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Charter - s.10(b) Right to Counsel (2). R. v. Samuels
In R. v. Samuels (Ont CA, 2024) the Ontario Court of Appeal considered Charter s.10(b) ['right to counsel'] law:(1) The law
[23] Section 10(b) of the Charter places two different duties on police officers who detain suspects. As Doherty J.A. explained in Rover, at para. 25:Section 10(b) obliges the police to advise a detained person of the right to speak with counsel without delay and, if the detained person exercises that right, the police must immediately provide the detainee with a reasonable opportunity to speak to counsel. [Citations omitted.] There is no dispute in this case that the police properly complied with their informational duty, and that the appellant exercised his right by immediately asking to speak to counsel. The issue is with the subsequent police delay in carrying out their implementational duty.
[24] When access to counsel is delayed, as it was here, “[t]he burden is on the Crown to show that a given delay was reasonable in the circumstances”: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 24; R. v. Hobeika, 2020 ONCA 750, 153 O.R. (3d) 350 at para. 73. In R. v. Keshavarz, 2022 ONCA 312, 413 C.C.C. (3d) 263, at para. 71, Fairburn A.C.J.O. explained:[I]n specific circumstances the implementational component of the right to counsel may be suspended. Those specific circumstances often involve concerns over police or public safety or the preservation of evidence. [Citations omitted.] The need to execute search warrants can sometimes justify a suspension of the right to counsel. However, the police must have “turned their minds to the specific circumstances of the case”; they must have “reasonable grounds to justify the delay”; and they “must move as efficiently and reasonably as possible to minimize any ensuing delay”: Keshavarz, at paras. 71-75; see also Rover, at paras. 26-27, 33.
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(1) When did the s. 10(b) breach start?
[36] I agree with the Crown that the breach of the appellant’s s. 10(b) Charter rights only started once it would have been feasible for the appellant to speak with counsel in private. Even if the police had not decided to delay the appellant’s ability to speak to counsel, it would still have taken them approximately 20 minutes after his arrest to transport him to the police station, and some additional time to complete the booking procedure and arrange a phone call. The appellant’s collapse onto the booking room floor a few minutes after he arrived at the station would then have delayed things further.
[37] However, in my view it would have been reasonably practicable for the police to have put the appellant in touch with counsel by around 2:45 p.m. By this time they had addressed the medical and safety concerns arising from the appellant’s collapse, and the appellant had recovered and was insisting on speaking to counsel immediately. The only reason this did not happen at this time is because Det. Veal had already decided that the appellant’s right to speak with counsel would be suspended until the search warrants had been obtained and executed. Indeed, the video reveals that nearly all of the time between 2:30 p.m. and 3:12 p.m., when the appellant was taken to the cells, was taken up by the appellant and the police arguing about whether he would be allowed to speak to a lawyer. If the police had acceded to the appellant’s repeated requests to speak to counsel, it would likely have only taken them a few minutes to arrange a phone call.
(2) When did the s. 10(b) breach end?
[38] I would find further that the breach of the appellant’s s. 10(b) Charter rights continued until he first spoke with counsel at 11:50 p.m., and that he did not waive his s. 10(b) Charter rights when he gave PC Simon his mother’s name and phone number at 8:30 p.m., rather than immediately giving the officer the name of a lawyer (which he did provide a few minutes later).
[39] I acknowledge that the appellant might possibly have been able to speak to counsel sooner if he had given PC Simon the name of a lawyer when he was first asked for one. This is a relevant consideration to bear in mind in the s. 24(2) analysis. However, I do not agree with the Crown that the appellant’s conduct amounted to an implicit waiver of his s. 10(b) Charter rights. “[T]he standard for waiver [is] high, especially in circumstances where the alleged waiver has been implicit”: R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at p. 192. As Lamer C.J.C. noted in R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236, at pp. 274-75:Given the importance of the right to counsel ... once a detainee asserts the right there must be a clear indication that he or she has changed his or her mind, and the burden of establishing an unequivocal waiver will be on the Crown. [Citations omitted.] [40] In this case, the appellant repeatedly and vociferously asserted his right to counsel for more than an hour after his arrest. While it might have been imprudent for him five hours later to have tried to get PC Simon to call his mother before calling a lawyer, I am not prepared to draw the inference that he had changed his mind about wanting to speak with a lawyer. Indeed, PC Simon did not draw this conclusion either, since when he learned that the person he first called was not a lawyer, he spoke to the appellant again and obtained a lawyer’s name.
[41] I would add that the appellant also had no reason to believe at 8:30 p.m. that giving PC Simon his mother’s name and number would delay his speaking with a lawyer for more than three more hours. It is implausible that the appellant was undergoing medical treatment continuously between 8:30 p.m. and 11:50 p.m., such that his call with counsel could not have been arranged earlier. I would accordingly find that the Crown has not met its burden of demonstrating that the delay between 8:30 p.m. and 11:50 p.m. was “reasonable in the circumstances”: Taylor, at para. 24.
