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.