Delayed Access to Counsel

Section 10(b) of the Charter guarantees to anyone arrested or detained the right “to retain and instruct counsel without delay and to be informed of that right”.

Section 10(b) obliges the police to advise a detained person of the right to speak with counsel without delay and, if the detained person exercises that right, the police must immediately provide the detainee with a reasonable opportunity to speak to counsel.

The section 10(b) Charter right to consult counsel without delay exists because those who are arrested or detained are apt to require immediate legal advice that they cannot access without help, because of their detention.

 R. v. Bartle, [1994] 3 S.C.R. 173, at p. 191;

R v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 41.

The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.

R. v. Rover, 2018 ONCA 745, 143 O.R. (3) 135, at para. 45.

An Applicant Asserting a 10(b) Breach is not Required to give Evidence as to why he Requires his Right to be Respected

A detainee is not required to offer direct evidence about why he requires access to counsel without delay.  

R. v. Noel, 2019 ONCA 860, at para. 27.

The Impact of Delayed Access to Counsel

In assessing the impact of such breaches under the Grant framework for section 24(2) of the Charter, it is not appropriate for courts to plumb the content and significance of the conversations a detainee would have had, if his right to consult counsel without delay had been respected.  The impact of the loss of the right to consult counsel without delay can be evaluated based on the interests it is meant to protect along with the length of the delay.

R. v. Noel, 2019 ONCA 860, at para. 27.

The loss of this right is in no way neutralized because the right to consult counsel is delayed, as opposed to denied. Nor is the impact of delayed access to counsel neutralized where an accused fails to demonstrate that the delay caused them to be unable to have a late but meaningful conversation with counsel. 

Noel, at para. 22.

The Seriousness of Delayed Access to Counsel

The seriousness of a section 10(b) implementational breach cannot be attenuated by the fact that the police did not commit an additional breach of the accused’s rights. 

See, for instance R. v. Noel, 2019 ONCA 860:  the trial judge erred in concluding that the seriousness of the section 10 breach had been attenuated because police complied with their obligation to hold off questioning the arrestee until after contact with counsel had been facilitated. It would have been yet another s. 10(b) breach had the police attempted to use the arrestee as a source of self-incriminating evidence before he had a reasonable opportunity to speak to counsel.

Stuart O’Connell, O’Connell Law Group (All rights reserved to author.)