Criminal Law

Court of Appeal affirms right to timely access to counsel as ‘lifeline’

By Staff

A recent Ontario Court of Appeal ruling on timely access to counsel is an important recognition that for individuals in detention, the ability to speak to a lawyer soon after arrest is a lifeline, says London criminal lawyer Carolynn Conron.

The case involved a drug bust in which the accused dealer was put in a police cell and denied contact with his lawyer for six hours while police applied for a search warrant to raid his home. The court threw out the evidence gathered in the search because the man’s constitutional right to legal advice was delayed for no proper reason, says Conron, founder and principal of Conron Law, who was not involved in the case and comments generally.

The court said the right to counsel is important for detained persons — not only because of the opportunity to obtain legal advice and guidance, but it also gives them the sense they are not entirely at the mercy of the police, an important psychological protection, she tells

“This really struck a chord with me,” Conron says. “When I talk to people who are detained I tell them that, after they get off the phone with me, the police are going to ask them questions, in a room that’s audio- and video-recorded, and that they’re going to feel pressure to speak. If they say nothing, it can’t be used against them, but if they do choose to talk to police, it will be. It comes down to the idea that people shouldn’t be conscripted against themselves.”

The ruling recognizes that there are times when police can withhold access to counsel, but the scope for that is extremely limited, and does not include giving police time to get a search warrant, Conron says. It pointed out that the police force in question had a policy of arresting suspects and delaying their access to counsel while they obtained a warrant to search their property.

Even though in this case the police did not question the suspect, so there was no causal connection to the excluded evidence, the Ontario Court of Appeal recognized that there are more important values in society, and one of those is giving people access to their legal rights, she says.

“Because laypeople don’t always understand these rights, it’s particularly important they have access to someone who does know the law,” Conron says.

The court is considering the long-term impact to the justice system. If they let these violations slide, it gives police the sense they can breach people’s individual rights. If the rights can be violated for one person, they can be violated for anyone.”

Conron, who has run her own criminal law practice for more than five years, says police departments have different policies on arrest procedures.

“It depends on the jurisdiction. In my experience, often police will have already obtained the search warrant by the time they arrest someone or are conducting surveillance,” she says. That approach is more in line with Charter rights, Conron says.

“Police are doing their duty, but the Charter is the supreme law of the land,” she says. “Constitutional rights are there for a reason, and people forget that because in a generally safe and peaceful society we have the luxury of being able to take it for granted. But in many places you can’t take it for granted that the state won’t come into your house at any time and just look through your things,” Conron says.

She acknowledges that police sometimes don’t inform drunk, high or mentally unstable detainees of their rights to counsel because they think they’re in no condition to understand, but, Conron says they should do it anyway.

“It’s very quick to provide: Do you understand why you’re being charged, yes or no? Do you want to call a lawyer now, yes or no? Even if the answers to those questions are rambling and incoherent at least you’ve provided them in a timely way, and you can always provide them again later,” she says.

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