The Constitutional Right to Retain and Instruct Counsel
The Supreme Court of Canada has recognized that the purpose of the right to retain and instruct counsel guaranteed by section 10(b) of the Charter is “to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights”. A person who is detained or arrested is, “in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty”. The assistance of counsel helps to ensure that those who are in custody, and therefore in legal jeopardy, are positioned to make a voluntary and informed decision whether or not to speak, or otherwise cooperate, with the police.
Section 10(b) includes the right to consult a lawyer of one’s choosing
The Supreme Court of Canada has interpreted the right to retain and instruct counsel, guaranteed by section 10(b) of the Charter, as including a concomitant right to consult a lawyer of one’s choosing.
In Ross, the Court’s first decision recognizing that section 10(b) includes the right to consult a specific lawyer, two detainees were unable to contact their lawyers at 2:00 a.m. Before they were able to call their lawyers’ offices in the morning, police placed them in an identification line-up. This violated section 10(b), the Court held, because detainees have a “right to choose their counsel”. They are only expected to call another lawyer if their chosen lawyer “cannot be available within a reasonable time.” The duration of this period, it suggested, might be shortened by circumstances of “urgency” or some other “compelling reason”, but in that case, the line-up could have easily been held “a few hours later”.
In Willier, the Supreme Court of Canada reaffirmed its holding in Ross regarding the right to counsel of choice. Importantly, the Court in Williermade clear that section 10(b) requires not only that the police afford those detained a reasonable opportunity to contact a lawyer of their choosing but also imposes a positive duty on the police “to facilitate that contact”. In Willier, the Court also elaborated on what will qualify as a reasonable period of time to wait for counsel of choice, explaining that this will depend “on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation”.
When Police Assume the Responsibility of Contacting Counsel
There appears not to be anything constitutionally objectionable with the police assuming the responsibility of contacting counsel on behalf of those in their custody. That said, it is very much the function of the courts to assess the adequacy of police efforts in the discharge of their constitutional obligations. It follows that if the police assume the responsibility of contacting counsel of choice on behalf of a person who is in their custody, then it is for the courts to assess the adequacy of those efforts. Of course, this begs the question as to what standard should be used in evaluating the adequacy of police efforts.
If the police did not assume this responsibility, those in detention would be expected to exercise reasonable diligence in contacting their lawyer of choice. Where the police take on this function on behalf of the detainee, it seems eminently sensible to subject their efforts to the same standard.
R. v. Maciel, 2016 ONCJ 563 (CanLII)
What Constitutes Reasonable Diligence in Today’s World?
The Court in Maciel outlined the sort of steps that police in this day and age should undertake in order to obtain counsel’s contact details. At a minimum the steps should include:
• Asking the person in custody if they have a telephone number, or know anyone who has a telephone number, for the lawyer they want to contact;
• Giving the person in custody access to their cellular phone or smart phone, where they advise that they have the lawyer’s number stored on such a device;
• Conducting an Internet search to determine if the lawyer has a website and consulting any such website to locate a cellular phone number or e-mail address for the lawyer, and calling, texting, and/or e-mailing these;
• Using the Internet to search any available online directories, for example Canada 411, CanadianLawList, or the Law Society of Upper Canada’s Paralegal and Lawyer Directory.
• Using any available conventional paper based directories, both for lawyers and for phone numbers more generally (i.e. The White or Yellow Pages).
Further, given the obligation upon the police to be reasonably diligent in contacting counsel of choice, it would make good sense for them to properly memorialize the steps that they undertake as they endeavour to discharge their constitutional obligations.