Counsel of Choice

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.