Criminal Law

Ruling upholds 'freestanding right' to counsel: Forstner

By Peter Small, Contributor

The Ontario Court of Appeal has issued a decision that strongly affirms that a suspect's right to consult a lawyer is a psychological lifeline when they are detained by police, Oshawa criminal lawyer Lawrence Forstner tells

“What I really liked about the case is that it focuses squarely on the psychological benefits,” says Forstner, principal of Forstner Law.

“It’s a recent reflection of the importance of access to counsel as a freestanding right,” he says.

Justice David Doherty, writing for the majority, overturned the drug convictions of a Whitby, Ont., man because police delayed his access to a lawyer for almost six hours while they obtained and executed a search warrant on his home.

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,” Doherty noted.

“The right to counsel is a lifeline for detained persons,” he wrote.

“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,” Doherty said.

Forstner, who was not involved in the case and comments generally, says the court’s view aligns with his understanding of the clients he has encountered during a lengthy career in the justice system, first as a probation officer and then a lawyer.

“That moment when you're being arrested, or the police are coming into your home to search, especially for people who don't have a history with the law, it's an incredibly deer-in-the-headlights moment,” he says. “The mental and psychological health of the individual really deteriorates.”

According to behavioural theory, when an individual's anxiety increases, their ability to think and process information decreases, Forstner says.

“So it can be a very traumatic experience as the moments draw out before they're given access to counsel. They start to feel that there's nobody out there who can help them,” he says. “In a matter of an hour or two, people can decompensate.”

Once given the chance to contact a lawyer, the simple act of hearing a voice say, “I’m for you,” enhances a client's well-being, Forstner says.

“It’s the first time they get to exhale, and they can begin to think again,” he says.

Forstner says the recent ruling is noteworthy because it found the breach had a significant impact on the rights of the accused even though police did not try to take advantage of, or question him while they denied him access to a lawyer.

It’s also important, he says, that Doherty criticized the systemic nature of the breach since police routinely kept detained individuals incommunicado while executing a search warrant.

The decision is particularly timely, Forstner says, because of a proliferation of internet-related cases where police execute search warrants on the homes of people with no previous encounters with the law.

“And those people — in a number of cases that I'm working on — were unable to think clearly,” he says. “They were literally terrorized in their home.”

In those instances, police obtained incriminating statements while the search was underway, Forstner says.

“They may or may not have cautioned my clients properly, but my issue in these cases would be how psychologically damaged are those people at that moment?” he asks.

Forstner engages in “therapeutic jurisprudence” — a legal approach that emphasizes that all human and legal interactions have the potential to produce therapeutic or anti-therapeutic effects — and says this decision is particularly apt.

“I think it will allow us to focus more on the psychological effects on the individual, and whether those effects can actually get in the way of understanding the rights that have been explained to you,” he says.

Although lip service is often paid to the concept of being innocent until proven guilty, not enough attention is given to how the justice system hurts a defendant’s ability to deal with their challenges in a healthy way, Forstner says.

Most of his clients are terrified by the justice system, he says, suggesting that extra steps should be built in to verify that people actually understand what police are telling them.

Officers should perhaps be required to have more understanding and concern for the psychological effects of their actions on an individual's ability to effectively hear, understand, and exercise their rights, Forstner says.

And if police insist on trying to elicit a statement from an occupant during a search, they should at least videotape the caution they issue informing them of their rights, he says.

“They really shouldn't be interrogating these people in their home, even if they waive their rights, because how comprehensive and informed could that waiver of rights be when psychologically speaking, the individual has just experienced something akin to a home invasion?” Forstner says.

To Read More Lawrence Forstner Posts Click Here