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Right to counsel when arrested and what that means for the police

You are arrested (perhaps for an impaired driving charge) and in police custody, asking to speak to counsel of your choice. Police contact this lawyer who does not pick up the phone. Police then ask you if you wish to speak to duty counsel. Is there any problem with this scenario? Recently, a decision of the Ontario Court of Justice found a breach of an accused person's section 10(b) rights to counsel of choice when the police asked the accused if he wished to speak to duty counsel while waiting for a call back from counsel of choice. The accused in that case was charged with refusing to provide a breath sample and being impaired. The accused brought a motion that the police had breached his section 10(b) rights under the Charter of Rights and Freedoms and that the evidence of his refusal should be excluded as evidence.

The facts in that case were that once at the police station, the accused provided the information of his counsel of choice. That counsel was called by police and a voice message was left to call back. After less than 10 minutes, the police asked if the accused wanted to call duty counsel. The accused spoke to duty counsel and eventually when in the breath technician room, he refused to provide a sample of his breath.

The Court emphasized that the accused had asked to speak to counsel of choice and that by the end of the call with duty counsel, he had still not be able to properly exercise his right to counsel (of choice). While the Court found nothing wrong with offering duty counsel to the accused, this did not cancel the original request to speak to counsel of choice. The issue for the Court was that the police did not ask the accused about speaking to duty counsel instead of his counsel of choice. As the Court noted, "The difficulty with that approach is that it seemed to leave the police with the impression that they had complied with s. 10(b) when they had not." Further, the police never asked the accused if he wanted to speak to another lawyer since his counsel of choice had not responded.

The Court in assessing the adequacy of the police efforts to facilitate access to counsel, concluded: "The police are not only in control of the means for a detainee to contact counsel. They are also the ones who inform detainees about their legal rights. I accept that the police cannot be expected to offer advice to detainees. But at the same time, it is hardly onerous to remind detainees that they may call any lawyer. Where the police are unable to reach counsel of choice, or it is apparent that counsel of choice is not responding, as a next logical step the police should ask the detained person whether he or she wishes to call another lawyer, or is content with duty counsel. That is especially so where, as here, someone has expressed dissatisfaction with the legal advice he has received form duty counsel." Ultimately, the Court found that the evidence of the refusal should be excluded as to admit the evidence would bring the administration of justice into disrepute.

This case follows similar cases of funneling by the police, where the police ask or suggest that an accused person contact duty counsel when counsel of choice cannot be reached. This case is another example of where the right to counsel of choice under s.10(b) is re-affirmed and is not curtailed - speaking to duty counsel after requesting counsel of choice may not be sufficient to meet the police obligations.

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Right to counsel when arrested and what that means for the police | Bayne Sellar Ertel Carter