Suspending the Right to Counsel

Section 10(b) of the Charter guarantees that upon arrest or detention every person shall have the right to retain and instruct counsel without delay. The rationale for the right was discussed by the Supreme Court of Canada in R. v. Suberu, 2009 SCC 33 (CanLII), at para 42:

     [T]he purpose of s. 10(b) is to ensure that individuals know of their right to counsel and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination.

The right to counsel is broken down into informational and implementational components. The informational component requires that the police advise the detainee of his or her right to retain and instruct counsel without delay and that the detainee be advised of the existence of Legal Aid and duty counsel. The implementational component requires that the police provide a detainee with a reasonable opportunity to exercise the right to counsel and that the police refrain from eliciting evidence from the detainee until he or she has had a reasonable opportunity to exercise the right to counsel: see R. v. Bartle, (1994), 1994 CanLII 64 (SCC), 92 C.C.C. (3d) 289 at 301 (S.C.C.).

Suspending the Implementation of the Right to Counsel

The case law has recognized that the implementational duties otherwise incumbent upon the police can be delayed in limited circumstances.

The assessment of whether a delay or suspension of the right to counsel is justified involves a fact specific contextual determination. The case law on this issue reveals some general guiding principles that provide a framework for this assessment:

a.   The suspension of the right to counsel is an exceptional step that should only be undertaken in cases where urgent and dangerous circumstances arise or where there are concerns for officer or public safety. Effectively, the right to counsel should not be suspended unless exigent circumstances exist: see R. v. Bartle, at p. 19; R. v. Suberu, at para. 42; and R. v. Learning, 2010 ONSC 3816 (CanLII) at para. 75.

b.   There is no closed list of scenarios where a delay or suspension of the right to counsel is justified. However, the following general categories emerge from the case law:

i.      Cases where there are safety concerns for the police, see R. v. Grant, 2015 ONSC 1646 (CanLII) at para. 107, R. v. J.J., 2010 ONSC 735 at paras 276-8, and R. v. Learning, at para. 75;

ii.      Cases where there are safety concerns for the public, see R. v. Thind, 2011 ONSC 2054 (CanLII) at paras. 113-15 and 122;

iii.      Cases where there safety concerns for the accused, see R. v. Strehl, 2006 CanLII 39572 (ON SC), 2006 CanLII 39572 (ONSC) at para. 4;

iv.      Cases where there are medical concerns, see R. v. Willier, 2010 SCC 37 (CanLII) at para. 8 and R. v. Taylor, 2014 SCC 50 (CanLII) at para. 31;

v.      Cases where there is a risk of destruction of evidence and/or an impact on an ongoing investigation, see R. v. Rover, 2016 ONSC 4795 (CanLII) at para. 66 and 70, R. v. Kiloh, 2003 BCSC 209 (CanLII) at para. 15 and 38, and R. v. Salmon, 2012 ONSC 1553 (CanLII) at para. 92; and,

vi.      Cases where practical considerations such as lack of privacy, the need for an interpreter or an arrest at a location that has no telephone access justify some period of delay, see R. v. J.(K.W.), 2012 NWTCA 3 (CanLII) at para. 29-30, and R. v. Khairi, 2012 ONSC 5549 (CanLII).

c.   The right to counsel cannot be suspended simply on the basis that a search warrant is pending, see R. v. Soto, 2010 ONSC 1734 (CanLII) at para. 69, and R. v. Liew and Yu, 2012 ONSC 1826 (CanLII) at para.70.

d.   A general or bald assertion of “officer safety” or “destruction of evidence” concerns will not justify a suspension of the right to counsel, see R. v. Patterson, 2006 BCCA 24 (CanLII) at para 41-42, and R. v. Proulx, 2016 ONCJ 352 (CanLII) at para.47.  Suspension of the Charter right requires more than a generic, non-case specific concern for officer safety, otherwise the right to counsel would be routinely suspended: R. v Shang En Wu, 2017 ONSC 1003 (CanLII), at para 92.

e.   Police officers considering whether circumstances justify suspending the right to counsel must conduct a case by case assessment aided by their training and experience. A policy or practice routinely or categorically permitting the suspension of the right to counsel in certain types of investigations is inappropriate.

f. In the absence of case-specific evidence, a general concern that Duty Counsel will inadvertently “tip off” associates of the accused resulting in the destruction of evidence will not justify the suspension of s. 10(b) rights.  While it is true that as a result of a call from Duty Counsel, an associate of a detainee may learn of a detainee’s arrest and may take steps to destroy evidence, this concern is often general or categorical in nature and adds little to the justification for a suspension of s. 10(b): R. v Shang En Wu, 2017 ONSC 1003 (CanLII), at para 91.

g.     The suspension of the right must be only for so long as is reasonably necessary, see: R. v. Mazza, 2016 ONSC 5581 (CanLII), at para. 83. In this regard, the police should be vigilant to ensure that once the decision has been made to suspend the right to counsel, steps are taken to review the matter on a continual basis. The suspension is not meant to be permanent or convenient. The police must still comply with the implementational component as soon as circumstances reasonably permit. A decision to suspend rights that is initially justifiable may no longer be justified if the police subsequently fail to take adequate steps to ensure that the suspension is as limited as is required in the circumstances.

h.   The longer the delay, the greater the need for justification. The right to counsel must be given “without delay.” The case law addressing the length of time the right to counsel has been suspended has examined periods of time as short as several minutes up to an extreme example of a suspension of the right to counsel for a period of approximately 26 hours; see Blakely v. Parker, 2007 CanLII 33123 (ON SCDC). In the latter case, the police were executing a warrant to seize multiple firearms from a known violent family and the target of the search was known to be part of a criminal organization that was willing to confront and shoot police.

i.   The suspension of the right to counsel must be communicated to the detainee, see: R. v. Rover, 2016 ONSC 4785 at para. 70.

See R. v Shang En Wu, 2017 ONSC 1003 (CanLII).