“I forgot” – no excuse for infringing an accused’s right to counsel

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An innocent omission, a slip of the mind, an honest mistake of an arresting police officer is not sufficient to prevent the Court from excluding evidence obtained following a violation of an accused person’s right to counsel. Last Friday, the Supreme Court of Canada reinforced that right and determined that, notwithstanding the inadvertent nature of the police’s behaviour, the correct remedy was to exclude the evidence subsequently obtained.


In R. v. Taylor, 2014 SCC 50 the accused was driving a vehicle and failed to negotiate a turn. He crashed and injured three passengers. The accused himself was injured, albeit not seriously. The police arrested him at the scene of the accident for driving while impaired and causing bodily harm. After advising him of his Charter rights, including the right to retain counsel, and after the accused stated that he wanted to speak to a specific lawyer, the police seemed to have forgotten about that request. They got caught up in the attendance of the paramedics who attended to, amongst others, the accused. The paramedics recommended to the accused that, notwithstanding his relatively minor injuries, he attend at the hospital emergency ward to be checked over. While at the hospital, the nursing staff took two sets of blood samples, one pursuant to their normal admission procedures and one following the police’s request to obtain blood samples. During the entirety of the accused’s time in the emergency ward which spanned several hours, the police made no attempt to facilitate the accused’s request to call his lawyer. They made, in their own words, “a rookie mistake”.

The operative provision of the Charter was section 10(b). Section 10 provides:

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefore;

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

(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

In giving reasons for the Court, Abella J. explained the purpose behind s. 10(b) of the Charter [para. 21]:

The purpose of the s. 10(b) right is “to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights”: Manninen, at pp. 1242-43. The right to retain and instruct counsel is also “meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination”: R. v. Suberu, [2009] 2 S.C.R. 460, at para. 40. 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 choice to speak to the police investigators that is both free and informed”: R. v. Sinclair, [2010] 2 S.C.R. 310, at para. 25.

She cited Chief Justice Lamer’s direction in R. v. Bartle, [1994] 3 SCR 173 that the police must facilitate the right to counsel “without delay” and the three obligations that arresting police officers must fulfill [paras. 22 – 23]:

In R. v. Bartle, [1994] 3 S.C.R. 173, Lamer C.J. explained why the right to counsel must be facilitated “without delay”:

This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him- or herself. Accordingly, a person who is “detained” within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty . . . . Under s. 10(b), a detainee is entitled as of right to seek such legal advice “without delay” and upon request. . . . [T]he right to counsel protected by s. 10(b) is designed to ensure that persons who are arrested or detained are treated fairly in the criminal process.
[Emphasis added; p. 191.]

He also confirmed the three corresponding duties set out in Manninen which are imposed on police who arrest or detain an individual:

(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;

(2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and

(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

(Bartle, at p. 192, citing Manninen, at pp. 1241-42; R. v. Evans, [1991] 1 S.C.R. 869, at p. 890; and R. v. Brydges, [1990] 1 S.C.R. 190, at pp. 203-4.)

Applying those principles to the case at bar, Abella J. found that the police had ample opportunity to arrange for the accused to call his counsel. She expressly noted that a hospital emergency ward was not a Charter-free zone [para. 34]:

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, given the circumstances. Since most hospitals have phones, it is not a question simply of whether the individual is in the emergency room, it is whether the Crown has demonstrated that the circumstances are such that a private phone conversation is not reasonably feasible.

In this case, it was not about a delay in facilitating access to counsel but a complete denial of that access [para. 35]. She held, therefore, that both sets of blood were obtained in violation of the accused’s s. 10(b) Charter rights.

In contradistinction to the result in the recently decided R. v. Spencer, 2014 SCC 43, Abella J. held that the evidence obtained (the blood samples) had to be excluded. She noted at paragraph 37 of her reasons that, in assessing an application to exclude evidence pursuant to s. 24(2) of the Charter, “a court must assess and balance the effect of admitting the evidence on the public’s confidence in the justice system, having regard to ‘the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the accused, and the societal interest in an adjudication on the merits’: R. v. Grant, [2009] 2 S.C.R. 353, at para. 85.” In applying this test, she noted that, while the police’s failure to facilitate access to counsel was not wilful or deliberate, it fell far short of the conduct expected of arresting police officers. Accordingly the infringing state conduct was very serious. The impact on the accused was also serious. In her words, “[a]rrested individuals in need of medical care who have requested access to counsel should not be confronted with a Hobson’s choice between a frank and open discussion with medical professionals about their medical circumstances and treatment, and exercising their constitutional right to silence” [para. 40]. The taking of the accused blood samples, after he had requested access to counsel compromised his autonomy, dignity and bodily integrity [para. 41]. In the overall balance, she determined that the administration of justice would be brought into disrepute if the blood samples were admitted into evidence.

When one compares Spencer and Taylor, one notes that in both cases, the police officers did not intend to infringe the accused’s rights. The difference seems to be that in Spencer, the infringement was in relation to an area of accused rights that had not been previously litigated and judicially clarified (Internet service provider records and the accused’s expectation of privacy in relation to them) whereas, in Taylor, the acquisition of blood samples relative to an accused’s request to counsel had been clearly defined many times before. In the end, Taylor is a good reminder to police and law enforcement agencies to remain abreast of the law and to be vigilant in respecting the rights of accused. Rookie mistakes are not an excuse.

I remain

Constitutionally yours

Arthur Grant

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