Criminal Law Notebook

Implementation Component to Right to Counsel

This page was last substantively updated or reviewed May 2021. (Rev. # 95761)

General Principles

See also: Informational Component to Right to Counsel

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]

Engagement of the right does not require the detainee to specifically ask for access to a phone.[11]

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.[12]

Burden of Proof

The burden is upon the accused to establish on a balance of probabilities that the accused was denied his right to counsel.[13] However, where the Crown is relying upon waiver of the right, it is the Crown's burden to prove such waiver.[14]

Form of Access to Counsel

The accused is not entitled to counsel to be present in person during an interrogation.[15]

There is nothing preventing the accused from having counsel present with the consent of the police.[16]

Choice of Counsel

The right to counsel includes the right to counsel of choice and that the counsel represents 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.[17]

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.[18] What amount to reasonable time depends on the circumstances.[19]

Mental State of Detainee

The detainee must possess an operating mind for the right to be properly exercised.[20]

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.[21] 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.[22]

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.[23]

  1. ↑ R v Luong, 2000 ABCA 301 (CanLII), 149 CCC (3d) 571, per Berger JA, at para 12
  2. ↑ R v Ross, 1989 CanLII 134 (SCC), [1989] 1 SCR 3, per Lamer J
  3. ↑ R v Bartle, 1994 CanLII 64 (SCC), 92 CCC (3d) 289, per Lamer CJ at 301
  4. ↑ Bartle, supra, at p. 301
  5. ↑ R v Brown, 2009 NBCA 27 (CanLII), 889 APR 1, per Richard JA , at para 23
  6. ↑ Brown, ibid.
  7. ↑ Luong, supra, at para 12
  8. ↑ R v Taylor, 2014 SCC 50 (CanLII), [2014] 2 SCR 495, per Abella J
  9. ↑ R v Baig, 1987 CanLII 40 (SCC), [1987] 2 SCR 537, per curiam, at para 6
    Bartle, supra, at pp. 151-192
  10. ↑ R v Tremblay, 1987 CanLII 28 (SCC), [1987] 2 SCR 435, per Lamer J
    R v McCrimmon, 2010 SCC 36 (CanLII), [2010] 2 SCR 402, per McLachlin CJ and Charron J, at para 18
    R v Willier, 2010 SCC 37 (CanLII), [2010] 2 SCR 429, per McLachlin CJ and Charron J, at para 33
  11. ↑ R v Manninen, 1987 CanLII 67 (SCC), [1987] 1 SCR 1233, per Lamer J
  12. ↑ R v Kennedy, 1995 CanLII 9863 (NL CA), [1995] NJ No 340, 135 Nfld. & PEIR 271 (Nfld. C.A.), per Marshall JA at 28 to 31
  13. ↑ R v Baig, 1987 CanLII 40 (SCC), [1987] 2 SCR 537, per curiam
  14. ↑ R v Prosper, 1994 CanLII 65 (SCC), [1994] 3 SCR 236, per Lamer CJ
  15. ↑ R v Sinclair, 2010 SCC 35 (CanLII), [2010] 2 SCR 310, per MacLachlin CJ and Charron J
    McCrimmon, supra
  16. ↑ Sinclair, supra
  17. ↑ R v McCallen, 1999 CanLII 3685 (ON CA), 131 CCC 518, per C'Connor JA
  18. ↑ Willier, supra
    R v LeClair, 1989 CanLII 134 (SCC), [1989] 1 SCR 3, per Lamer J
  19. ↑ R v Whitford, 1997 ABCA 85 (CanLII), (1997) 196 AR 97 (CA), per Berger JA
  20. ↑ R v Whittle, 1994 CanLII 55 (SCC), [1994] 2 SCR 914, per Sopinka J
  21. ↑ R v Taylor, 2014 SCC 50 (CanLII), [2014] 2 SCR 495, per Abella J
  22. ↑ Taylor, ibid.
  23. ↑ Taylor, ibid.

