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, 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.
Introduction – A developing new trend in Ontario regarding Counsel of Choice
The clearly developing trend in the Ontario Court of Justice appears to be toward requiring more from the police in both their informational and implementation duties as it relates to the issue of counsel of choice. Perfunctory efforts (even good faith ones) on the part of police have been criticised in recent Ontario decisions and the cases discussed below indicate increasing judicial dissatisfaction with the current practice of law enforcement officials across the province.
A good place to start this discussion is to examine the language set out in the warning that police read to persons under arrest or detention.
- 10(b) of the Charter provides detainees or individuals under arrest who are in police custody the right to choose the lawyer to whom they wish to speak for advice. This is set out in the standard “Brydges” warning that the police read to these persons. It says, in part,
It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish….
Notwithstanding this language used in standard police notebooks across the province the reality is that in Ontario these detainees are not generally afforded the right to “telephone” a lawyer at all. The police services control the use of the telephone and any telephone directories.
The default position is more often than not that the police use the option that is most convenient for them – which is putting detainees in touch with duty counsel. The question is whether this constitutes sufficient compliance with the underlying policy behind the standard Brydges warning.
The Alberta Model
In stark contrast is the model used in Alberta.
In R. v. Wolbeck, the Alberta Court of Appeal reaffirmed compliance with s. 10(b) requires that the police offer detainees the use of a telephone and current versions of telephone books.
The standard s. 10(b) Charter warning read by police in Alberta states:
You have the right to retain and instruct your lawyer without delay. This means that before we proceed with our investigation you may call any lawyer you wish or a lawyer from a free legal advice service immediately. If you want to call a lawyer from a free legal advice service, we will provide you with a telephone and you can call a toll free number for immediate legal advice. If you wish to contact any other lawyer, a telephone and telephone books will be provided to you. If you are charged with an offence you may apply to Legal Aid for assistance. (Emphasis added.)
In an increasing number of decisions from the Ontario Court of Justice trial judges have found breaches of s. 10(b) and excluded the results of breath tests under s. 24(2) of the Charter, where the police did not make adequate efforts to facilitate contact with counsel of choice and “funnelled” the detainees towards duty counsel. In fact, these trial judges were very critical of the police for their practice in not allowing the defendants to use a telephone to call counsel themselves or not providing defendants with access to resources to find and choose a lawyer with whom to consult.
Here are the citations, facts, ruling and commentary on the relevant cases:
Mr. Ali was sleeping in the driver’s seat of his car when his car drifted onto the curb and hit a metal hydro box. A concerned neighbour contacted the police who then attended on scene and found Mr. Ali still asleep at the wheel.
Police woke Mr. Ali and ultimately formed grounds to believe that his ability to drive was impaired by alcohol. Mr. Ali was arrested and transported to the police station to comply with a breath sample demand.
When asked upon arrest if he wished to speak with a lawyer, Mr. Ali said, “Yes”. When asked if he had a lawyer in mind, Mr. Ali told police that he had a lawyer and that the lawyer’s phone number was in his cell phone. However, once Mr. Ali had been transported to the police station, he was never offered the use of a telephone to dial the number for his lawyer that was stored in his cell phone. Instead, the police retrieved the lawyer’s number from Mr. Ali’s cell phone and placed the call for him.
Based on the evidence heard at trial, Justice Burstein found that the police officer did not call the number that was stored in Mr. Ali’s phone. He found that the police officer mistakenly switched the last two digits of the lawyer’s telephone number when it was recorded in her notebook and called the wrong phone number.
To quote Burstein J., at para. 64:
In the circumstances of this case, Cst McLeod’s efforts to facilitate contact with Mr. Ali’s chosen counsel were grossly inadequate. Her single call to the number she had transcribed from Mr. Ali’s cell phone, followed by an examination of the Ontario Lawyers’ Directory for that lawyer’s name, fell short of what Mr. Ali would reasonably have done to facilitate contact if he had been provided with the necessary tools (italics mine). Absent some evidence that all lawyers in Ontario must have their name and number listed in that directory, there is no basis to find that an examination of that book alone was enough to satisfy Cst. McLeod’s constitutional obligations. As other judges have found, a reasonable detainee would conduct an internet search to locate a lawyer’s contact information. Alternatively, a reasonable detainee would also contact a close friend or family member and ask them to conduct that search for them. In this case, Cst. McLeod did not undertake any additional steps to search for Mr. Heath’s contact information nor did she offer Mr. Ali the option of doing so himself. I find that Cst. McLeod’s efforts to facilitate Mr. Ali’s contact with counsel of his choice were constitutionally unreasonable and, therefore, violated his s. 10(b) right to consult with counsel of choice.
