Implementation Component to Right to Counsel

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General Principles

The implementation component is engaged once the detainee indicates a desire to exercise the right to counsel.[1]

The implementation component involves two aspects: [2]

  1. the officer must provide the detainee with reasonable opportunity to exercise the right to retain counsel without delay except in urgent or dangerous circumstances.[3]
  2. refrain from attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel except in urgent or dangerous circumstances.[4]

Consideration of the elements of the implementation component, particularly the "reasonableness", requires the court to consider the "totality of circumstances".[5] There should be no clear line drawn between "reasonable opportunity" and "reasonable diligence".[6]

If the implementational component was not satisfied then there is a breach of the Charter right.[7]

The right to counsel does not include a right to use of a specific phone that is available. It also does not impose an obligation upon police to give access to their own cell phones or those of others in order to facilitate access to counsel.[8]

Application of Implementation Component
The implementation component does not arise until there is an expressed desire to exercise those rights.[9]

Once the accused has been informed of his rights, he has an obligation to pursue them. [10]

The right to be informed of the right to counsel does not go so far as to guarantee the appreciation of all the information given.[11]

Form of Access to Counsel
The accused is not entitled to counsel to be present in person during an interrogation.[12]

There is nothing preventing the accused from having counsel present with the consent of the police.[13]

Choice of Counsel
The right to counsel includes the right to counsel of choice and that the counsel represent the accused throughout. This right is limited to counsel who are competent to undertake the retainer; willing to act; available to represent the accused within a reasonable time; and free of any conflicts.[14]

If the chosen lawyer is not available within a reasonable amount of time, the detainee is expected to call another lawyer or else the police duty to hold off questioning.[15] What amount to reasonable time depends on the circumstances.[16]

Mental State of Detainee
The detainee must possess an operating mind for the right to be properly exercised.[17]

Physical State of Detainee
Where an accused is brought to hospital due to injuries and detained by police, they still have an obligation to provide access to counsel.[18] The burden is upon the police to prove that there are any "logical or medical barriers" to get the accused in contact with a lawyer.[19]

The police should in all cases make inquiries into the ability of the hospital to facilitate access and the accused health to satisfy himself whether there are barriers to access.[20]

  1. R v Luong, 2000 ABCA 301 (CanLII) at para 12
  2. R v Ross, 1989 CanLII 134 (SCC), [1989] 1 SCR 3
  3. R v Bartle 1994 CanLII 64 (SCC), (1994), 92 CCC (3d) 289 (S.C.C.) at 301
  4. R v Bartle, at 301
  5. R v Brown, 2009 NBCA 27 (CanLII) at para 23
  6. Brown
  7. R v Luong at para 12
  8. R v Taylor, 2014 SCC 50 (CanLII)
  9. R v Baig, 1987 CanLII 40 (SCC), [1987] 2 SCR 537, at para 6; R v Bartle at 151-192
  10. R v Tremblay, 1987 CanLII 28 (SCC), [1987] 2 SCR 435
    R v McCrimmon, [2010] 2 SCR 402, 2010 SCC 36 (CanLII), at para 18
    R v Willier, 2010 SCC 37 (CanLII), at para 33
  11. R v Kennedy, 1995 CanLII 9863 (NL CA), [1995] N.J. No. 340, 135 Nfld. & P.E.I.R. 271 (Nfld. C.A.) at 28 to 31
  12. R v Sinclair, 2010 SCC 35 (CanLII), [2010] 2 SCR 310
    R v McCrimmon, supra
  13. Sinclair, supra
  14. R v McCallen, 1999 CanLII 3685 (ON CA), (1999), 131 CCC 518 (Ont.C.A.)
  15. R v Willier
    R v LeClair, 1989 CanLII 134
  16. R v Whitford, 1997 ABCA 85 (CanLII), (1997) 196 AR 97 (CA)
  17. R v Whittle, 1994 CanLII 55 (SCC), [1994] 2 SCR 914
  18. R v Taylor, 2014 SCC 50 (CanLII)
  19. Taylor
  20. Taylor

