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Charter - s.10(b) Right to Counsel (2). R. v. McGowan-Morris
In R. v. McGowan-Morris (Ont CA, 2025) the Ontario Court of Appeal allowed a Crown criminal appeal, here from an acquittal where "the trial judge’s findings that the respondent’s rights were violated or, alternatively, his decision to exclude the evidence of under s. 24(2) of the Charter".
Here the court considers s.10(b) ['right to counsel'] and it's 'suspension', which is apparently(?) different from a s.1-justified breach of a Charter right:[84] In applying Orbanski in this context, it is helpful to consult first principles. The trigger for all the rights under s. 10 of the Charter is an arrest or a detention. As noted above, in Suberu, the Supreme Court of Canada discussed the limits of investigative detentions and the correlative duties of police officers. McLachlin C.J.C. and Charron J. said, at para. 42: “Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention” (emphasis added). I note that several cases have more broadly concluded that “exceptional circumstances” – not just safety concerns – may warrant a suspension of s. 10(b): R. v. Brunelle, 2024 SCC 3, 92 C.R. (7th), at para. 83; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 74; and R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, at p. 1242.[4] Those other exceptional circumstances, however, are not relevant to the present appeal.
[85] Suberu and other caselaw, therefore, make clear that suspensions of s. 10(b) will be lawful in at least two circumstances. First, where there are concerns for officer and public safety: Suberu, at para. 42; R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, at pp. 998-999; R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 33; R. v. Brown, 2024 ONCA 763, at para. 35; and R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, at paras. 57-63. And, second, where a limit on the relevant right is prescribed by law and justified under s. 1: Suberu, at para. 42; Orbanski, at para. 33; and Thomsen, at p. 650.
[86] Suspensions stemming from concerns for officer and public safety are distinct from suspensions flowing from justified limits under s. 1. Safety concerns are case-specific and do not entitle a court to declare that individuals’ rights are suspended in each and every CCA investigation. That is because those concerns are not a limit “prescribed by law”; they cannot form the basis of a generalized suspension of individual rights under s. 1. Rather, in those exceptional circumstances, the scope of the right is limited internally, meaning that s. 10(b) accommodates a delay in furnishing access to counsel when the police and public face an imminent risk of harm.
[87] By contrast, a limit that is prescribed by law and justified under s. 1 does entitle a court to generally declare that a statute suspends a right in each and every case. That analysis is not case-specific. For present purposes, the relevant question is whether a prescribed limit arises by necessary implication from “the operating requirements of a statute”. The question is not whether a limit arises from the operating requirements of a particular investigation. If it was, then the limit would not be prescribed by law and could not be subject to s. 1. Therefore, the inquiry into whether s. 10(b) is suspended is only case-specific when there are relevant officer and public safety concerns (or other exceptional circumstances). At paras 88-104 the court explores whether Charter s.10(b) was 'suspended' in this Cannabis Control Act (CCA) case.
. R. v. McGowan-Morris [reviewing Orbanski]
In R. v. McGowan-Morris (Ont CA, 2025) the Ontario Court of Appeal allowed a Crown criminal appeal, here from an acquittal where "the trial judge’s findings that the respondent’s rights were violated or, alternatively, his decision to exclude the evidence of under s. 24(2) of the Charter".
The court reviews Charter s.10(b) ['Right to Counsel'], here reviewing the important Orbanski (SCC, 2005) case:[46] In Orbanski, the Supreme Court of Canada considered whether the right to counsel was suspended during roadside sobriety stops authorized by Manitoba legislation (at the time of the events, the Highway Traffic Act, S.M. 1985-86, c. 3, C.C.S.M. c. H60). Based on powers granted in this legislation, the police pulled over two drivers and asked them questions to assess their sobriety; one accused was asked to perform sobriety tests. Neither driver was advised of their rights under s. 10(b) of the Charter.
[47] The legislation said nothing about the suspension of the right to counsel. Thus, the issue on appeal was whether the statute implied a limit on s. 10(b). The Court had to answer this question to determine whether the failure of the police to provide the accused with their right to counsel was “prescribed by law” and could therefore be justified under s. 1 of the Charter. If not, then the evidence stemming from the sobriety tests would be analyzed, and possibly excluded, under s. 24(2). That is also the issue in this case because s. 12 of the CCA does not explicitly suspend the right to counsel.
[48] The majority of the Court determined that the legislation imposed a limit, in the form of a suspension, on the right to counsel and that this limit was demonstrably justified under s. 1 of the Charter. However, before arriving at this determination, Charron J., writing for the majority at paras. 23-28, identified a number of contextual factors that would “govern” her analysis. The appellant submits that a number of these factors are relevant to the CCA context.
