(b)] was unduly delayed, here in light of the leading case of R. v. Rover (Ont CA, 2018):[4] On appeal, the appellant only maintains the s. 10(b) argument. He argues that the trial judge erred in finding that his s. 10(b) Charter rights were not infringed by the lengthy delay after his arrest in allowing him to contact counsel.
[5] When the appellant was arrested, he was immediately advised of his right to counsel. However, the lead investigating officers delayed allowing the appellant to contact counsel. The trial judge found that after the appellant’s arrest, the lead officers had considered the issue of delaying the appellant’s access to counsel and made a case-specific decision that the delay was justified due to concerns about police and public safety and preservation of evidence. The trial judge found that the exception allowing for delay in implementing the right to counsel, enunciated by this court in R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, applied.
[6] The crux of the concerns for police and public safety and preservation of evidence accepted by the trial judge as reasonable justification for delaying implementation of the right to counsel focused on the fact that two firearms had been used in the robberies under investigation; that after the appellant’s arrest one of those firearms was still unaccounted for; that following the arrest, the police wanted to execute a search warrant at the appellant’s residence, but did not initially have confirmation of his address or yet have a search warrant; and that the circumstances of the appellant’s unplanned arrest gave rise to concerns that he may have been in a position to contact a third party regarding removal or destruction of evidence – in particular, the firearm.
[7] Although the trial judge did not find a Charter breach, she went on to find that, even if the appellant’s s. 10(b) rights had been infringed by the delay in implementing the right to counsel, considering all of the circumstances, she would not exclude the evidence seized at the time of the appellant’s arrest, which was prior to the delay in implementing the right to counsel.
[8] The appellant argues, with the assistance of duty counsel, that the trial judge erred in finding that the circumstances of this case fall within the exception, set out in Rover, to justify a delay in the implementation of the right to counsel based on police or public safety or the preservation of evidence.
[9] In Rover, this court held that in some circumstances, a delay in providing a detainee access to counsel may be justified. Circumstances where a delay may be justified often relate to police safety, public safety, or the preservation of evidence in the context of search warrants. Rover emphasized two requirements to delay implementing access to counsel. First, general or non-specific concerns applicable to virtually any search cannot justify delaying access to counsel. Rather, the police may only delay access to counsel after an assessment of the specific circumstances in the particular case that provide a reasonable basis to conclude that police safety, public safety, or the preservation of evidence justifies some delay in granting access to counsel. Second, even where case-specific circumstances exist that justify delay in granting access to counsel, the police must also take reasonable steps to minimize that delay.
[10] We see no error in the trial judge’s finding that the first branch of the Rover exception was satisfied in that the Crown had established a case-specific reasonable basis to conclude that police safety, public safety, and the preservation of evidence justified some delay in granting access to counsel. The findings of the trial judge were amply supported on the record before her.
[11] With respect to the second branch of Rover – the obligation to take reasonable steps to minimize the delay – it is arguable that the steps taken by police to minimize delay were insufficient. In particular, there was some weakness in the evidence regarding whether the officers heading the investigation considered “freezing” the residence of the appellant prior to obtaining the search warrant (i.e., taking control of the residence, removing any occupants, and stationing officers to prevent entry). The lead officers accepted that had this step been taken, it would have alleviated police concerns about safety and preservation of evidence. However, there was also some evidence raising questions about whether there was officer manpower available at the relevant time to take this step.
[12] The trial judge recognized that there was some weakness in the evidence on the issue of minimization of delay. Ultimately, she concluded that the delay in implementing the right to counsel in this case was “a close call”, but found that the appellant’s right to counsel had not been infringed.
[13] It is not necessary in the circumstances of this case to decide whether, given that some delay in implementing the right to counsel was justified, the police failed in their duty to minimize the amount of delay. Regardless of whether the police steps to minimize delay under the second branch of Rover fell short, we see no error in the trial judge’s conclusion that, even if there was a s. 10(b) breach, the evidence from the earlier search incident to arrest should not be excluded.
