SECTION 10(B) - RIGHT TO COUNSEL - DETAINEES MUST BE REASONABLY DILIGENT IN EXERCISING RIGHT TO COUNSEL OF CHOICE

Ms. Dufault argued at her impaired driving trial that her right to counsel was violated because the constable interfered with her right to counsel of choice. She testified that on the way to the police station she had decided she wanted to call Legal Aid for advice because it was free. Her evidence was that after the constable spoke to her in the phone room she felt pressured that she could not call Legal Aid again and that she had to call a lawyer from the phone book, which she did not want to do. She did not tell the constable that she specifically wanted to receive legal advice from Legal Aid. She confirmed that she did receive advice from a lawyer she selected from the Yellow Pages. Further, the only reason she wanted to call Legal Aid was because it was free; she did not know the names of any lawyers at Legal Aid, nor the competency of their advice or skill level. She was convicted at trial, and that conviction was upheld on appeal and her appeal of that decision to the Alberta Court of Appeal was dismissed:

[T]he constable had provided the applicant a reasonable opportunity to contact counsel by giving her privacy, the telephone and various resources setting out information about available lawyers including the 1-800 number for Legal Aid. [T]he constable discharged both his informational and implementational duties as required by s 10(b) and therefore there was no Charter breach. R. v. Dufault, 2014 ABCA 271

COLLISION - DETERMINING WHO WAS DRIVING - "MYSTERIOUS" OTHER DRIVER DEFENCE REJECTED

First responders, and later police, arrived at vehicle roll over scene. Mr. Polley was found lying on the ground, some 60 feet away from the vehicle. Another man was seen getting out of the vehicle, bloodied and shaken, but able to stand. Mr. Polley was charged with impaired driving and other offences.  He was convicted at trial and his appeal was upheld.  He did not testify, but his "theory" was that a mysterious "third man" was driving the vehicle at the time of the crash.  That theory was rejected:

None of the witnesses who testified at trial ever said there were more than two occupants inside the van.  On this record it would have been sheer speculation and error on the part of the trial judge to have acquitted Mr. Polley on the basis that some mysterious, unidentified and unaccounted for “third man” was at the wheel when the van left the highway. R. v. Polley, 2014 NSCA 71 

SECTION 10(B) - RIGHT TO COUNSEL IN A HOSPITAL SETTING - SUPREME COURT OF CANADA - R. V. TAYLOR

Mr. Taylor was convicted at trial of three counts of impaired driving causing bodily harm.  His appeal to the Alberta Court of Appeal was allowed and acquittals were entered (see October 19, 2013 blog entry).  The Supreme Court of Canada has upheld those acquittals:

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. R. v. Taylor, 2014 SCC 50

SECTION 10(B) - RIGHT TO COUNSEL WHEN THE SUSPECT VEHICLE IS PARKED AND SOMEONE OTHER THAN THE POLICE OFFICER SAW THE VEHICLE BEING DRIVEN

A patrol officer was dispatched to a report of a vehicle being driven "all over the road". Within about ten minutes the officer located the vehicle in a parking lot.  Mr. Ackerman had gone to report for work, but came out of the building to speak with the officer as a result of a message the officer had sent via another worker. In response to questions by the officer, Mr. Ackerman identified his vehicle and told the officer that he had parked the car there. The officer noted an odour of alcohol on Mr. Ackerman’s breath and that his speech was slurred.  She told Mr. Ackerman that she was investigating a report of an impaired driver and that his vehicle was the one in question.  She asked Mr. Ackerman to accompany her to the police vehicle where the officer made an ASD demand. A "fail" was obtained and it was only at that time that Mr. Ackerman was advised of his rights to counsel.  The trial judge concluded that Mr. Ackerman's right to counsel had not been infringed and the Newfoundland and Labrador Court of Appeal upheld the conviction:

The fact that the erratic driving, together with information to identify the vehicle, was provided by a concerned citizen has no effect on the analysis.  It is clearly within the authority of the police to investigate potential offences reported by members of the public. Mr. Ackerman’s right to counsel under section 10 (b) of the Charter was infringed when he was initially detained.  However, that infringement was justified under section 1 of the Charter given the nature of the offence, the circumstances surrounding the police officer’s investigation, and the officer’s action in advising Mr. Ackerman of his right to counsel upon his arrest at the conclusion of the investigation phase. R. v. Ackerman, 2014 NLCA 26

SECTION 10(B) - RIGHT TO COUNSEL DOES NOT REQUIRE THAT POLICE MONITOR THE QUALITY OF LEGAL ADVICE

Mr. Edmonton was acquitted of driving while over 80. The trial judge in his terse reasons noted that when Mr. Edmonton was contacting counsel at the station he got a message that said "call me back in ten minutes” which was “not the officer’s fault, but that’s not an implementational – doesn’t satisfy the implementational aspect of the right to counsel”. The Crown was unsuccessful at the first appeal and the appeal judge also speculated that perhaps Mr. Edmonton spoke to a law student or some other inadequate advisor. The Crown's appeal to the Alberta Court of Appeal was allowed and a new trial was ordered. In doing so, the Court quoted a passage from the Supreme Court of Canada case of R. v. Willier: 

While s. 10(b) requires the police to afford a detainee a reasonable opportunity to contact counsel and to facilitate that contact, it does not require them to monitor the quality of the advice once contact is made. The solicitor-client relationship is one of confidence, premised upon privileged communication. Respect for the integrity of this relationship makes it untenable for the police to be responsible, as arbiters, for monitoring the quality of legal advice received by a detainee. To impose such a duty on the police would be incompatible with the privileged nature of the relationship. The police cannot be required to mandate a particular qualitative standard of advice, nor are they entitled to inquire into the content of the advice provided. Further, even if such a duty were warranted, the applicable standard of adequacy is unclear. R. v. Edmonton, 2014 ABCA 186