[49] First, Charron J. emphasized that the use of a vehicle on a highway is an inherently dangerous activity that is subject to regulation and control for the protection of life and property: at para. 24, citing Dedman v. The Queen, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2, at p. 35. She identified the overwhelming need to ensure safety on our roads and highways: at para. 24.
[50] Second, Charron J. underscored the difficulties faced by police officers tasked with protecting the public from the “menace posed by drinking and driving”: at para 25. This is due in part to the fact that driving after consuming alcohol is not always illegal. It depends on the amount consumed. The line between legal and illegal consumption is not always easy to discern. Thus, Charron J. held that “officers must be equipped to conduct this screening, though with minimal intrusion on the individual motorist’s Charter rights”: at para. 25.
[51] Third, Charron J. highlighted that impaired drivers pose an ongoing danger to others and, therefore, the police must intervene early. As she said: “The aim is to screen drivers at the road stop, and not at the scene of the accident”: at para. 26. However, she added that: “Effective screening should also be achieved with minimal inconvenience to the legitimate users of the highway”: at para. 26.
[52] Fourth, Charron J. emphasized that the regulation and control of impaired driving is achieved through an “interlocking scheme of federal and provincial legislation”: at para. 27. As she said: “The Court must carefully balance the Charter rights of motorists against the policy concerns of both Parliament and the provincial legislatures”: para. 27.
[53] With these factors in mind, Charron J. turned her attention to s. 1 of the Charter, at para. 33:The s. 10(b) right to counsel, however, is not absolute. It is subject, under s. 1 of the Charter, “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. The analysis under s. 1 of the Charter involves two separate components: the proposed limit must be prescribed by law and, if it is, it must be reasonable and demonstrably justified in a free and democratic society. [54] In terms of being prescribed by law, a limit may be explicitly addressed in legislation; alternatively, it may arise “by necessary implication from the operating requirements of the governing provincial and federal legislation”: at para. 35; see also R. v. Therens, 1985 CanLII 29 (SCC), [1985] 1 S.C.R. 613, at p. 645; and R. v. Thomsen, [1988] 1 S.C.R. 613, at pp. 652-53.
[55] Justice Charron found that the limit on the right to counsel arose by necessary implication from the operational requirements of the Manitoba Highway Traffic Act: at paras. 52-53. The Court concluded that a limit on the right to counsel was prescribed during the period necessary to assess sobriety in a quick manner that avoids prolonged detention. Key to the majority’s analysis was the concern that requiring the police to advise a roadside detainee of the right to counsel would unduly prolong the situation, resulting in longer and unnecessary detentions.
[56] Justice Charron also found that the suspension of s. 10(b) flowed from the strict time constraints that the Criminal Code placed on police officers. The sobriety checks at issue in Orbanski were often used to determine if the police had reasonable grounds to demand a breathalyzer test. However, at the time, the police faced a two-hour time limit in which to make a breathalyzer demand.[2] Thus, providing the right to counsel could have pushed the time frame beyond those two hours and hindered the investigative purposes of the Manitoba Highway Traffic Act.
[57] The Court further concluded that the limit was a reasonable one, within the meaning of R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103. Again, Charron J. stressed the limitation on the right to counsel has “strict temporal limits”: at para. 57.
[58] Turning to proportionality, Charron J. wrote that any risk of self-incrimination during a sobriety stop was addressed by limiting the use made of an accused person’s response to police questioning. The answers may only be used to supply the grounds for making a breathalyzer demand, and not as positive proof of impairment: at para. 59, citing R. v. Milne (1996), 1996 CanLII 508 (ON CA), 28 O.R. (3d) 577(C.A.), leave to appeal refused, [1996] S.C.C.A. No. 353.
[59] In his dissenting reasons, LeBel J. concluded that the Manitoba Highway Traffic Act did not impliedly limit the right to counsel. Thus, the infringement of s. 10(b) at issue could not be justified pursuant to s. 1. Although he acknowledged the serious danger posed by drunk driving, he refused to adopt “a strained legal interpretation to sidestep inconvenient Charter rights for the greater good”: at para. 70. Justice LeBel observed that neither accused was legally required to answer police questions, participate in sobriety tests, or otherwise participate in the investigation; however, this might not have been known to them without consulting counsel. As he said, at para. 82: “There appears to be some concern that they might otherwise choose to exercise them [i.e. s. 10(b) rights] … In this manner, effective law enforcement would come to depend on individuals’ ignorance of their legal rights.”
