The Right to Choose (the sequel)-Counsel of choice narrowed in scope in 2019 (and a novel decision on sentence)

Background-A new trend emerges in 2018

Appellate authorities establish that upon arrest a defendant has the right to speak to a lawyer that he or she chooses and police are obliged the make efforts to assist him or her with contacting counsel.[1] But what police efforts are adequate to fulfill their constitutional obligations?

Approximately one year ago, I observed a clearly developing trend at the Ontario Court of Justice appeared to be toward requiring more from the police in their implementation duties as it related to the issue of counsel of choice. Perfunctory efforts (even good-faith ones) on the part of police were the subject of much criticism in 2018 and there was increasing judicial dissatisfaction with the practice of law enforcement officials in Ontario.[2]

Last year in a number of decisions from the Ontario Court of Justice trial judges 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 when they “funnelled” the detainees towards duty counsel.[3]  It was also observed in last year’s paper that “trial judges were very critical of the police for their practice in not allowing the defendants to use a telephone to call counsel themselves (like in Alberta) or not providing defendants with access to other resources to find a lawyer with whom to consult.”[4]

It was also observed by a number of judges at the Ontario Court that police in Ontario do not actually do what they say in their Charter warning. They do not, in fact, permit the defendant to “make the call” to any lawyer they wish. Instead, they act as agent for the defendant and “make the call” to counsel. They also control the exclusive use of the telephone.

Last year Burstein J. in Ali summed up the criticism:

Rather than allowing the detainee to “telephone any lawyer [they] wish”, it seems that police agencies in Ontario merely afford the detainee the right to receive a telephone call from someone who the police have called on the detainee’s behalf. The practice currently in place in Ontario seems constitutionally suspect. [Emphasis added.][5]

Burstein J also observed in Ali that the police efforts to facilitate contact with his chosen counsel were inadequate and that their efforts, “fell short of what Mr. Ali would reasonably have done to facilitate contact if he had been provided with the necessary tools.”[6] Whether or not the police needed to provide secondary materials or the “necessary tools” to detainees in these circumstances and in general was a live issue contemplated in a number of cases.

2019: The pendulum swings the other way

This year the pendulum has clearly swung the other way.  The summary conviction appeal in R. v. Ruscica[7] appears to have ended much of the debate and suggests that section 10(b) Charter warning in Ontario is constitutionally compliant.

Ruscica specifically considered whether detained persons should be advised about the availability of resources to locate and identify legal counsel other than duty counsel if desired, as suggested by Burstein, J in Ali. The appellate court declined to agree with this proposition.  They held the obligation on the policy must be based on a request from the detainee [emphasis added] which reasonably requires the police to assist in this regard.[8]

The Applicant appealed to the Court of Appeal. In denying leave to appeal to the Court of Appeal van Rensburg J.A in a written endorsement indicated that “while the s. 10(b) issue is framed to raise an issue of importance to the administration of justice, it is not an arguable issue on the evidentiary record of the case, where the applicant was told and understood that he could contact any lawyer he wished and where he accepted the offer from duty counsel after confirming he did not have a specific lawyer and where there was no evidence of confusion about his rights or advice to contact private counsel.”[9]

An examination of the facts of the Ruscica case is helpful to provide context regarding the analysis at the appellate level. The relevant facts are as follows.

After receiving a fail reading on the approved screening device, PC Oliva placed the applicant under arrest for Over 80. He read the applicant his rights to counsel from the back of his notebook. This warning included the standard s.10(b) language in Ontario that, “you have the right to telephone any lawyer you wish.” When he asked the applicant if he understood his right’s he confirmed that he did. When he asked the applicant if he wanted to call a lawyer now, the applicant just asked if he could go home. He subsequently indicated that he did want to call a lawyer. PC Oliva asked the applicant if he had a specific lawyer or wanted to call duty counsel. The applicant indicated he did not have a specific lawyer and that he wanted to call duty counsel.

At trial, counsel to the applicant (Mr. Gold) asked the arresting officer if detainees were generally afforded additional materials at the station to search for a private lawyer. Constable Oliva conceded they were not. Then counsel suggested to him that defendants who don’t have private counsel are effectively “steered to duty counsel.” Constable Oliva essentially adopted the counsel’s suggestion.

