Simon's Megalomaniacal Legal Resources

Charter - s.10(b) Right to Counsel (4)

. R. v. Ali

In R. v. Ali (Ont CA, 2026) the Ontario Court of Appeal allowed a criminal appeal, this brought against convictions for "multiple firearms offences".

The court considered a Charter s.10(b) ['right to counsel'] issue, here where "police formed the intention of searching the rental car under s. 12 of the CCA, but did not advise Mr. Ali of his right to counsel":

B. Should the evidence of Mr. Ali’s flight be excluded as a remedy for the breach of his s. 10(b) Charter rights?

[18] The Crown concedes that in light of this court’s decision in McGowan-Morris [SS: R. v. McGowan-Morris (Ont CA, 2025)], Mr. Ali’s s. 10(b) right to counsel was violated when the police formed the intention of searching the rental car under s. 12 of the CCA, but did not advise Mr. Ali of his right to counsel. We agree that the trial judge, who did not have the benefit of McGowan-Morris, erred by finding no s. 10(b) breach.

....

[24] Evidence may be excluded under s. 24(2) when it was “obtained in a manner that” infringed the accused’s Charter rights. This requires a consideration of the “temporal, contextual and causal” connection between the breach and the obtaining of the evidence at issue: see e.g., R. v. Plaha (2004), 2004 CanLII 21043 (ON CA), 188 C.C.C. (3d) 289 (Ont. C.A.), at para. 45; R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at paras. 50-78. There was plainly a close temporal and contextual link between the breach of Mr. Ali’s s. 10(b) Charter rights that occurred when the search commenced, and his flight a few minutes later. Moreover, Mr. Rudnicki argues that there may also have been a causal connection, since if Mr. Ali had been advised of his right to counsel and had exercised this right, the advice he received from counsel might have led him to act differently and not run away when PC Bartlett found the handgun.

[25] The Crown disputes that Mr. Ali’s flight was sufficiently connected to the s. 10(b) breach to be subject to exclusion under s. 24(2), making two main arguments in support of this position. First, the Crown submits that it would be speculative to conclude that Mr. Ali would have chosen to call counsel if he had been given the opportunity to do so, or that advice from counsel would have changed his behaviour. Second, the Crown argues that even if the trial judge had found a s. 10(b) violation she might also have found that Mr. Ali’s flight was “spontaneous”, making the connection between the breach and his flight “tenuous and remote”: see e.g., R. v. Pearson, 2017 ONCA 389, 348 C.C.C. (3d) 277, at para. 31, leave to appeal refused, [2017] S.C.C.A. No. 465.

[26] The Crown’s arguments fail to account for the location of the burden of proof. In R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at pp. 209-10, Lamer C.J.C. held that although Charter applicants bear the overall burden of establishing that evidence should be excluded under s. 24(2), the burden of persuasion on specific issues can shift to the Crown. In particular, he held at p. 211:

[T]he Crown should bear the legal burden (the burden of persuasion) of establishing, on the evidence, that the s. 24(2) applicant would not have acted any differently had his s. 10(b) rights been fully respected, and that, as a consequence, the evidence would have been obtained irrespective of the s. 10(b) breach.

Lamer C.J.C. added that “[i]f the state subsequently claims that there was no causal link between this breach and the obtaining of the evidence at issue, it is the state that should bear the burden of proving this assertion”: Bartle, at pp. 212-13.

[27] In short, it is not Mr. Ali’s burden to demonstrate that he would have called counsel if he had been advised of his rights and given the opportunity to do so, nor is he required to show that the advice of counsel would have caused him to act differently. Rather, it is the Crown’s burden to disprove one or both of these things on a balance of probabilities. The trial judge, who found no Charter violations and thus did not conduct a s. 24(2) analysis, made no findings in favour of the Crown on these issues.

. R. v. Sutherland

In R. v. Sutherland (Ont CA, 2026) the Ontario Court of Appeal considers Charter s.10(b) 'right to counsel':

[14] With respect to the s. 10(b) breach, we are not satisfied with the appellant that the record is sufficient to determine this issue on appeal. Significantly, there were no questions put to the police witnesses concerning the reasons for any delay in advising the appellant of his right to counsel. Section 10(b) of the Charter places a time-sensitive obligation on the police to inform the occupants of their right to counsel “immediately … subject to concerns for officer or public safety”: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 2.

. R. v. Samuels

In R. v. Samuels (Ont CA, 2025) the Ontario Court of Appeal dismissed the defendant's criminal appeal, here brought against convictions for "two counts of possession of controlled substances (cocaine and crystal methamphetamine) for the purpose of trafficking".

The court considers the Charter s.10(b) right to counsel, here the effect of delay in advising of the right:

iv. The section 10(b) issue

[63] Section 10(b) guarantees to everyone arrested or detained the right “to retain and instruct counsel without delay and to be informed of that right”. Where, upon being informed of the right, the detained person exercises it, the police must immediately provide the detainee with a reasonable opportunity to speak to counsel: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 38, 42; R. v. Jarrett, 2021 ONCA 758, 498 C.R.R. (2d) 38, at para. 41. Where the accused tells police the counsel they would like to speak to, police must make reasonable efforts to connect the detainee with counsel of choice “without delay”: R. v. Edwards, 2024 ONCA 135, 434 C.C.C. (3d) 225, at para. 36, citing R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 29.

[64] The appellant does not contend that the police delayed unreasonably in informing the appellant of his right to counsel; advice in that regard was provided to the appellant within minutes after his arrest. He argues that the delay thereafter was unreasonable.

[65] Some delay in providing access to counsel may be justified but the burden is on the Crown to show that the delay in the circumstances was reasonable. In R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at paras. 26-27, the court explained:

[26] The s. 10(b) jurisprudence has, however, 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. For example, in R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, the court accepted that the police could delay providing access to counsel in order to properly gain control of the scene of the arrest and search for restricted weapons known to be at the scene. Subsequent cases have accepted that specific circumstances relating to the execution of search warrants can also justify delaying access to counsel until the warrant is executed: see e.g. R. v. Learning, 2010 ONSC 3816, 258 C.C.C. (3d) 68, at paras. 71-75.

[27] These cases have, however, emphasized that concerns of a general or non-specific nature applicable to virtually any search cannot justify delaying access to counsel. The police may delay access only 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. Even when those circumstances exist, the police must also take reasonable steps to minimize the delay in granting access to counsel: see e.g. R. v. Patterson, 2006 BCCA 24, 206 C.C.C. (3d) 70, at para. 41; R. v. Soto, 2010 ONSC 1734, at paras. 67-71; Learning, at para. 75; R. v. Wu, 2017 ONSC 1003, 35 C.R. (7th) 101, at para. 78.