[60] Over the years, Orbanski has been cited and applied hundreds of times, sometimes by the Supreme Court. It is not necessary to distill and summarize this jurisprudence. But for present purposes, it is worth noting the reference to Orbanski in R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, a case dealing with s. 9 of the Charter in the context of investigative detentions. The Court considered the Crown’s submission that a general suspension of the right to counsel during the course of short “investigatory” detentions was necessary and justified under s. 1 of the Charter. This was said to derive from the operating requirements of the common law police power to detain individuals for investigative purposes.
[61] The Court rejected this extension of Orbanski. McLachlin C.J.C. and Charron J. wrote, at para. 45:There is no question that the right to counsel, as any other right guaranteed by the Charter in case of detention, is subject to reasonable limitations as prescribed by law under s. 1. For example, in R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3, the fact that there was a detention was not in issue. Indeed, the police directive to pull over coupled with the restrictive demand that the driver perform sobriety tests provided a clear basis to ground a detention. Charter rights were therefore triggered, though ultimately the breach was saved under s. 1 of the Charter. However, we are not persuaded, on this appeal, that a case has been made out for a general suspension of the s. 10(b) right to counsel for investigatory purposes, with or without some form of use immunity. In our view, the invitation by counsel for the Court to consider s. 1 in order to suspend the right to counsel is premised on an unduly expansive notion of the meaning of detention that is inconsistent with the purposive approach to detention taken in Grant. Because the definition of detention, as understood in these reasons, gives the police leeway to engage members of the public in noncoercive, exploratory questioning without necessarily triggering their Charter rights relating to detention, s. 1 need not be invoked in order to allow the police to effectively fulfill their investigative duties. [Emphasis added.] [62] This cautious approach to the suspension of s. 10(b) Charter rights through the recognition of implied operating requirements in statutory or common law police powers must inform our approach to s. 12 of the CCA. At paras 67-83 the court considers the application of Charter s.10(b) ['right to counsel'] to CCA s.12 ['Transporting cannabis'].
. R. v. Kostuk [mental capacity to use counsel advice]
In R. v. Kostuk (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here from a conviction of second degree murder.
The court considers the Charter s.10(b) right to counsel, here where questions were raised as to the detainee's cognitive capacity (due to mental illness) "respecting their participation in the investigatory process":[25] Section 10(b) guarantees that anyone who is arrested or detained has a right “to retain and instruct counsel without delay and to be informed of that right”. This section’s purpose is to prevent the police from eliciting incriminating evidence before a detainee has had the opportunity to speak with counsel or has unequivocally waived the right to do so: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460. Put another way, s. 10(b) grants to a detainee the right to choose whether to cooperate with a police investigation or not.
[26] The right to counsel is typically a “one-time matter”: R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 64, which is to say that once a detainee has consulted with counsel they have no protected guarantee of a subsequent consultation. There are exceptions, however. The police may be required to provide a second opportunity to consult counsel in three situations: when there are new procedures involving the detainee; when there is a change in legal jeopardy facing the detainee; or when the police have reason to believe that the information provided was deficient – including if it becomes clear that the detainee did not understand the advice given or does not understand their rights: Sinclair, at para. 2. These exceptions advance s. 10(b)’s purpose of ensuring that detainees are able to make informed choices concerning the investigation, their liberty, and the legal jeopardy they face.
(a) Mental illness does not automatically negate consultations with counsel
[27] Importantly, in order to make a meaningful choice respecting their participation in the investigatory process, a detainee must possess a certain basic cognitive capacity. The standard for assessing capacity in the s. 10(b) context is the same as the “operating mind” standard that applies under the common law confessions rule. As the Supreme Court held in R. v. Tessier, 2022 SCC 35, 473 D.L.R. (4th) 317, at para. 8, to have had an operating mind at the time a statement was made, the accused must have “possessed the limited cognitive ability to understand what they were saying and to comprehend that the statement might be used as evidence in criminal proceedings”.
[28] In R. v. Whittle, 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914, at pp. 941-42, the Supreme Court made it clear that the presence of a mental illness does not in and of itself mean legal advice was not understood or that a statement must be involuntary: see also R. v. Nagotcha, 1980 CanLII 30 (SCC), [1980] 1 S.C.R. 714, at p. 716. Rather, the question is whether the accused was “so devoid of rationality and understanding, or so replete with psychotic delusions, that his uttered words could not fairly be said to be his statements at all”: Whittle, at p. 936, quoting R. v. Santinon (1973), 1973 CanLII 1532 (BC CA), 11 C.C.C. (2d) 121 (B.C.C.A.).