Suspension of Implementational Component

There are limited specific circumstances where the implementational component may be suspended.[1] Those situations include safety of police or the public.[2] It can also include execution of a search warrant[3] or securing evidence.[4] The officer must have some reasonable basis to believe that suspension is necessary to achieve one of the specified goals.[5]

  1. ↑ R v Rover, 2018 ONCA 745 (CanLII)
    R v Keshavarz, 2022 ONCA 312 (CanLII), at para 71
  2. ↑ Rover, supra, at para 26
    Suberu, at para. 42(complete citation pending)
    Keshavarz, supra at para 71 R v Griffith, 2021 ONCA 302 (CanLII), 408 CCC (3d) 244, per Jamal JA, at para 38
  3. ↑ Keshavarz, supra at para 71
  4. ↑ Keshavarz, supra at para 73
  5. ↑ Keshavarz, supra at para 74
    Rover, supra, at para 27 (suspension must be founded "on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel")

Duty to Holding Off on Questioning

Once the detainee indicates they wish to speak to counsel, the police have an obligation to cease all question until access to counsel has been facilitated.[1]


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]". [2] 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.[3]

A proactive request for counsel before the completion of the informational script may police to change their script to not include anything that may seek to elicit evidence, such as the question “do you wish to say anything?”[4]

  1. ↑ R v Manninen, 1983 CanLII 1726 (ON CA), 37 CR (3d) 162 aff'd [1987] 1 SCR 1233, 1987 CanLII 67 (SCC), per Lamer J
    R v Prosper, 1994 CanLII 65 (SCC), [1994] 3 SCR 236, per Lamer CJ, at p. 269 (SCR)
  2. ↑ R v Sinclair, 2003 BCSC 2040 (CanLII), [2003] BCJ No 3258, per Powers J, aff’d 2008 BCCA 127 (CanLII), 169 CRR (2d) 232, per Frankel JA, aff’d 2010 SCC 35 (CanLII), 259 CCC (3d) 443, per McLachlin CJ and Charron J
    R v Dupe, 2010 ONSC 6594 (CanLII), OJ No 5757, per Dambrot J, at para 24 (must hold off on "questioning intended to elicit evidence, sometimes referred to as investigative questioning")
  3. ↑ Dupe, ibid., at para 24
  4. ↑ R v GTD, 2018 SCC 7 (CanLII), [2018] 1 SCR 220 per Brown J at para 2

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]

The police obligation does not extend to arranging for lawyers to be available for free advice at any time or place.[2]

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.[3]

Facilitating a single failed attempt to call counsel of choice of an accused may or may not be sufficient.[4]

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.[5]

Urgency or Danger

A reasonable opportunity is not needed in circumstances where there is urgency or danger.[6]

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.[7]

Facilitating Internet Access

There has been some suggestion that the access right should include the ability to access the internet to find a lawyer.[8]

  1. ↑ R v Brydges, 1990 CanLII 123 (SCC), 53 CCC (3d) 330, per Lamer J
  2. ↑ R v Cobham (1993), 80 CCC (3d) 449(*no CanLII links) reversed on other grounds at 1994 CanLII 69 (SCC), [1994] 3 SCR 360
  3. ↑ R v Top, 1989 ABCA 98 (CanLII), 48 CCC (3d) 493, per Cote JA
  4. ↑ R v Richfield, 2003 CanLII 52164 (ON CA), [2003] OJ No 3230, per Weiler JA, at paras 11 to 12 - left voice mail with counsel of choice, waited an hour. Refused to accept duty counsel. Police found diligent. cf. R v Millar, 2008 ONCJ 685 (CanLII), per Reinhardt J, at paras 23 to 24 - single phone call insufficient
  5. ↑ R v Whitford, 1997 ABCA 85 (CanLII), 115 CCC (3d) 52, per Berger JA
  6. ↑ R v Bartle, 1994 CanLII 64 (SCC), [1994] 3 SCR 173, per Lamer CJ
    R v Sinclair, 2010 SCC 35 (CanLII), [2010] 2 SCR 310, per McLachlin CJ ("The existence of exigent or urgent circumstances that militate against any delay in the interrogation")
    R v Taylor, 2014 SCC 50 (CanLII), [2014] 2 SCR 495, per Abella J, at para 31 (“a police officer’s implementational duties under s. 10(b) are necessarily limited in urgent or dangerous circumstances”)
  7. ↑ R v Prosper, 1994 CanLII 65 (SCC), [1994] 3 SCR 236
  8. ↑ R v McKay, 2013 ABPC 13 (CanLII), per Lamoureux J

