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RIGHT TO COUNSEL

R. v. Taylor, 2014 SCC 50 (CanLII)

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Present:  Abella, Rothstein, Moldaver, Karakatsanis and Wagner JJ.

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                   Constitutional law — Charter of Rights — Right to counsel — Accused informed by police of his right to counsel — Accused informing police that he wished to speak to counselPolice failing to facilitate contact with counsel at scene of accident and hospitalBlood drawn from accused at hospital without accused being able to consult counsel and used as basis for conviction — Whether police’s failure to implement or facilitate access to counsel was in breach of accused’s right to retain and instruct counsel without delay — If so, whether evidence should be excluded — Canadian Charter of Rights and Freedoms, ss. 10(b) and 24(2).


                   The accused was arrested for impaired driving causing bodily harm when he lost control of his vehicle injuring three of his passengers. At the time of his arrest, he was informed of his Charter rights, including his right to counsel, and was asked whether he wanted to call a lawyer. The accused responded that he wanted to speak both to his father and to his lawyer. At no time was the accused given access to a phone while at the scene of the accident. As a precaution and in accordance with normal practice, the accused was taken by ambulance to the hospital for examination. At the hospital, a nurse took five vials of blood from the accused. The police later demanded and obtained a second set of samples of the accused’s blood for investigative purposes. At no point during the accused’s time in hospital did the police attempt to provide him with an opportunity to speak to his lawyer or determine whether such an opportunity was even logistically or medically feasible. The police successfully applied for a warrant to seize the first vials of blood the hospital took from the accused. The trial judge agreed with the Crown that the second set of blood samples were taken in violation of the accused’s s. 10(b) rights, but found that there was no breach of the accused’s s. 10(b) rights prior to the first samples being taken. This was based on the trial judge’s assumption that where an accused is awaiting or receiving medical treatment, there is no reasonable opportunity to provide private access to the accused to a telephone to implement his right to instruct counsel. The first set of blood samples were admitted at trial. On the basis of this evidence, the accused was convicted of three counts of impaired driving causing bodily harm. A majority in the Court of Appeal allowed the appeal, finding that the trial judge erred when he concluded that there was no reasonable opportunity to facilitate access to a lawyer prior to the taking of these blood samples. The evidence was excluded, the conviction set aside, and an acquittal entered.


                   Held:  The appeal should be dismissed.


                   Section 10(b) of the Charter provides that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. The purpose of the s. 10(b) Charter right is to allow an arrested or detained individual not only to be informed of his other rights and obligations under the law but also to obtain advice as to how to exercise those rights. Access to legal advice ensures that an individual who is under control of the state and in a situation of legal jeopardy is able to make a free and informed choice whether to cooperate with the police. The duty to inform a detained person of his or her right to counsel arises immediately upon arrest or detention and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee’s request to speak to counsel. The arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity. Until the requested access to counsel is provided, it is uncontroversial that there is an obligation on the police to refrain from taking further investigative steps to elicit evidence.


                   While the police are under no legal duty to provide their own cell phone to an arrested or detained individual, they nonetheless have a duty both to provide phone access at the first reasonable opportunity to avoid self-incrimination and to refrain from eliciting evidence from the individual before access to counsel has been facilitated. While s. 10(b) of the Charter does not create a right to use a specific phone, it does guarantee that the individual will have access to a phone to exercise his right to counsel. The burden is on the Crown to show that a given delay was reasonable in the circumstances.


                   An individual who enters a hospital to receive medical treatment is not in a Charter-free zone. Where the individual has requested access to counsel and is in custody at the hospital, the police have an obligation under s. 10(b) to take steps to ascertain whether private access to a phone is in fact available. In this case, one of the police officers admitted that at the hospital, he made a mistake and that he would have and could have given the accused the requested access if he had remembered to do so. Once at the hospital, it was 20 to 30 minutes before the hospital took any blood from the accused, more than enough time for the police to make inquiries as to whether a phone was available or a phone call medically feasible. At no point did the police even turn their minds to the obligation to provide access.

                    This is a case not so much about delay in facilitating access, but about its complete denial. This ongoing failure cannot be characterized as reasonable. Constitutional rights cannot be displaced by assumptions of impracticality. Barriers to access must be proven, not assumed, and proactive steps are required to turn the right to counsel into access to counsel. The accused’s s. 10(b) rights were clearly violated. The seriousness of the Charter breach and the impact of the police conduct on the accused’s interests warrant the exclusion of the evidence.

Jim O'Neil, LL.B.

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