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Charter - Section 10(b) Right to Counsel. 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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