Simon's Megalomaniacal Legal Resources

Charter - s.10(b) Right to Counsel (2)

. 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.”

....

[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.

....

[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.