[29] This means that a detainee can have an operating mind even when experiencing psychosis at the time a statement is given. In Whittle, for example, the Supreme Court affirmed this court’s conclusion that “in spite of [the appellant’s] psychosis, some of [his] comments reflected reasonable rationality”, and that “even if the appellant was driven by inner voices, this was no compulsion emanating from persons in authority over the appellant”. His statement was therefore the product of an operating mind.
[30] To establish a Charter breach, the burden was on the appellant to prove, on a balance of probabilities, that he did not have an operating mind at the time he gave his statement[1]. .... . R. v. Samuels
In R. v. Samuels (Ont CA, 2024) the Ontario Court of Appeal considered Charter s.10(b) ['right to counsel'] law:(1) The law
[23] Section 10(b) of the Charter places two different duties on police officers who detain suspects. As Doherty J.A. explained in Rover, at para. 25:Section 10(b) obliges the police to advise a detained person of the right to speak with counsel without delay and, if the detained person exercises that right, the police must immediately provide the detainee with a reasonable opportunity to speak to counsel. [Citations omitted.] There is no dispute in this case that the police properly complied with their informational duty, and that the appellant exercised his right by immediately asking to speak to counsel. The issue is with the subsequent police delay in carrying out their implementational duty.
[24] When access to counsel is delayed, as it was here, “[t]he burden is on the Crown to show that a given delay was reasonable in the circumstances”: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 24; R. v. Hobeika, 2020 ONCA 750, 153 O.R. (3d) 350 at para. 73. In R. v. Keshavarz, 2022 ONCA 312, 413 C.C.C. (3d) 263, at para. 71, Fairburn A.C.J.O. explained:[I]n specific circumstances the implementational component of the right to counsel may be suspended. Those specific circumstances often involve concerns over police or public safety or the preservation of evidence. [Citations omitted.] The need to execute search warrants can sometimes justify a suspension of the right to counsel. However, the police must have “turned their minds to the specific circumstances of the case”; they must have “reasonable grounds to justify the delay”; and they “must move as efficiently and reasonably as possible to minimize any ensuing delay”: Keshavarz, at paras. 71-75; see also Rover, at paras. 26-27, 33.
....
(1) When did the s. 10(b) breach start?
[36] I agree with the Crown that the breach of the appellant’s s. 10(b) Charter rights only started once it would have been feasible for the appellant to speak with counsel in private. Even if the police had not decided to delay the appellant’s ability to speak to counsel, it would still have taken them approximately 20 minutes after his arrest to transport him to the police station, and some additional time to complete the booking procedure and arrange a phone call. The appellant’s collapse onto the booking room floor a few minutes after he arrived at the station would then have delayed things further.
[37] However, in my view it would have been reasonably practicable for the police to have put the appellant in touch with counsel by around 2:45 p.m. By this time they had addressed the medical and safety concerns arising from the appellant’s collapse, and the appellant had recovered and was insisting on speaking to counsel immediately. The only reason this did not happen at this time is because Det. Veal had already decided that the appellant’s right to speak with counsel would be suspended until the search warrants had been obtained and executed. Indeed, the video reveals that nearly all of the time between 2:30 p.m. and 3:12 p.m., when the appellant was taken to the cells, was taken up by the appellant and the police arguing about whether he would be allowed to speak to a lawyer. If the police had acceded to the appellant’s repeated requests to speak to counsel, it would likely have only taken them a few minutes to arrange a phone call.
(2) When did the s. 10(b) breach end?
[38] I would find further that the breach of the appellant’s s. 10(b) Charter rights continued until he first spoke with counsel at 11:50 p.m., and that he did not waive his s. 10(b) Charter rights when he gave PC Simon his mother’s name and phone number at 8:30 p.m., rather than immediately giving the officer the name of a lawyer (which he did provide a few minutes later).
[39] I acknowledge that the appellant might possibly have been able to speak to counsel sooner if he had given PC Simon the name of a lawyer when he was first asked for one. This is a relevant consideration to bear in mind in the s. 24(2) analysis. However, I do not agree with the Crown that the appellant’s conduct amounted to an implicit waiver of his s. 10(b) Charter rights. “[T]he standard for waiver [is] high, especially in circumstances where the alleged waiver has been implicit”: R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at p. 192. As Lamer C.J.C. noted in R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236, at pp. 274-75:Given the importance of the right to counsel ... once a detainee asserts the right there must be a clear indication that he or she has changed his or her mind, and the burden of establishing an unequivocal waiver will be on the Crown. [Citations omitted.] [40] In this case, the appellant repeatedly and vociferously asserted his right to counsel for more than an hour after his arrest. While it might have been imprudent for him five hours later to have tried to get PC Simon to call his mother before calling a lawyer, I am not prepared to draw the inference that he had changed his mind about wanting to speak with a lawyer. Indeed, PC Simon did not draw this conclusion either, since when he learned that the person he first called was not a lawyer, he spoke to the appellant again and obtained a lawyer’s name.
