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Cases explore police role in connecting accused with counsel

Several recent Ontario decisions may not only change the way in which police inform accused persons of how they can exercise the right to counsel in accordance with the Charter, but also how police may have to help implement that right, Hamilton criminal lawyer Jeffrey Manishen writes in The Lawyer’s Daily.

As Manishen, a senior partner with Ross & McBride LLP, explains, prior to the Supreme Court of Canada decision in R. v. Brydges [1990] S.C.J. No. 8, the standard practice was for police to call a lawyer at the accused’s request or to offer them the yellow pages listings of lawyers.

Brydges emphasized the importance of fair treatment of the detainee, because he was ‘in the control of the police and, as such, is not at liberty to exercise the privileges that he otherwise would be free to pursue.’ When the person did not have the ability to afford a lawyer, the police were obliged to inform him of the existence of duty counsel. This led to the establishment of the 1-800 phone system providing 24-hour assistance of duty counsel,” he writes.

Subsequently, says Manishen, judges have been asked to review police efforts to connect the accused with their counsel of choice and, in cases where they were unsuccessful, whether the advice from duty counsel was an adequate alternative.

As he explains, “the option of defaulting to duty counsel may no longer be as readily available to police in Ontario.” 

For example, the recent case of R. v. Vernon 2016 ONCA 211, involved an officer who waited a minute after placing a call to counsel of choice on a Sunday night before calling duty counsel.

“The accused’s evidence on the voir dire that he was given very little time to decide whether or not to speak to duty counsel and that he did so, thinking he had no other option, was accepted. The officer was found to have breached the informational component of the s.10(b) right, namely that the accused should have been told that he had the right to wait for a returned phone call rather than having to settle for duty counsel. Further, he did not fulfil the implementational duty by not waiting for a returned call or providing the accused with other means, such as a telephone directory, to facilitate contact with counsel of choice,” writes Manishen.

Ultimately, he says, the fact that the accused spoke with duty counsel “did not serve to adequately overcome the seriousness of the breach and the evidence was excluded.”

As Manishen explains, even when an accused expresses the desire to speak with a lawyer but does not have a name in mind, the police should not “steer” the accused to duty counsel. Instead, he writes, they should be prepared to provide him or her with access to the necessary means to be able to choose counsel for themselves.

“As stated by Justice Tory Colvin, in R. v. Vlasic [2016] O.J. No. 6892, ‘the person of unblemished record, faced with detention or arrest for the first time, will not likely have any idea who they should call. Allowing time to consult the Internet, the list of law society certified specialists or even the yellow pages, if they exist today, would be reasonable.’”

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