Holding Off on Questioning

The obligation to hold off on questioning does not include questions that are not "about the offence", "to gather evidence", or for "investigative purpose[s]". [1] Questions that are to "assist the accused to exercise his rights, preserve his property, provide care for his family, or protect his health and safety or the health and safety of others" are valid at any time.[2]

  1. R v Sinclair, 2003 BCSC 2040 (CanLII), [2003] BCJ No. 3258, aff’d 2008 BCCA 127 (CanLII), 169 C.R.R. (2d) 232, aff’d 2010 SCC 35 (CanLII), 259 CCC (3d) 443
    R v Dupe, 2010 ONSC 6594 (CanLII) at para 24 (must hold off on "questioning intended to elicit evidence, sometimes referred to as investigative questioning")
  2. Dupe at para 24

Reasonable Opportunity to Access Counsel

The police must give the accused a reasonable opportunity to contact counsel on arrest in order to foster fair his fair treatment.[1]

Failed Attempts to Contact Counsel
Where the accused fails to reach the lawyer of choice, leaves a voicemail and expects to get a call back but does not tell the officer, and then refuses other counsel, he cannot claim that he was not given reasonable access to counsel.[2]

Facilitating a single failed attempt to call counsel of choice of an accused may or may not be sufficient.[3]

Satisfaction of Accused
Where an accused accesses the phone to speak to counsel and then afterwards states that he will not answer questions until he speaks with legal aid, the officer must make inquiry into whether they were satisfied with their advice or else they will be required to give access to counsel again.[4]

Urgency or Danger
A reasonable opportunity is not needed in circumstances where there is urgency or danger.[5]

The expiry of the two-hour evidentiary presumption under s. 258(1)(c)(ii) is not by itself an urgency to cancel the right to counsel.[6]

Facilitating Internet Access
There has been some suggestion that the access right should include the ability to access the internet to find a lawyer.[7]

  1. R v Brydges 1990 CanLII 123 (SCC), (1990), 53 CCC (3d) 330 (S.C.C.)
  2. R v Top 1989 ABCA 98 (CanLII), (1989), 48 CCC (3d) 493 (Alta.C.A.)
  3. R v Richfield, 2003 CanLII 52164 (ON CA), [2003] O.J. No. 3230 at paras 11 to 12 - left voice mail with counsel of choice, waited an hour. Refused to accept duty counsel. Police found diligent. c.f. R v Millar, 2008 ONCJ 685 (CanLII) at paras 23 to 24 - single phone call insufficient
  4. R v Whitford 1997 ABCA 85 (CanLII), (1997), 115 CCC (3d) 52 (Alta. C.A.)
  5. R v Bartle, 1994 CanLII 64 (SCC), [1994] 3 SCR 173
    R v Sinclair, 2010 SCC 35 (CanLII), [2010] 2 SCR 310 ("The existence of exigent or urgent circumstances that militate against any delay in the interrogation")
    R v Taylor, [2014] 2 SCR 495, 2014 SCC 50 (CanLII), at para 31 (“a police officer’s implementational duties under s. 10(b) are necessarily limited in urgent or dangerous circumstances”)
  6. R v Prosper, [1994] 3 SCR 236, 1994 CanLII 65 (SCC)
  7. R v McKay, 2013 ABPC 13 (CanLII)

Contacting a Non-Lawyers/Third Parties

Certain courts state there is no absolute right to an accused to contact family members such as wife, even if it were for the purpose of contacting a lawyer.[1] It is only where the accused informs the police that the purpose of the call is to assist in contacting a specific lawyer that the police should permit the phone call.[2] However, the phone call would not be private or privileged.[3]

There is also no violation for refusing an unexplained request to contact a friend in the police force.[4]

Police should generally allow the detainee to contact a third-party such as spouse, parent, neighbour, friend, etc., if it is for the purpose of facilitating contact with legal counsel.[5]

The request to contact counsel through a third party must be reasonable.[6] A request will be unreasonable where it may compromise the investigation, such as where the 3rd party could be an accomplice of some sort or may assist in destroying evidence or intimidating witnesses.[7] It may also be unreasonable where the time to contact the third party is too long.[8]

However, officer can be the intermediary in this contact and does not need to allow the accused to speak to the third-party directly, so long as the accused can properly exercise their right to contact counsel.