Burstein J. held that the fact that Mr. Ali spoke to duty counsel subsequently did not relieve police of their obligations. He held that Mr. Ali never chose to speak with duty counsel and that the police presented Mr. Ali with no other choice in terms of him consulting with counsel. Burstein J. found at para 65, that “for Mr. Ali, it was duty counsel or nothing.” He went on to reject any suggestion that by agreeing to speak with duty counsel, Mr. Ali somehow waived his s. 10(b) right to consult with counsel of choice. Accordingly, he found a breach of s. 10(b).
In his 24(2) analysis, Burstein J. found that the s. 10(b) breach was “serious” having regard to the first “Grant” factor. He held that not only were the police grossly negligent in facilitating contact with Mr. Ali’s counsel of choice but the breach was seriously aggravated by the institutional practice adopted by the Durham Regional Police Service; namely, the blanket denial of telephone access to detainees who have expressed a desire to contact counsel.
Burstein J. said the second “Grant” factor also weighed in favour of exclusion. When engaging in the final balancing analysis, he concluded, at para. 83, “…the police must understand the importance of their constitutional obligations to facilitate contact with counsel of choice. For their part, courts must promote compliance with, not defiance of, the 30-year old Charter obligation to provide detainees with access to a telephone”. He excluded the evidence and acquitted Mr. Ali.
R v Manuel
Mr. Manuel was pulled over one afternoon as he was believed to be committing a violation of the Highway Traffic Act by using a cell phone while driving. After smelling an odour of alcohol from his breath a demand was made for an approved screening device sample by the police. The result was a fail. He was placed under arrest and read his rights to counsel.
After reading Mr. Manuel the standardized s. 10(b) warning from the back of her police notebook, the police officer asked Mr. Manuel if he wished to call a lawyer. He responded, “Yes”. The police officer did not end the s. 10(b) discussion there and simply transport Mr. Manuel to the police station where his s. 10(b) rights could be facilitated. Instead, the police officer went on to ask Mr. Manuel to immediately make a choice about how he wanted to later exercise his s. 10(b) rights.
The arresting officer asked Mr. Manuel two further questions (as she “always” does in the field): (1) did he have “a lawyer in mind” (to which he responded “no”) and (2) would you like to contact duty counsel (to which he responded “yes”).
The defence argued that the police “channeled” Mr. Manuel towards duty counsel rather than facilitating his ability to choose between consulting private counsel or duty counsel.
In addressing these facts, Justice Burstein found that the unconstitutional “channeling” of Mr. Manuel to duty counsel occurred primarily as a result of the misinformation the police provided to Mr. Manuel about his s. 10(b) rights. He found that the police did not fully comply with their implementational obligations: it was only because of the earlier informational failings that the implementational shortcomings contributed to Mr. Manuel’s mistaken belief that he had no choice but to consult duty counsel.
In this case, Burstein J. accepted Mr. Manuel’s evidence that what he was told by the police led him to believe that his only choice was to speak with duty counsel. He also noted that at no point did the arresting officer ever inform Mr. Manuel that a telephone and telephone book would be made available to him so that Mr. Manuel could find a lawyer to call.
Burstein J. further held that in Mr. Manuel’s situation he should have been provided with additional information that the s. 10(b) rights he had asserted include not just the right to call a lawyer but also the related right to a reasonable opportunity to choose the lawyer (emphasis added) with whom he wished to consult.
At para. 28, Burstein J. held
In my view, informing a detainee who wants to call a lawyer of the s. 10(b) right to access a telephone and a telephone book is the type of “additional information” which Prosper requires before the police may confront the detainee with a choice about how to exercise the s. 10(b) rights being asserted.
In his 24(2) analysis, and most significantly in my view, at para. 45 Burstein J. distinguishes the recent Ontario Court of Appeal case in R. v. Jennings and seemed to suggest that it has no application to s. 10(b) of the Charter.
He further held the apparent systemic nature of the breach only aggravated the seriousness of the violation. He noted not only did the arresting officer have a mistaken understanding of her constitutional obligations but the booking sergeant in this case appeared to share that same unconstitutionally narrow view of the s. 10(b) right. Ultimately, he excluded the breath samples
Mr. Middleton was pulled over late one night as he was leaving a licenced establishment with a friend. After he failed an approved screening device test, the police advised him of his right to counsel.
