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THE RIGHT TO CHOOSE

The Right to Choose – Counsel of Choice and Recent Developments pursuant to s. 10(b) of the Charter of Rights and Freedoms By Michelle Johal

Background- Appellate authorities and Counsel of Choice

 Appellate authorities establish that an accused in custody has the right to speak to a lawyer that he or she chooses and the police are obliged to make reasonable efforts to assist him or her to contact counsel of choice.  What efforts are reasonable is highly fact specific and Ontario appellate cases suggest that often times good-faith perfunctory efforts by police are viewed as adequate to fulfill their constitutional obligations.

The police do not have to “hold off” indefinitely for a detainee to speak to whatever lawyer the detainee wishes.  The availability of duty counsel is, since Prosper[1], an important circumstance courts must consider in weighing what efforts police should make in the middle of the night where there is some need for dispatch to take breath samples and for how long they must “hold off” in taking breath samples.

A distillation of the appellate authorities can be found at: R. v. Willier[2], especially paras 33-4; R. v. Kumarasamy[3], and R. v. Blackett[4], especially at paras. 20-25.

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