  1. R v KWJ, 2012 NWTCA 3 (CanLII) - no violation of 10(b) where police did not allow accused to contact wife during interrogation
    R v Magalong, 2013 BCCA 478 (CanLII) at para 33
    c.f. R v Hughes, 2014 ABQB 166 (CanLII) at paras 6 to 8
  2. R v Crossman, 1991 CanLII 471 (BC CA)
    R v Underhill (1992), 1992 CanLII 7709 (ON SC), 10 O.R. (3d) 625 (Ct. J. (Gen. Div.)
    KWJ, supra
  3. KWJ, supra
  4. R v Webber, 2002 BCCA 692 (CanLII)
  5. R v Menard, 2010 BCSC 1416 (CanLII),
    Tremblay, supra
    R v Kumarasamy, [2002] O.J. No. 303 (S.C.J.)(*no link)
  6. Menard, supra ("the request to contact a third party for assistance i retaining counsel must be a reasonable request")
  7. Menard, supra
  8. Menard, supra

Diligence of the Detainee

The right to counsel is not an absolute right. The accused must be reasonably diligent to exercise it.[1] Where the accused is not diligent, the duties of the police are suspended.[2]

If the first part of the implementational duty is satisfied, the judge will only then consider whether the detainee has been reasonably diligent in exercising the right. The onus is on the accused to establish reasonable diligence.[3]

If the detainee failed to be reasonably diligent in exercising their right, the implementational duties do not arise or are suspended and so there cannot be a violation.[4] 

  1. R v Bartle, 1994 CanLII 64 (SCC), [1994] 3 SCR 173
  2. R v Brydges, 1990 CanLII 123 (SCC) at at para 14
  3. R v Smith 1989 CanLII 27 (SCC), [1989] 2 SCR 368, 50 CCC (3d) 308  (S.C.C.) at 315-16 and 323
  4. R v Tremblay 1987 CanLII 28 (SCC), (1987), 37 CCC (3d) 565 (S.C.C.) at 568
    R v Leclair 1989 CanLII 134 (SCC), (1989), 46 CCC (3d) 129 (S.C.C.) at 135
    R v Black 1989 CanLII 75 (SCC), (1989), 50 CCC (3d) 1 (S.C.C.) at 13
    Smith, supra at 314
    Bartle, supra at 301
    R v Prosper 1994 CanLII 65 (SCC), [1994] 3 SCR 236 at 375-381 and 400-401 (cited to CCC)

Choice of Counsel

The right to counsel includes a limited right to a choice of counsel. Where detainee requests a specific lawyer, they are entitled "to a reasonable opportunity to contact their chosen counsel prior to the police questioning".[1]

This right extends only to the point where the lawyer chosen cannot be made available after a reasonable delay at which time the detainee is expected to call another lawyer, including duty counsel.[2]

The right to choice of counsel is engaged when the "accused asks for a particular lawyer on arrest or detention".[3] The officer is then obliged to provide the accused with a "reasonable opportunity to exercise" his right to counsel of choice, during which time all questioning must cease.[4]

The issue at all times is whether the officer provided the detainee with the necessary information and assistance to allow the detainee a reasonable opportunity to exercise his rights.[5]

The right to choice of counsel includes a reasonable opportunity to contact that chosen counsel. The detainee has a right to leave a message with chosen counsel and wait a reasonable period of time for the counsel to call back.[6] Where good faith efforts are made by the police, there cannot be a violation simply because the officer failed to do more where there was some feasible step the officer failed to take to arrange contact with counsel of choice.[7]