His friend’s father was a senior corporate counsel and provided Mr. Middleton with the name and telephone number of Alan Gold, a very prominent criminal lawyer. He had put the number in his contacts list on his cell phone in the unlikely event that he got into trouble and needed a criminal lawyer.
Mr. Middleton testified that he asked his friend for the phone he had left in his car in order to find Mr. Gold’s telephone number (but apparently told the officer only that he wanted to consult his contacts list). The officer testified that Mr. Middleton asked to speak with duty counsel but, in cross-examination, said that he did not recall if Mr. Middleton asked for the cell phone.
Justice Parry, who heard the trial, accepted the evidence of the defendant and rejected the evidence of the police officer where it was in conflict with that of Mr. Middleton. He found that the defendant asked for his phone twice and found that the officer, who as he put it at para. 18, “exercised complete control of the process” by which the defendant could exercise his right to counsel, ignored the request for the phone and told him he could call duty counsel at the police station (and in fact made the call to duty counsel for Mr. Middleton when they got to the police station).
To quote Parry J. at para. 51:
Having heard Mr. Middleton’s evidence and Constable MacLean’s evidence, I conclude that it is in this context that Mr. Middleton asked for his phone. If the officer was paying attention at all to his constitutional duty to provide access to counsel at the first reasonable opportunity, the request for a cell phone immediately after an assertion by the arrestee of his right to counsel ought to have spurred Constable MacLean into action. He had just told the accused he could call a lawyer. The accused responded by saying he wished to speak to a lawyer and by requesting his phone. Only a person blinded by bureaucratic indifference could fail to conclude the accused’s request for his phone was related to the subject matter at hand. What emerges from this evidence is a picture of an officer going through the motions of his duties, choosing the path of least resistance towards the completion of a mundane task in which he had little interest. In doing so, he ignored the request for a phone, paid no attention to the reason for that request, and defaulted to duty counsel because his arrestee had no record and did not currently have a lawyer – because no neophyte would.
Mr. Middleton did not realize that he had the right to speak to counsel of choice. Parry J. found, at para. 56, that his “acquiesence to duty counsel” was “natural and predictable” in the circumstances.
After speaking to duty counsel, Mr. Middleton made utterances to various officers that suggested that he did not understand the advice duty counsel gave to him.
Parry J. held that the utterances at the police station revealed that he did not understand duty counsel’s advice. “Put bluntly”, he wrote at para. 58, “Mr. Middleton was operating in a state of confusion, even after speaking to duty counsel”. This was probably apparent to the police because, after the last breath test, the arresting officer re-advised him of his right to counsel and asked if he wanted to speak to duty counsel again. The defendant accepted the offer and spoke with a different duty counsel.
Parry J. also found that the police presented the defendant with what he called, at para. 64, a “false dichotomy”: he could either call his lawyer or, if he did not “have” a lawyer speak to duty counsel. Mr. Middleton had, Parry J. held, “the right to search for and choose a lawyer” even if he did not “have a lawyer” (emphasis added).
Parry J. also found fault with the practice of the police of monopolizing the telephone and the means to find a lawyer other than duty counsel:
 …The police in this case controlled completely the means by which Mr. Middleton exercised his right to counsel. They separated the accused from his phone. They did not present him with a lawyers’ list, a phone book, access to the internet, or any means by which to search for and a find a lawyer of his choosing. They also did not advise him of his right to use any of these resources to choose a lawyer. In addition, they did not allow him to place the call himself. They simply allowed him to receive a call from someone they had called on his behalf. They acted as the exclusive conduit to legal advice, without providing the necessary information and tools to Mr. Middleton to empower him to assert his rights. Consequently, Mr. Middleton was steered toward duty counsel. This practice is constitutionally suspect. Unfortunately, a growing body of case law suggests it is not a practice that is unique to the Guelph Police Service…
He went on to say hold, at para. 65, that the “default to duty counsel” was made worse by ignoring the defendant’s utterances that revealed that he did not understand the legal advice that duty counsel had provided.
Parry J. also found that it did not matter that there was no evidence as to whether Mr. Gold (who was Mr. Middleton’s trial counsel) would have answered the phone had the police called on Mr. Middleton’s behalf or had Mr. Middleton called himself. “To my mind”, he wrote at para. 68, “it is unnecessary to answer that question”. The breach was “complete” when the defendant “was deprived of the opportunity to contact a counsel of his own choosing”.