[42] I would also add that even if I were to find that the appellant did implicitly waive his s. 10(b) Charter rights at 8:30 p.m., his rights were reengaged when the police found the gun in his vehicle at 9:45 p.m., which significantly changed his jeopardy: see, e.g., R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138, at pp. 152-53; R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, at p. 892. At most, a finding of waiver at 8:30 p.m. would only reduce the duration of the s. 10(b) Charter breach by an hour and a quarter. . R. v. Vassel
In R. v. Vassel (Ont CA, 2024) the Ontario Court of Appeal dismissed a defendant's criminal appeal, here where the defendant argued at trial a Charter 10(b) right-to-counsel breach - but evidence was still allowed in under Charter 24(2):[29] In my respectful opinion, the trial judge’s final characterization of the second Grant factor as “neutral” does not follow from her otherwise substantially correct analysis. While the impact of the breach on the appellant’s Charter-protected interests may have been attenuated, for the reasons the trial judge identified, I agree with Mr. Halfyard that it was not eliminated entirely. Even if the breach did not ultimately cause the appellant to suffer any lasting prejudice, the lengthy delay before he could speak with his counsel of choice can still be presumed to have caused him psychological stress that affected his security of the person: see Rover, at para. 46; R. v. Jarrett, 2021 ONCA 758, 498 C.R.R. (2d) 38, at para. 52.
[30] As Doherty J.A. observed in Rover, at para. 45:The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated. See also R. v. Dussault, 2022 SCC 16, 468 D.L.R. (4th) 589, at para. 56. The psychological value of the appellant being allowed to speak with a lawyer he already knew, and presumably trusted, should also not be underestimated: see e.g., R. v. McCallen (1999), 1999 CanLII 3685 (ON CA), 43 O.R. (3d) 56 (C.A.), at p. 67. There were also practical reasons for the appellant to want to speak to his own lawyer, rather than merely to duty counsel. It is reasonable in the circumstances to assume that he would have wanted not simply to get legal advice about the bail process, but also to arrange for someone to represent him at his bail hearing. While the delay in putting the appellant in contact with his own lawyer may not have delayed his bail hearing, as the trial judge found, it still resulted in his spending more than eight hours in a state of greater uncertainty than he would have experienced if his s. 10(b) rights had been respected. . R. v. Brown
In R. v. Brown (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal, here involving Charter s.10(b) right to counsel 'implementation delays':(a) The principles governing s. 10(b) implementational delays
[32] Section 10(b) of the Charter stipulates that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.
[33] This provision has both “informational” and “implementational” components. Upon arrest or detention, police must “immediately” advise a detainee of their right to counsel. If the detainee asks to speak to counsel, police must facilitate a lawyer call “at the first reasonably available opportunity.” Until that implementational obligation is discharged, police must refrain from attempting to elicit evidence from the accused: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 38; R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at paras. 24-28.
[34] Recently, in R. v. Brunelle, 2024 SCC 3, 92 C.R. (7th) 219, the Supreme Court explained that whether the delay in exercising the right to counsel is reasonable is a “factual and highly contextual inquiry”. Barriers to access or “exceptional circumstances” cannot be assumed; they must be proved by the Crown: Brunelle, at para. 83.
[35] This court arrived at a similar conclusion in R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 33, where it held that the law permits a delay in the facilitation of the right to counsel, but only where the police have turned their minds to the “specific circumstances of the case” and have “reasonable grounds” to justify the delay. The justification may be premised on the risk of “the destruction of evidence, public safety, police safety, or some other urgent or dangerous circumstance”: Rover, at para. 33.
[36] Where those circumstances exist, the police must move as efficiently and sensibly as possible to minimize any ensuing delay: R. v. Keshavarz, 2022 ONCA 312, 413 C.C.C. (3d) 263, at para. 75; see also Rover, at para. 27. . R. v. Cameron
In R. v. Cameron (Ont CA, 2024) the Ontario Court of Appeal considered Charter s.10(b) 'right to counsel', here the issue of delay in advising of the right:Issue 5: The timing of the right to counsel
[44] The appellant submits that the trial judge erred in finding that the 11 minute delay in advising him of his right to counsel was not a breach of his s. 10(b) rights. I disagree.
[45] In R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 37, the Supreme Court confirmed that s. 10(b) of the Charter guarantees that, once an individual is detained, they have the right to retain counsel and to be advised of that right without delay. The court interpreted “without delay” to mean “immediately”: Suberu, at para. 41. However, the obligation to advise a suspect who is detained of the right to counsel “immediately” can be subject “to officer or public safety”: Suberu, at para. 42; R. v. Rover, 2018 ONCA 745, paras. 26-27; R. v. Pileggi, 2021 ONCA 4, paras. 61-62.