A detained person must be reasonably diligent in exercising his right to choose counsel.[8] If he fails to do so, then the related duties are suspended.[9]

Where the chosen lawyer is not available, the accused has the right to "refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond".[10]

Once a reasonable amount time is expired, the detainee is expected to exercise their right to counsel by contacting another lawyer.[11]

The officer must be diligent in ensuring that a reasonable opportunity has been given. The officer may not rely upon "answers to ambiguous questions as a basis for assuming the accused has exercised his ... rights".[12]

An accused who waits an hour after a failed attempt to contact a lawyer of choice and refuses to speak with duty counsel may have failed to be reasonably diligent.[13]

Police may not select a lawyer for the accused nor may they push the detainee towards legal aid as a way to expedite the contacting of counsel.[14]

The three stages of analysis in fulfilling the right to counsel consist of:[15]

  1. Did the police fulfill their duty to act diligently in facilitating the right of the accused to consult counsel of choice? If the trial judge finds they fulfilled their duty then there is no breach of s. 10(b).
  2. If the police did not fulfill their duty then there are two possibilities:
    1. If the police breached their duty because they took no step to facilitate the right to counsel, then a breach of s. 10(b) is established...
    2. If the police breached their duty because they made some effort but it is found not to constitute “reasonable diligence”, the trial judge must next decide whether the accused fulfilled his or her duty to act diligently to exercise the right to counsel. If the answer is yes, then a s. 10(b) breach is made out. If the answer is no, then this trumps the breach of duty by the police and there is no breach of s. 10(b)...
  3. If a breach of s. 10(b) is established the court must then go on to consider whether or not to exclude the consequent evidence under s. 24(2). The conduct of the accused is a factor which the court can consider...

There will be a breach whenever the police attempt to suggest or "stream" the accused towards a particular lawyer or the Legal Aid system.[16]

  1. R v Willier, [2010] 2 SCR 429, 2010 SCC 37 (CanLII)
  2. R v Leclair and Ross 1989 CanLII 134 (SCC), (1989), 46 CCC (3d) 129 (S.C.C.) at page 135
    R v Littleford, 2001 CanLII 8559 (ON CA), [2001] O.J. No. 2437 (C.A.)
    R v Richfield 2003 CanLII 52164 (ON CA), (2003), 178 CCC (3d) 23 (Ont. C.A.)
    R v Van Binnendyk, 2007 ONCA 537 (CanLII), [2007] O.J. No. 2899 (C.A.)
    R v Brown, 2009 NBCA 27 (CanLII), [2009] NBJ No. 143 (C.A.) at para 20 - 27
    Willier, supra
  3. R v Connelly, 2009 ONCA 416 (CanLII)
  4. Connelly, ibid.
  5. R v Gentile, 2008 CanLII 47475 (ON SC), [2008] O.J. No. 3664 (S.C.J.) at para 24
  6. e.g. R v Jary, 2009 BCPC 226 (CanLII)
  7. R v Blackett, 2006 CanLII 25269 (ON SC), [2006] O.J. No. 2999 (S.C.J.)
  8. R v Ross at 135
  9. Ross, supra at 135
  10. Willier, supra
  11. Willier, supra
  12. Connelly, supra
  13. R v Richfield, supra
  14. R v MacLaren, 2001 SKQB 493 (CanLII), 212 Sask. R. 204
    R v Trueman, 2008 SKQB 335 (CanLII)
  15. R v Blackett, 2006 CanLII 25269 (ON SC) at para 29
  16. R v Brouillette, 2007 SKPC 67 (CanLII), at para 37 to 38

Police Comments

The police have a right to try to persuade a person to speak to them.[1]