Parry J. found that the s. 10(b) breach was “extremely serious” having regard to the first “Grant” factor. The police were indifferent to the assertions by the defendant that he wished to speak to counsel of his own choosing and steered him to duty counsel. They also repeatedly ignored Mr. Middleton’s utterances to the effect that he did not understand the advice that duty counsel gave to him. The second “Grant” factor also weighed in favour of exclusion. The breach was described at para. 80, as “substantial”, “significant” and “very grave”.
Parry J. also characterized the right to counsel as being “of paramount importance” at para. 80.
Ultimately, Parry J. excluded the evidence of the breath tests and acquitted Mr. Middleton.
- R v K 
K was found by police slumped behind the wheel of a car that was parked facing the wrong way in Toronto. There was music blasting from the car and the doors were locked. They could not rouse him – he appeared to be comatose – and, concerned about his well-being they broke a window and removed him from the car.
The arresting officer formed the opinion that he was impaired by alcohol and arrested him, then made a breath demand and advised him of his right to counsel. The defendant did not then wish to call a lawyer.
After the defendant was taken to the police station, he was “booked”. He at first declined an offer to speak to a lawyer during the booking. When asked by the Staff Sargent if he had a lawyer, he replied “Yes, Sharma”. The Staff Sargent said there were “too many” lawyers named “Sharma” and that he had to be more precise. The defendant said he needed his cell phone in order to locate his number. When asked if he would speak to duty counsel if he could not reach his lawyer, the defendant said, “Sure”.
The defendant could not find “Sharma” on his cell phone but was able to find a number for a lawyer named “Marty Shapiro” and asked to speak to him. One of the officers called him and left a message.
The officer then called duty counsel and left a message at 7:58 am, without trying to find the lawyer Sharma through a phone book, lawyers’ directory or the internet.
Duty counsel returned the call at 8:12 am and the defendant spoke to him. The call was over at 8:21 am and the officer escorted K at that time to the breath room for his breath tests. He did not wait at all for Marty Shapiro to call back before turning him over to the breath technician.
By the time that K entered the breath room, two hours had passed from the very last time he was in “care or control” of his vehicle. Thus, the Crown could not take advantage of the presumption of alcohol concentration after 8:21 am and there was no longer any urgency in taking the first breath test. The Crown would have to call a toxicologist to “read back” the test results or file a report from a toxicologist to that effect.
When in the breath room, K said that he wanted to speak to his lawyer. The breath technician warned him about being charged with refusing to comply with a breath demand but the defendant kept repeating that he wanted to speak to his lawyer – “someone who I trust”, as he put it. K expressed doubt as to whether the duty counsel was even a lawyer. He finally agreed to provide samples of his breath when he was told he would be charged with refusing to comply with the breath demand. He said, “You don’t give me any choice”. The first breath sample was provided at 8:40 am.
The officer left another voice mail at Marty Shapiro’s number between the two tests and also tried the extensions of two assistants in that office.
In cross-examination, the officer agreed that the police controlled to whom the defendant spoke and when. He also agreed that he did not try to find or contact Sharma. He agreed that the defendant was clearly unhappy with the advice he got from duty counsel and that he should have tried to reach another lawyer. He also said that he would now proceed differently in the future.
In his discussion of the applicable law, Green J. quoted at length and with approval from R. v. Ali, 2018 ONCJ 203, which was summarized above.
Quoting, at para. 29, from Ali, supra, Green J. held that whether police have adequately discharged their duty to facilitate contact with counsel of choice will be measured by “what a reasonable detainee likely would have done to contact counsel had police provided them with the tools for doing so”.
Green J. held that the police failed to honour the constitutionally protected right to counsel of choice which the defendant repeatedly asserted and re-asserted. The police “assumption and execution” of their “constitutional responsibilities” was, as Green J. put it at para. 30, “never more than cursory”. The arresting officer never turned his mind to finding any lawyer named “Sharma” and “channelled the defendant to duty counsel very soon after leaving a message at the office of Marty Shapiro”. The police, therefore, breached their implementation duties under s. 10(b).
Green J. decided to exclude the readings because the first two “Grant” factors weighed in favour of exclusion. The first factor rests, as he put it at para. 40, “somewhere between negligence and reckless (if not knowing) disregard or indifference” on the fault-line or spectrum of gravity. The police made only a perfunctory effort to facilitate contact with counsel of choice and they “effectively funnelled the defendant to duty counsel”.
The second factor also weighed in favour of exclusion. Green J. quoted from Middleton, supra, with approval: the right to counsel is, he agreed, “of paramount importance”.