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, an 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), 252 CRR (2d) 141, per curiam - no violation of 10(b) where police did not allow accused to contact wife during interrogation
    R v Magalong, 2013 BCCA 478 (CanLII), per Saunders JA, at para 33
    cf. R v Hughes, 2014 ABQB 166 (CanLII), 583 AR 192, per Bast J, at paras 6 to 8
  2. ↑ R v Crossman, 1991 CanLII 471 (BC CA), per Lambert JA
    R v Underhill, 1992 CanLII 7709 (ONSC), , 10 OR (3d) 625
    KWJ, supra
  3. ↑ KWJ, supra
  4. ↑ R v Webber, 2002 BCCA 692 (CanLII), 180 BCAC 178, per Huddart JA (3:0)
  5. ↑ R v Menard, 2010 BCSC 1416 (CanLII), 11 BCLR (5th) 162, per Ehrcke J
    Tremblay, supra
    R v Kumarasamy, [2002] OJ No 303 (SCJ)(*no CanLII links)
  6. ↑ Menard, supra ("the request to contact a third party for assistance in 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, per Lamer CJ
  2. ↑ R v Brydges, 1990 CanLII 123 (SCC), [1990] 1 SCR 190, per Lamer J, at para 14
  3. ↑ R v Smith, 1989 CanLII 27 (SCC), [1989] 2 SCR 368, 50 CCC (3d) 308  (SCC) at 315-16 and 323
  4. ↑ R v Tremblay, 1987 CanLII 28 (SCC), 37 CCC (3d) 565, per Lamer J (7:0) at 568
    R v Leclair, 1989 CanLII 134 (SCC), 46 CCC (3d) 129 at 135
    , per Lamer J (4:2) R v Black, 1989 CanLII 75 (SCC), 50 CCC (3d) 1, per Wilson J (5:0) at 13
    Smith, supra at 314
    Bartle, supra at 301
    R v Prosper, 1994 CanLII 65 (SCC), [1994] 3 SCR 236, per Lamer CJ at 375-381 and 400-401 (cited to CCC)

Choice of Counsel

See also: Right to Choice of Counsel

Police Comments to Detainee

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

Disparaging Counsel

It is not permissible for a police officer to make inappropriate comments regarding defence counsel that attack their integrity.[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]

It is potentially inappropriate anytime police make "comments" on the legal advice given to detainees.[4]

Inappropriate attacks on the integrity of counsel consist of comments are those that are "repeated disparaging comments made about defence counsel’s loyalty, commitment, availability, as well as the amount of his legal fees."[5]

Making comments about duty counsel such as "they are not the ones sitting in jail" or "they're the ones at home taking a phone call from you", may be sufficient to amount to disparagement of counsel contrary to s. 10(b).[6]

However, not all negative comments will amount to a breach of s. 10(b).[7]

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.[8]

  1. ↑ R v Hebert, 1990 CanLII 118 (SCC), (1990), per McLachlin J
    R v Ekman, 1999 CanLII 6732 (BC SC), per Stromberg-Stein J
  2. ↑ R v Burlingham, 1995 CanLII 88 (SCC), [1995] 2 SCR 206, per Iacobucci J
    R v McKinnon, 2005 ABQB 303 (CanLII), 383 AR 147, per Sullivan J
    R v Timmons, 2002 NSSC 113 (CanLII), [2002] NSJ 209, per Edwards J
  3. ↑ See Burlingham, supra
  4. ↑ R v Mujku, 2011 ONCA 64 (CanLII), 278 CCC (3d) 299, per curiam, at para 36 ("the police tread on dangerous ground when they comment on the legal advice tendered to detainees.")
  5. ↑ Burlingham, supra, at para 4
  6. ↑ R v Al-Adhami, 2020 ONSC 6421 (CanLII), per Harris J
  7. ↑ e.g. see R v Mujku, 2011 ONCA 64 (CanLII), 278 CCC (3d) 299, per MacPherson JA
  8. ↑ R v Balgobin, 2011 ONCJ 108 (CanLII), per Libman J - officer stated it could take anywhere from 2 minutes to two hours for duty counsel to call back.