[41] I would add that the appellant also had no reason to believe at 8:30 p.m. that giving PC Simon his mother’s name and number would delay his speaking with a lawyer for more than three more hours. It is implausible that the appellant was undergoing medical treatment continuously between 8:30 p.m. and 11:50 p.m., such that his call with counsel could not have been arranged earlier. I would accordingly find that the Crown has not met its burden of demonstrating that the delay between 8:30 p.m. and 11:50 p.m. was “reasonable in the circumstances”: Taylor, at para. 24.
[42] I would also add that even if I were to find that the appellant did implicitly waive his s. 10(b) Charter rights at 8:30 p.m., his rights were reengaged when the police found the gun in his vehicle at 9:45 p.m., which significantly changed his jeopardy: see, e.g., R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138, at pp. 152-53; R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, at p. 892. At most, a finding of waiver at 8:30 p.m. would only reduce the duration of the s. 10(b) Charter breach by an hour and a quarter. . R. v. Vassel
In R. v. Vassel (Ont CA, 2024) the Ontario Court of Appeal dismissed a defendant's criminal appeal, here where the defendant argued at trial a Charter 10(b) right-to-counsel breach - but evidence was still allowed in under Charter 24(2):[29] In my respectful opinion, the trial judge’s final characterization of the second Grant factor as “neutral” does not follow from her otherwise substantially correct analysis. While the impact of the breach on the appellant’s Charter-protected interests may have been attenuated, for the reasons the trial judge identified, I agree with Mr. Halfyard that it was not eliminated entirely. Even if the breach did not ultimately cause the appellant to suffer any lasting prejudice, the lengthy delay before he could speak with his counsel of choice can still be presumed to have caused him psychological stress that affected his security of the person: see Rover, at para. 46; R. v. Jarrett, 2021 ONCA 758, 498 C.R.R. (2d) 38, at para. 52.
[30] As Doherty J.A. observed in Rover, at para. 45:The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated. See also R. v. Dussault, 2022 SCC 16, 468 D.L.R. (4th) 589, at para. 56. The psychological value of the appellant being allowed to speak with a lawyer he already knew, and presumably trusted, should also not be underestimated: see e.g., R. v. McCallen (1999), 1999 CanLII 3685 (ON CA), 43 O.R. (3d) 56 (C.A.), at p. 67. There were also practical reasons for the appellant to want to speak to his own lawyer, rather than merely to duty counsel. It is reasonable in the circumstances to assume that he would have wanted not simply to get legal advice about the bail process, but also to arrange for someone to represent him at his bail hearing. While the delay in putting the appellant in contact with his own lawyer may not have delayed his bail hearing, as the trial judge found, it still resulted in his spending more than eight hours in a state of greater uncertainty than he would have experienced if his s. 10(b) rights had been respected. . R. v. Brown
In R. v. Brown (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal, here involving Charter s.10(b) right to counsel 'implementation delays':(a) The principles governing s. 10(b) implementational delays
[32] Section 10(b) of the Charter stipulates that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.
[33] This provision has both “informational” and “implementational” components. Upon arrest or detention, police must “immediately” advise a detainee of their right to counsel. If the detainee asks to speak to counsel, police must facilitate a lawyer call “at the first reasonably available opportunity.” Until that implementational obligation is discharged, police must refrain from attempting to elicit evidence from the accused: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 38; R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at paras. 24-28.
[34] Recently, in R. v. Brunelle, 2024 SCC 3, 92 C.R. (7th) 219, the Supreme Court explained that whether the delay in exercising the right to counsel is reasonable is a “factual and highly contextual inquiry”. Barriers to access or “exceptional circumstances” cannot be assumed; they must be proved by the Crown: Brunelle, at para. 83.
[35] This court arrived at a similar conclusion in R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 33, where it held that the law permits a delay in the facilitation of the right to counsel, but only where the police have turned their minds to the “specific circumstances of the case” and have “reasonable grounds” to justify the delay. The justification may be premised on the risk of “the destruction of evidence, public safety, police safety, or some other urgent or dangerous circumstance”: Rover, at para. 33.
[36] Where those circumstances exist, the police must move as efficiently and sensibly as possible to minimize any ensuing delay: R. v. Keshavarz, 2022 ONCA 312, 413 C.C.C. (3d) 263, at para. 75; see also Rover, at para. 27. . 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.
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[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.
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