Concerned with the long-term repute of the administration of justice, Green J. excluded the breath readings and acquitted the defendant of the “over 80 mgs” offence.
R v. Lima
Mr. Lima was pulled over at a traffic stop. Police smelled alcohol. He registered a fail on an approved screening device test following a lawful demand by Police.
He was placed in the rear of the police cruiser. There was a delay of some six minutes in reading him his rights to counsel by the arresting officer while he tended to other unrelated administrative tasks.
When he was finally read his rights to counsel he said he didn’t have his own lawyer. He was ultimately directed to duty counsel.
Mr. Lima was not offered a lawyer’s directory when he said he didn’t have his own lawyer. He did not have access to his own phone. He was not permitted to have access to the internet pursuant to a police policy.
The officer indicated in his evidence that if someone does not have a lawyer they are directed to duty counsel, as was Mr. Lima in this case. This was the case even though they had a lawyer’s directory at the station and he testified that he could have provided Mr. Lima with that book.
Counsel for Mr. Lima argued that using duty counsel as a default position was tantamount to removing all choice from the defendant. She also argued that it was really no different that referring the defendant to a particular lawyer. She was also critical of the police failure to read Mr. Lima his rights immediately upon arrest. She urged the court to find this was not in compliance with R. v. Suberu and the requirement that detainees be informed of their rights to counsel immediately upon arrest.
Her Honour Justice Nichols noted that Mr. Lima was not at all in control of the process by which he could access counsel, as in the Barrie police station defendants could not dial out or access the internet.
In addition, her Honour found the facts of Mr. Lima’s case to be analogous to another case provided by the defence, that is, R. v. Della-Vedova. She also observed that Mr. Lima did not know that he had any other choices or options available. He was young, overwhelmed and inexperienced in criminal matters.
Accordingly she found a breach of Mr. Lima’s s. 10(b) rights.
In her 24(2) analysis, she found that given there were two breaches of s. 10(b) the breach was serious and the court must distance itself from cavalier attitude of the police with regards to the rights of citizens.
The above-cited cases indicate judicial dissatisfaction with the police practice of denying defendants access to a telephone or the modern day tools required to effectively exercise their right to consult with counsel of choice.
The clearly developing trend is requiring much more of the police in discharging their constitutional obligations. Since police generally maintain control over the means of communication with counsel at the station they are duty bound to ensure that defendants are able to exercise their rights to counsel in a meaningful way.
Where a defendant expresses a desire to exercise their 10(b) rights, and they have a lawyer, the police must ensure that defendants are able to access that lawyer. It is expected that police take the same steps the defendant would have taken had they had access to certain tools at their disposal.
Furthermore, if a defendant DOES NOT have a lawyer the police CANNOT give them access to only one single option, i.e.: duty counsel just because it is the most convenient option.
A defendant should be informed that he or she has a right to make reasonable efforts (or that the police will make reasonable efforts on their behalf) to use other readily available tools, like phone books, lawyer’s lists, the Law Society database or even internet searches.
The above-noted decisions suggest that it may be the dawn of a new era in Ontario. It may signal the beginning of the end of funnelling to duty counsel as the only choice of counsel for detainees who do not have their own lawyer. Counsel for the defence should bear this in mind in those cases where section 10(b) of the Charter is at play and advance these arguments, where appropriate.
  3 S.C.R. 236
 2010 SCC 37 (CanLII)
  O.J. No. 303 (Ont. S.C.)
 2006 CanLII 25269 (Ont. S.C.)
  1 S.C.R. 190
 2010 ABCA 65 (CanLII)
 2018 ONCJ 203 (CanLII)
 2018 ONCJ 381 (CanLII)
 2018 ONCJ 387
 This is in stark contrast to R. v. Wilding (2007), 88 O.R. (3d) 680 (Ont. C.A.). In that case the Ontario Court of Appeal held, at para. 13, that because the record was “silent” as to whether “there was any reasonable likelihood” that the respondent could have contacted his counsel of choice the seriousness of the breach was considerably attenuated.
 2018 ONCJ 419 (CanLII)
 However, the defendant was convicted of the Impaired charge.
 unreported, reasons for judgement released 14 May 2018, Ont. C.J. (included in materials
 2009 SCC 33 (CanLII)
 2018 O.J. 1596
 The summaries of R. v. Middleton, supra and R. v. K, supra were in part adopted from case summaries written for “The Milligan Criminal Law Advisor”, an online net letter that is published monthly by Thomson Reuters. I am grateful for their permission to use these extracts here and to Jeffrey Milligan for providing them to me.