Right to Choice of Counsel

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2019. (Rev. # 85359)

General Principles

See also: Implementation Component to Right to 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]

Limitation to Choice of Counsel

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]

Engaging Right to Choice of Counsel

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]

Rights When Counsel Unavailable

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.[5] 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.[6]

Detainee Diligence

A detained person must be reasonably diligent in exercising his right to choose counsel.[7] If he fails to do so, then the related duties are suspended.[8]

Officer Diligence

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.[9]

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".[10]

Choice for Counsel

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".[11]

Once a reasonable amount of time is expired waiting for counsel of choice, the detainee is expected to exercise their right to counsel by contacting another lawyer.[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 Do Not Select

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]

Stages of Analysis

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]

Counsel Must be Available

The right to counsel is a right to the counsel who are available to proceed on the date set for the trial.[17]

Joint Trials

The right to choice of counsel will defer to the requirements of a joint trial.[18]

The right to a choice of counsel must be weighed against the co-accused's right to a speedy trial.[19]

Right to Counsel of Chosen Ethnicity

There is no special obligations upon police to identify and locate counsel of a chosen ethnicity.[20]

  1. R v Willier, 2010 SCC 37 (CanLII), [2010] 2 SCR 429, per McLachlin CJ and Charron J
  2. R v Leclair and Ross, 1989 CanLII 134 (SCC), 46 CCC (3d) 129, per Lamer J, at p. 135
    R v Littleford, 2001 CanLII 8559 (ON CA), [2001] OJ No 2437 (CA), per curiam
    R v Richfield, 2003 CanLII 52164 (ON CA), 178 CCC (3d) 23, per Weiler JA
    R v Van Binnendyk, 2007 ONCA 537 (CanLII), [2007] OJ No 2899 (CA), per curiam
    R v Brown, 2009 NBCA 27 (CanLII), [2009] NBJ No 143 (CA), per Ricard JA, at #par20 paras 20 to 27
    Willier, supra
  3. R v Connelly, 2009 ONCA 416 (CanLII), 190 CRR (2d) 54, per Rosenberg JA
  4. Connelly, ibid.
  5. e.g. R v Jary, 2009 BCPC 226 (CanLII), per Hicks J
  6. R v Blackett, 2006 CanLII 25269 (ONSC), [2006] OJ No 2999 (SCJ), per Ferguson J
  7. Ross, supra at 135
  8. Ross, supra at 135
  9. R v Gentile, 2008 CanLII 47475 (ONSC), [2008] OJ No 3664 (SCJ), per Durno J, at para 24
  10. Connelly, supra
  11. Willier, supra
  12. Willier, supra
  13. Richfield, supra
  14. R v MacLaren, 2001 SKQB 493 (CanLII), 212 Sask R 204, per Foley J
    R v Trueman, 2008 SKQB 335 (CanLII), 325 Sask R 252, per Mills J
  15. R v Blackett, 2006 CanLII 25269 (ONSC), per Ferguson J, at para 29
  16. R v Brouillette, 2007 SKPC 67 (CanLII), 297 Sask R 113, per Morgan J, at paras 37 to 38
  17. see Re Chimienti [1980] OJ No 400 (HCJ)(*no CanLII links) , at para 7
    R v Hart, 2002 BCSC 1174 (CanLII), BCTC 1174, per Parrett J, at para 17
  18. R v Agarwal, 2007 ABQB 775 (CanLII), 434 AR 170, per Bielby J, at para 47
  19. R v Millard, 2017 ONSC 4548 (CanLII), [2010] 2 SCR 429, per Code J, at para 9
  20. R v Wright, 2018 ONSC 1011 (CanLII), per Del Frate J