It is not permissible for a police officer to belittle or make inappropriate comments regarding defence counsel.[2] Where police do so, it has the effect of nullifying the reliance the advice given. To rebut this nullification, it would be necessary to have the detainee be given a further opportunity to contact a lawyer.[3]

Police should not attempt to say anything that may cause the accused to be "talked out" or otherwise persuaded not to call legal aid duty counsel.[4]

  1. R v Hebert; R v Ekman
  2. R v Burlingham 1995 CanLII 88 (SCC), [1995] 2 SCR 206
    R v McKinnon, 2005 ABQB 303 (CanLII)
    R v Timmons, 2002 NSSC 113 (CanLII), [2002] NSJ 209
  3. See Burlingham
  4. R v Balgobin, 2011 ONCJ 108 (CanLII) - officer stated it could take anywhere from 2 minutes to two hours for duty counsel to call back.

Delay in Contacting Counsel

The degree of delay permitted is a matter of context.[1]

The police wait of 10 minutes after a second failed attempt to contact counsel to conduct breath test breached s. 10(b) rights.[2]

Examples
Evidence obtained from a motorist’s involvement in screening tests, without being given their right to counsel, should be excluded from evidence incriminating the driver. [3]

  1. R v Smith, 1986 CanLII 103 (MB CA)
  2. R v Samatar, 2011 ONCJ 520 (CanLII)
  3. R v Orbanski 2005 SCC 37 (CanLII)

Privacy While in Contact with Lawyer

A violation will exist where the accused reasonably believes that the police may be overhearing the conversation with counsel regardless of whether police are actually listening.[1]

  1. R v Banks, 2009 ONCJ 604 (CanLII)

Quality of Advice

The "police have no obligation under s. 10(b) to monitor the quality of the legal advice received by a detainee from duty counsel".[1]

It is also not proper to speculate on how legal advice would have changed the ultimate decisions on the part of the accused.[2]

  1. R v Beierl, 2010 ONCA 697 (CanLII)
  2. R v Black, [1989] 2 SCR 138, 1989 CanLII 75 (SCC) at para 24 (" It is improper for a court to speculate about the type of legal advice which would have been given had the accused actually succeeded in contacting counsel after the charge was changed.")

Fulfillment of Obligation

The advice received in privileged and so police do not need to inquire about the adequacy of the legal advice the detainee received.[1] If there is any issue with the advice given that is for the detainee to raise.

If the detainee is unsuccessful in reaching a lawyer, for example, if he receives a busy signal, no answer, disconnected phone, recorded message, or someone other than the lawyer, it is for the accused to inform the police about so that they can fulfill their duty. It is not for the police to "play twenty questions".[2]

The judge must take an objective view of the circumstances to determine if the implementational component was fulfilled.[3] This must take into account the "totality of the circumstances".[4]

The police are entitled to act on what the accused tells them about the access to counsel. The are not expected to be "mind-readers".[5]

The police may be able to infer that the accused is ready to move on to the next step where he knocks on the door to retrieve the officer.[6]

  1. R v Willier, 2010 SCC 37 (CanLII), [2010] 2 SCR 429
  2. R v Top 1989 ABCA 98 (CanLII), (1989), 48 CCC (3d) 493 at p. 497
  3. Top
  4. R v Adamiak, 2013 ABCA 199 (CanLII), at para 27 (“...whether his section 10(b) rights were breached required an examination of the totality of the circumstances ...”)
  5. Top
    R v Liew, 1998 ABCA 98 (CanLII), (1998) 212 AR 381 at para 18 (“He did not tell them of his difficulty. The police are not mind-readers and, as this Court has said in the past, they are not there to play "Twenty Questions".”)
  6. R v Jones, 2005 ABCA 289 (CanLII), at para 11 (“On the only evidence, the appellant knocked on the door because he had terminated his efforts and was ready to proceed to the next step. The police officer reasonably concluded from the appellant's actions that the appellant had terminated his efforts to try to call his own lawyer.”)