[14] We will not review all of the factors that led the trial judge to this conclusion. The most critical is that the evidence the appellant sought to have excluded was obtained at the time of the search incident to his arrest, prior to the delay in implementing the right to counsel. The trial judge found that the arrest was lawful and supported by reasonable and probable grounds, a finding which the appellant does not challenge. As the trial judge correctly noted, there was no causal link between the evidence the appellant sought to exclude, which had been found at the time of arrest, and the later delay in implementation of the right to counsel. Although a causal link is not a necessary condition for exclusion of evidence under s. 24(2), the absence of a causal link is a factor that may mitigate the impact of a Charter breach and reduce the need to exclude evidence: R. v. Griffith, 2021 ONCA 302, 408 C.C.C. (3d) 244, at para. 71; R. v. O’Brien, 2023 ONCA 197, 424 C.C.C. (3d) 108, at para. 61. . R. v. O'Brien
In R. v. O'Brien (Ont CA, 2023) the Court of Appeal considered the effect of a s.10(b) ['right to counsel'] breach:[46] In contrast, the s. 10(b) breach was impactful. Not only was Mr. O’Brien not advised of, or provided with, the right to counsel when detained, the police conscripted him as a source of information that could be used against him in his own investigation, without first providing him a reasonable opportunity to consult counsel.
[47] The trial judge found that the impact of this s. 10(b) breach was lessened in significance because “[l]egal advice options would have been limited at that point and would not have brought the lawful search to an end”. With respect, this understates the impact of the s. 10(b) violation.
[48] First, even where apparent legal options may be limited, such as where breath demands have been made in alcohol-driving cases that must be complied with, this does not lessen the impact of a s. 10(b) breach. Neither the right to consult counsel or its importance is contingent on the prospect that the advice will have a significant impact in ameliorating the legal peril the accused is facing. In any event, Mr. O’Brien provided his passwords because he felt compelled to do so. Had he received legal advice he may have discovered that he was not required to furnish them.
[49] In addition, the right to counsel serves a range of interests that go beyond the receipt of substantive legal advice, including providing a “lifeline to the outside world” (R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561 (C.A.), at para. 105), educating the subject about the “procedures brought to bear”, such as bail release, and ensuring that the subject is not entirely at the mercy of the police while detained” (R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135 (C.A.), at para. 45). Mr. O’Brien did not enjoy these benefits because of the s. 10(b) breach.
[50] The primary impact of the s. 10(b) breach, however, arises from the fact that Mr. O’Brien was conscripted to assist in the investigation against him by providing his passwords, without having had a reasonable opportunity to consult counsel. As I have explained, the police wanted the password as a means of gaining access to incriminating information. By asking Mr. O’Brien to provide that password they were seeking self-incriminating information from him. The indignity of being conscripted to assist in one’s own incrimination in this way, in violation of s. 10(b) of the Charter, is not an insignificant deprivation of Mr. O’Brien’s Charter-protected interests, even in the absence of a causal connection between that breach and the evidence sought to be admitted. . R. v. Simpson
In R. v. Simpson (Ont CA, 2023) the Court of Appeal comments on a key aspect of the Charter s.10(b) right to counsel:[10] We cannot say that the trial judge’s interpretation of the conversation between the appellant and Officer Hutchings rises to this level of error. Officer Hutchings gave a proper s. 10(b) warning immediately after the appellant was detained. The appellant gave an unequivocal answer that he understood what he had just heard. Then, in response to the question about whether he wanted to speak to a lawyer he said, “I will at some point”.
[11] As per R. v. Taylor, 2014 SCC 50, at para. 24, the duty on police to implement contact between a detainee and counsel arises only if the detainee expresses a desire to contact counsel. Just as this court held in Owens, in which a detainee responded to the same question with, “No, not right now”, it was open to the trial judge to find that the appellant’s statement did not qualify as an invocation of the right to counsel. . R. v. Desilva
In R. v. Desilva (Ont CA, 2022) the Court of Appeal considered basic principles related to the Charter s.10(b) right to counsel:i. Applicable Legal Principles
[73] The duty to inform a detained person of their right to counsel arises “immediately” upon arrest or detention. Police are under a positive duty to facilitate contact with counsel at the first reasonably available opportunity once the detainee requests to speak to counsel: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 37-42; R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 24.
[74] There may, however, be practical impediments to the police’s ability to facilitate access to counsel. Delays must nevertheless be reasonably necessary: R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at paras. 26-28.
[75] Determination of a section 10(b) breach is made on a case-by-case basis and with regard to whether the officers made an effort to facilitate access: Taylor, at para. 24.
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