The Adequacy of Police Efforts to Facilitate Contact between an Accused who has been Detained/Arrested and his Lawyer of Choice
The Constitutional Right to Retain and Instruct Counsel
The Supreme Court of Canada has
recognized that the purpose of the right to retain and instruct counsel
guaranteed by section 10(b) of
the Charter is “to allow the
detainee not only to be informed of his rights and obligations under the law
but, equally if not more important, to obtain advice as to how to exercise
those rights”. A person who is detained or arrested is, “in immediate
need of legal advice in order to protect his or her right against
self-incrimination and to assist him or her in regaining his or her liberty”.
The assistance of counsel helps to ensure that those who are in custody, and
therefore in legal jeopardy, are positioned to make a voluntary and informed
decision whether or not to speak, or otherwise cooperate, with the police.
Section 10(b) includes the right to consult a lawyer of one’s choosing
The Supreme Court of Canada has
interpreted the right to retain and instruct counsel, guaranteed by section 10(b) of the Charter, as including a concomitant right to consult a lawyer of
one’s choosing.
In Ross, the Court’s first decision recognizing that section 10(b) includes the right to consult a
specific lawyer, two detainees were unable to contact their lawyers at 2:00
a.m. Before they were able to call their lawyers’ offices in the morning,
police placed them in an identification line-up. This violated section 10(b), the Court held, because detainees
have a “right to choose their counsel”. They are only expected to call another
lawyer if their chosen lawyer “cannot be available within a reasonable time.”
The duration of this period, it suggested, might be shortened by circumstances
of “urgency” or some other “compelling reason”, but in that case, the line-up
could have easily been held “a few hours later”.
In Willier, the Supreme Court of Canada reaffirmed its holding in Ross regarding the right to counsel
of choice. Importantly, the Court in Willier
made clear that section 10(b)
requires not only that the police afford those detained a reasonable
opportunity to contact a lawyer of their choosing but also imposes a positive
duty on the police “to facilitate that contact”. In Willier, the Court also elaborated on what will qualify as a
reasonable period of time to wait for counsel of choice, explaining that this
will depend “on the circumstances as a whole, and may include factors such as
the seriousness of the charge and the urgency of the investigation”.
When Police Assume the Responsibility of Contacting Counsel
There appears not to be anything
constitutionally objectionable with the police assuming the responsibility of
contacting counsel on behalf of those in their custody. That said, it is very
much the function of the courts to assess the adequacy of police efforts in the
discharge of their constitutional obligations. It follows that if the police
assume the responsibility of contacting counsel of choice on behalf of a person
who is in their custody, then it is for the courts to assess the adequacy of
those efforts. Of course, this begs the question as to what standard should be
used in evaluating the adequacy of police efforts.
If the police did not
assume this responsibility, those in detention would be expected to exercise
reasonable diligence in contacting their lawyer of choice. Where the police
take on this function on behalf of the detainee, it seems eminently sensible to
subject their efforts to the same standard.
R. v. Maciel, 2016 ONCJ
563 (CanLII)
What Constitutes Reasonable Diligence in Today’s World?
The Court in Maciel outlined the sort of steps that police in this day and age should
undertake in order to obtain counsel’s contact details. At a minimum the steps should include:
•
Asking the person in custody if they have a telephone number, or
know anyone who has a telephone number, for the lawyer they want to contact;
•
Giving the person in custody access to their cellular phone or
smart phone, where they advise that they have the lawyer’s number stored on
such a device;
•
Conducting an Internet search to determine if the lawyer has a website
and consulting any such website to locate a cellular phone number or e-mail
address for the lawyer, and calling, texting, and/or e-mailing these;
•
Using the Internet to search any available online directories, for
example Canada 411, CanadianLawList, or the Law Society
of Upper Canada’s Paralegal and Lawyer Directory.
•
Using any available conventional paper based directories, both for
lawyers and for phone numbers more generally (i.e. The White or Yellow Pages).
Further, given the obligation
upon the police to be reasonably diligent in contacting counsel of choice, it
would make good sense for them to properly memorialize the steps that they
undertake as they endeavour to discharge their constitutional obligations.
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