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Charter - s.10(b) Right to Counsel (4). R. v. Samuels
In R. v. Samuels (Ont CA, 2025) the Ontario Court of Appeal dismissed the defendant's criminal appeal, here brought against convictions for "two counts of possession of controlled substances (cocaine and crystal methamphetamine) for the purpose of trafficking".
The court considers the Charter s.10(b) right to counsel, here the effect of delay in advising of the right:iv. The section 10(b) issue
[63] Section 10(b) guarantees to everyone arrested or detained the right “to retain and instruct counsel without delay and to be informed of that right”. Where, upon being informed of the right, the detained person exercises it, the police must immediately provide the detainee with a reasonable opportunity to speak to counsel: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 38, 42; R. v. Jarrett, 2021 ONCA 758, 498 C.R.R. (2d) 38, at para. 41. Where the accused tells police the counsel they would like to speak to, police must make reasonable efforts to connect the detainee with counsel of choice “without delay”: R. v. Edwards, 2024 ONCA 135, 434 C.C.C. (3d) 225, at para. 36, citing R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 29.
[64] The appellant does not contend that the police delayed unreasonably in informing the appellant of his right to counsel; advice in that regard was provided to the appellant within minutes after his arrest. He argues that the delay thereafter was unreasonable.
[65] Some delay in providing access to counsel may be justified but the burden is on the Crown to show that the delay in the circumstances was reasonable. In R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at paras. 26-27, the court explained:[26] The s. 10(b) jurisprudence has, however, 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. For example, in R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, the court accepted that the police could delay providing access to counsel in order to properly gain control of the scene of the arrest and search for restricted weapons known to be at the scene. Subsequent cases have accepted that specific circumstances relating to the execution of search warrants can also justify delaying access to counsel until the warrant is executed: see e.g. R. v. Learning, 2010 ONSC 3816, 258 C.C.C. (3d) 68, at paras. 71-75.
[27] These cases have, however, emphasized that concerns of a general or non-specific nature applicable to virtually any search cannot justify delaying access to counsel. The police may delay access only 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. Even when those circumstances exist, the police must also take reasonable steps to minimize the delay in granting access to counsel: see e.g. R. v. Patterson, 2006 BCCA 24, 206 C.C.C. (3d) 70, at para. 41; R. v. Soto, 2010 ONSC 1734, at paras. 67-71; Learning, at para. 75; R. v. Wu, 2017 ONSC 1003, 35 C.R. (7th) 101, at para. 78.
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