780-686-7948

Available 24 hrs

Always here for you!

780-686-7948

Call Us Today!

Contact Us
logo
mobile logo
 

right to counsel

Edmonton Criminal Lawyer Ziv > right to counsel
10 April
1 Comment
Sticky

Counsel of Choice

Posted by Rory
in Charter Rights, right to counsel

Counsel of Choice

In a prior blog a wrote about cases that dissuade police agencies from “steering” detainees to speak with duty counsel (see for example R. v. Street 2016 SKPC 7 , R. v. Lafrance, 2015 SJ No. 35 and a new decision R. v. Clayton 2017 ONCJ 199). This counsel of choice issue continues to pop-up on a regular basis.

There is an inherent tension with the state making available free legal advice and an accused person being allowed to choose his/her own counsel.

In R. v. Clayton, supra Harris J at para 25 states:

… the government of its agents should not be involved in decisions about which counsel a person chooses and the subjective choice of the accused must be respected and protected and that the spectre of state interference in the choice of the accused must be avoided. Agents of the state have a duty to fastidiously avoid any interference with the personal decision … and make every reasonable effort to ensure that contact with the counsel of choice is facilitated”

Borrowing from the last thought “ensure that contact with counsel of choice is facilitated” I would add that police must ensure that detainees have been given every resource possible to obtain counsel of choice which includes a phonebook (See R. v. Wolbeck 2010 AJ No No 508 (ABCA) at para 21 and R. v. Juneck 2014 AJ No 1066 at paras 32-34), computer access as well as access to a 3rd party who can facilitate obtaining counsel of choice.

Duty counsel should not be the default position even when a detainee expresses the need for a “free” lawyer and he/she should not automatically be steered to duty counsel. There may be other lawyers who provided free preliminary legal advice, as well, and a detainee should be given a full opportunity to explore all avenues or obtaining legal advice.

 

10 April
0 Comments
Sticky

Counsel of Choice

Posted by Rory
in right to counsel

Counsel of Choice

In a prior blog a wrote about cases that dissuade police agencies from “steering” detainees to speak with duty counsel (see for example R. v. Street 2016 SKPC 7, R. v. Lafrance, 2015 SJ No. 35 and a new decision R. v. Clayton 2017 ONCJ 199).

There is an inherent tension with the state making available free legal advice and an accused person being allowed to choose his/her own counsel.

In R. v. Clayton, supra Harris J at para 25 states:

… the government of its agents should not be involved in decisions about which counsel a person chooses and the subjective choice of the accused must be respected and protected and that the spectre of state interference in the choice of the accused must be avoided. Agents of the state have a duty to fastidiously avoid any interference with the personal decision … and make every reasonable effort to ensure that contact with the counsel of choice is facilitated.

Borrowing from the last thought “ensure that contact with counsel of choice is facilitated” I would add that police must ensure that detainees have been given every resource possible to obtain counsel of choice which includes a phonebook (See R. v. Wolbeck 2010 AJ No No 508 (ABCA) at para 21 and R. v. Juneck 2014 AJ No 1066 at paras 32-34), computer access as well as access to a 3rd party who can facilitate obtaining counsel of choice.

Duty counsel should not be the default position and in fact just because a detainee expresses the need for a “free lawyer” should not automatically be steered to duty counsel. There are many, I think, lawyers who provided free preliminary legal advice out of a sense of duty.

When defending clients counsel should be aware of this counsel of choice issue and not be satisfied that a client spoke with duty counsel. If I was a detainee I wouldn’t make duty counsel my first choice.

04 March
0 Comments
Sticky

Right to Counsel

Posted by Rory
in Charter Rights, implemenational duties, right to counsel

Right to Counsel

Implementational Duties

 

In considering right to counsel, R v Street, 2016 SKPC 7, provides interesting insight into the nature of implementational duties under S 10 (b) of the Charter of Rights and Freedoms.

Facts: After being arrested for impaired driving, Street asked to speak to a lawyer by the name of McKay. The constable with her dialed the number, but did not wait for a response. He then dialed another number, and subsequently dialed Legal Aid. It was the Constable’s idea to call Legal Aid.

Analysis: Hinds J quotes R v Kreiser, 2013 SKPC 107 in explaining the nature of the duty under s 10 (b).

S 10 (b) or “the right to counsel has an information component and an implementation component. The information component requires the police to inform the detainee of the right to retain and instruct counsel without delay, and of the existence and availability of Legal Aid and duty counsel: R. v. Luong, 2000 ABCA 301.”

“The implementation component of the right to counsel is two-fold, and arises when the detainee expresses a desire to exercise the right to counsel. First, it requires the police to give the detainee a reasonable opportunity to contact counsel. Second, it requires the police to hold off on attempts to gather evidence until the detainee has had that reasonable opportunity (except, of course, in situations of urgency or danger): R. v. Luong, supra; R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310.”

The judge also uses Kreiser to note that these duties are not absolute and that reasonable diligence is required by the detainee in attempting to contact counsel.

The judge finds that the interpretational duty was violated in this case. In particular, he is concerned that the “Constable pushed Ms. Street in the direction of Legal Aid as a convenient way of fulfilling the requirements of section 10 (b) of the Charter when he dialed the telephone number for Legal Aid duty counsel at 3:24 a.m.”

The judge goes on to note that “Put another way, I am of the view that he streamed Ms. Street towards Legal Aid. I find that Constable Boprai did not act diligently in facilitating the right of Ms. Street to contact her counsel of choice. He could have and should have waited more than a few minutes for a return call from Mr. McKay. I find that Constable Boprai breached his implementational duty.”

Note: In cases where a detainee does not have a lawyer, or is unable to contact the lawyer of his/her choice, it is appropriate to remind him/her of legal aid options.