[46] In Rover, at para. 26, Doherty J.A. explained that s. 10(b) jurisprudence has “always recognized that specific circumstances may justify some delay in providing a detainee access to counsel. Those circumstances often relate to police safety, public safety or the preservation of evidence”. He further explained, at para. 27, that “general or non-specific” concerns cannot justify delay. Rather, the police can only delay “after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel”.
[47] In this case, the trial judge considered the evidence of the arresting officers regarding their reasons for the 11-minute delay in advising the appellant of his right to counsel. He described their evidence as follows:After Mr. Cameron was arrested, and after the Jeep was searched along with the duffel bag, P/C Chartrand and P/C Anderson left the location where the Jeep was parked without having provided Mr. Cameron with a statement respecting his right to counsel. P/C Chartrand said his usual practice was to read the caution from a card he carries in his pocket and to make notes of the responses. He said he felt like they were sitting ducks in the area where the Jeep had been stopped, with the possibility of armed suspects nearby. They were standing in a pool of light from the vehicle headlights, surrounded by darkness. His information was that the suspects had just left the house and there was a substantial possibility that they were in the immediate area. He felt it wasn’t safe where they were standing. P/C Anderson said he was worried about getting shot at and not knowing where to return fire. P/C Chartrand and P/C Anderson left that location with Mr. Cameron handcuffed in the backseat and drove to where P/C Chartrand said it was safer and where he could write some notes. [48] He further found that Officers Chartrand and Anderson did not try to elicit any evidence from the appellant during this 11 minute delay.
[49] In the circumstances, I see no error in the trial judge’s conclusion that the delay in providing information about the right to counsel to Mr. Chartrand was caused by concerns over officer safety and that those concerns were legitimate in the context of this case. The officers’ evidence demonstrated that they turned their mind to the issue and that their concerns were legitimate. . R. v. Whittaker
In R. v. Whittaker (Ont CA, 2024) the Court of Appeal considered the defendant's Charter s.10(b) ['right to counsel'] rights:[27] Section 10(b) of the Charter guarantees that everyone arrested or detained has the right to retain and instruct counsel without delay and to be informed of that right. When, after being informed of this right, a detained person seeks to exercise it, subject to few exceptions, such as concerns for officer or public safety, the police must immediately provide them with a reasonable opportunity to speak with counsel: See R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 42. In this case, although the appellant asked to speak with counsel, he was never given the opportunity to do so. The police therefore breached the appellant’s rights under s. 10(b). This is not in dispute. . R. v. Foreshaw
In R. v. Foreshaw (Ont CA, 2024) the Court of Appeal considered Charter s.10(b) ['right to counsel'] issues:[91] Section 10(b) provides a detained person with the right “to retain and instruct counsel without delay and to be informed of that right”. Miller J.A., citing R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, described the requirements of this right in Ghotra at para. 33, as follows:... this right imposes the following requirements: (1) informational: to advise the detainee of the right to retain and instruct a lawyer without delay, and of the existence and availability of legal aid and duty counsel; (2) implementational: where the detainee indicates a desire to exercise the right, to provide a reasonable opportunity; and (3) forbearance: to refrain from eliciting evidence from the detainee until the detainee has had a reasonable opportunity to exercise the right. [92] The purpose of s.10(b) was described by the Supreme Court in R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 28: “s.10(b) provides detainees with an opportunity to contact counsel in circumstances where they are deprived of liberty and in the control of the state, and thus vulnerable to the exercise of its power and in a position of legal jeopardy. The purpose of s. 10(b) is to provide detainees an opportunity to mitigate this legal disadvantage.”
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[95] The onus was on the appellant to establish that he misunderstood his rights such that s. 10(b) was infringed. Similar to the situation in Ghotra, the appellant did not testify on the voir dire and the trial judge found that at no point did he convey confusion about his right to counsel.
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[100] The appellant also argues that the trial judge erred in finding that his requests for counsel during the interview were all future orientated. He notes that even D.S. Gallant interpreted some of those requests as reflecting a desire to speak to counsel immediately. However, the trial judge was not bound by D.S. Gallant’s interpretation. Instead, it was open to trial judge, on her review of the interview recording, to find that the requests were all future orientated.
[101] Further, and in any event, even if a request had been made for a second consultation with counsel, the request itself is insufficient to re-trigger the appellant’s s. 10(b) rights. As found by the Supreme Court in R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 65, more is required:We conclude that the principles and case-law do not support the view that a request, without more, is sufficient to retrigger the s. 10(b) right to counsel and to be advised thereof. What is required is a change in circumstances that suggests that the choice faced by the accused has been significantly altered, requiring further advice on the new situation, in order to fulfill the purpose of s. 10(b) of providing the accused with legal advice relevant to the choice of whether to cooperate with the police investigation or not. There was no change of circumstances during the interview of the appellant conducted by D.S. Gallant.
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