Section 10(b) of the Canadian Charter of Rights and Freedoms reads:

10. Everyone has the right on arrest or detention

[…]

 (b) to retain and instruct counsel without delay and to be informed of that right…

As the Supreme Court held in R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 38, s. 10(b) imposes two duties on the police – an informational duty and an implementational duty.

The informational duty requires that the detainee be informed of the right to retain and instruct counsel without delay. The implementational obligation requires the police to provide the detainee with a reasonable opportunity to retain and instruct counsel.

The onus lies on the Applicant to demonstrate that his/her right to counsel was violated under s.10(b) of the Charter.

Rights to Counsel and the Role of the Police

In most cases the police may infer that the detainee understands the rights read to them. 

Police do not have a duty to positively ensure that a detainee understands what the rights under s. 10(b) entail. Officers are only required to communicate those rights to the detainee.

R. v. Culotta, 2018 ONCA 665, at para. 38.

Absent special circumstances indicating that a detainee may not understand the s. 10(b) caution (such as language difficulties or a known or obvious mental disability), police are not required to assure themselves that a detainee fully understands the s. 10(b) caution.

R. v. Bartle, [1994] 3 S.C.R. 173, at p. 193;

 R. v. Baig, [1987] 2 S.C.R. 537, at p. 540;

R. v. Feeney, [1997] 2 S.C.R. 13, at paras. 108-09 per L’Heureux-Dubé (dissenting);

R. v. Evans, [1991] 1 S.C.R. 869, at p. 891;

R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 31

However, where there is a positive indication that the detainee does not understand his or her rights to counsel, the police cannot rely on a mechanical recitation of those rights.  They must make reasonable efforts to explain those rights to the detainee.

Evans, at p. 892.

“Special circumstances” that invoke an additional duty on the part of the police

Canadian courts have recognized the following as special circumstances where police may be required “to reasonably ascertain” that the detainee understands his/her rights to counsel:

·       Intoxication: where the accused is so intoxicated that he/she cannot comprehend his/her legal rights.

R. v. Mohl(1987), 1987 CanLII 4855 (SK CA), 34 C.C.C. (3d) 435 (Sask. C.A.), rev’d on other grounds 1989 CanLII 101 (SCC), [1989] 1 S.C.R. 1389.

·       Cognitive limitations:

R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869.

·       Problems with Language Comprehension

R. v. Vanstaceghem (1987), 36 C.C.C. (3d) 142 (Ont. C.A.).

·       Emotional Distress

R. v. S.L.H., 2004 BCSC 410 (CanLII).

Language Comprehension

Detainee is not under an affirmative obligation to request language assistance

A detainee is not under an affirmative obligation to request language assistance where it is apparent through his strong accent and laboured responses that he is not proficient in English.

R v Shmoel (1998), 38 WCB (2d) 363 (Ont Prov Ct).

Police are required to ensure that the detainee’s rights are communicated in a “meaningful and comprehensible manner”

Where special circumstances exist, it is incumbent on the police to either arrange for suitable language interpretation or explain the detainee’s rights to him slowly and ensure that he comprehends each and every line of the caution.

R v Singh, 2015 ONSC 7376 (CanLII), at para. 10; R v Gayah, 2004 ONCJ 33 (CanLII).

Context may Affect Comprehension

Understanding of language in certain contexts is not the same thing as understanding rights. Just because the Detainee has managed to function in Canadian society when he is not in trouble with the law does not mean that he was able to comprehend what was happening to him in his dealings with the police.

R v Singh, 2015 ONSC 7376 (CanLII), at para. 8; R. v. Blackduck, 2014 NWTSC 58 (CanLII). 

Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca (all rights reserved to author).