Delay in Contacting Counsel

Urgent circumstances may warrant delay in facilitating access to counsel.[1]

The degree of delay permitted is a matter of context.[2]

The police wait of 10 minutes after a second failed attempt to contact counsel to conduct breath test breached s. 10(b) rights.[3]

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. [4]

  1. ↑ R v Manninen, 1987 CanLII 67 (SCC), [1987] 1 SCR 1233, per Lamer J, at para 22 ("...there may be circumstances in which it is particularly urgent that the police continue with an investigation before it is possible to facilitate a detainee's communication with counsel.")
  2. ↑ R v Smith, 1986 CanLII 103 (MB CA), 25 CCC (3d) 361, per Huband JA
  3. ↑ R v Samatar, 2011 ONCJ 520 (CanLII), per Knazan J
  4. ↑ R v Orbanski, 2005 SCC 37 (CanLII), [2005] 2 SCR 3, per Charron J

Privacy While in Contact with Lawyer

The right to counsel includes the corollary right to consult in private.[1] This means that at a "bare minimum" the detainee must be able to consult with counsel without the conversation being overheard and the detainee should not be required to request privacy for the purpose of making the phone call.[2]

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.[3]

There is no obligation on the part of the detainee to request privacy in making their phone call.[4]

The informational component of the right to counsel does not require the police to inform the detainee of the privacy right as it would be expected to be self-evident.[5] But if the detainee is exhibiting a belief that the call to counsel would not be private, the police have an obligation to inform the detainee of the right to privacy.[6]

  1. ↑ R v Young, 1987 CanLII 108 (NB CA), , 81 NBR (2d) 233 (N.B. C.A.), per Stratton CJ
    R v LePage, 1986 CanLII 119 (NSCA), 32 CCC (3d) 171, per Jones JA
    R v McKane, 1987 CanLII 6794, , 35 CCC (3d) 481, per Martin JA
    R v Playford, 1987 CanLII 125 (ON CA), 40 CCC (3d) 142, per Goodman JA
    R v O’Donnell, 2004 NBCA 26 (CanLII), 185 CCC (3d) 367, per Robertson JA, at para 4 ("...the right to retain and instruct counsel, under s. 10(b) of the Charter, includes a corollary right to consult in private. Without the requisite degree of privacy, the constitutional right to counsel becomes illusory. ...")
  2. ↑ O'Donnell, ibid., at para 4 ("While the amount of privacy need not be great, at a minimum, an accused must be able to converse with his or her lawyer without the conversation being overheard. Moreover, those who exercise their right to counsel are not required to request privacy or greater privacy than what the police are willing to provide. ")
  3. ↑ R v Banks, 2009 ONCJ 604 (CanLII), per Perkins-McVey J
  4. ↑ O'Donnell, supra, at para 4
  5. ↑ R v Parrill, 1998 CanLII 18014 (NL CA), 58 CRR (2d) 56, per Wells JA
  6. ↑ R v Jackson, 1993 CanLII 8667 (ON CA), 25 CR (4th) 265 (ONCA), per Goodman JA

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), per curiam
  2. ↑ R v Black, 1989 CanLII 75 (SCC), [1989] 2 SCR 138, per Wilson J, 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, per McLachlin CJ and Charron J
  2. ↑ R v Top, 1989 ABCA 98 (CanLII), 48 CCC (3d) 493, per Cote JA, at p. 497
  3. ↑ Top, ibid.
  4. ↑ R v Adamiak, 2013 ABCA 199 (CanLII), 553 AR 178, per curiam, at para 27 (“...whether his section 10(b) rights were breached required an examination of the totality of the circumstances ...”)
  5. ↑ Top, ibid.
    R v Liew, 1998 ABCA 98 (CanLII), (1998) 212 AR 381, per Veit J, 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), 201 CCC (3d) 268, per curiam (2:1), 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.”)

Additional Contact with Counsel

See Also

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