The Right to Retain and Instruct Counsel: the Intoxicated Lawyer

The right to effective counsel is a constitutionally protected right, an aspect of an accused’s right to make full answer and defence and right to a fair trial.  That right may inform the information obligations that police have to an accused under section 10 (b) of the Charter.


What are police to do when they have reason to believe counsel is ineffective?  Our courts are required to presume professional competence, absent proof to the contrary. The same presumption applies to the police when they consider the competence of the lawyer consulted by the accused. The following rule out of R. v. Dubeau is hinged on this presumption--

Police are not obligated to provide an additional section 10(b) informational warning (advising the accused of the right to consult effective counsel) unless they have reasonable grounds to believe, and do believe, that there exist factors (such as alcohol consumption) which, on a balance of probabilities, reasonably lead to a conclusion that counsel’s competence has been compromised to the point of counsel no longer being able to provide effective representation.

R. v. Dubeau, 1998 ABPC 15 (CanLII), at para. 56.

[In which the accused claimed that his lawyer was impaired, that police were aware of this, and that in such circumstances the police had a constitutional duty to tell the accused of his right to consult with non-impaired legal counsel]. 

This rule out of Dubeau offers an interesting and practical compromise between balancing two ostensibly conflicting directives: on one hand, the police are not to take steps which have as their goal or effect the undermining of the accused’s confidence in his or her lawyer (R. v. Burlingham (1995) 1995 CanLII 88 (SCC), 97 C.C.C. (3d) 385 (S.C.C.) at p. 397) and on the other an accused must be possessed of sufficient information to allow him or her to make an informed choice as regards exercising his/her right to counsel” (R. v. Bartle (1994) 1994 CanLII 64 (SCC), 92 C.C.C. (3d) 289 (S.C.C.), at p. 302).



Stuart O'Connell, O'Connell Law Group (leadersinlaw.ca).




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