For clarity, Constable Oliva’s evidence at trial was as follows:

Question by Mr. Gold: …okay? Have you ever seen a sergeant say to an accused, “Well, you don’t know any lawyers, but you have the right to — to speak to a private lawyer? We’ll put you in a room with a phonebook or a computer. You can look for — through the private bar, maybe Law Society.” Did you ever see a sergeant give an accused, in this situation, the option of their personally searching the private bar for a lawyer when they didn’t have a private lawyer?

Answer: No, my experience is that the officer in charge normally asks if they have a lawyer. And if the response is “no” then they offer them, duty counsel.

Question: They’re effectively steered to duty counsel?

Answer: If they don’t have a specific lawyer…

Question: Yeah.

Answer: …that they can name.

Question: Unless they can name a lawyer from the get-go, they’re steered to duty counsel?

Answer: Correct. [emphasis added by author]

Counsel for the Crown, Mr. De Chellis[10] argued there was no s. 10(b) breach of those facts. The trial judge, Justice Henschel agreed with the Crown.

Further, she observed that “this is not a case where the applicant identified or requested to speak to a specific lawyer. He did not have a “counsel of choice.” Nonetheless, the applicant submits that even though the applicant did not know or request a specific lawyer, and agreed to speak with duty counsel, that the police breached his right to counsel because they directed or “steered” him to duty counsel.”[11]

In paragraph 54 of her decision, she found, “I disagree. The police did not breach the applicant’s right to counsel of choice. The police did not violate his rights by directing him to duty counsel when he did not or could not identify a specific lawyer.”

On appeal to the Superior Court of Justice McKelvey (“SCAJ”) concluded that there was no basis to interfere with the trial judge’s finding that there was no section 10(b) breach on those facts.

Notwithstanding the evidence (reproduced above) at trial, the SCAJ concluded that “the officer did not “steer” the appellant to duty counsel by simply choosing duty counsel without any consultation with the appellant.”[12] It is significant however that the appellate court observed that had the appellant responded “no” to the follow-up question of whether he wanted to speak to duty counsel, the officer would have been placed in the position of having to clarify the appellant’s intentions about counsel and provide further assistance to the appellant to locate counsel he was satisfied with.[13]

Justice McKelvey also observed that the appellant gave no indication he was not satisfied with the opportunity to contact duty counsel, and even more significantly, the appellant stated he was satisfied with duty counsel’s advice when the call ended when asked by the arresting officer.[14]

But before you shred my s.10(b) paper from last year’s conference and give up on the “steering” argument altogether, there still exists some potential to see police obligations in this area expand further in Ontario with a different evidentiary record, [emphasis added] which should include viva voce evidence from the applicant.[15]

Further, Justice McKelvey noted that the “circumstances matter”. He specifically noted that “there may well be cases based on what an accused says to the police which makes it mandatory for the police to offer resources such as a phone book to assist someone who is looking for private counsel.”[16]

In fact, he agreed with Justice Burstein in Ali when he states, “I fully agree with the proposition that when the police choose to maintain control over the tools necessary for a detainee to exercise their s. 10(b) rights, the police thereby assume constitutional responsibility for using those tools in the same manner as any reasonable detainee facing an urgent need to contact counsel.”[17]


In my view, there is now appellate authority that observes if police efforts to facilitate contact with chosen counsel are inadequate, and that their efforts fall short of what the defendant would reasonably have done to facilitate contact if they had been provided with the necessary tools a breach of s.10(b) can still be made out.

While the implementational duties to assist a detainee may have not extended as far as hoped in last year’s paper on the topic, there is still room for another potential pendulum swing with albeit different circumstances.

A novel approach to sentencing an Impaired offender: R. v. Luke

In July of this year, Justice Burstein released his decision, R. v. Luke.[18] Luke is promising young Indigenous woman from the Mississauga’s of Scugog Island First Nation with no prior criminal record.

The defendant was charged with impaired driving (by alcohol). She plead guilty. Ms. Luke challenged the constitutionality of s. 255 as it applied to the sentencing determination in her case. She argued that preclusion of a discharge under s. 730 violated her rights under ss.12 and/or 15 of the Charter and that the punishment would be “grossly disproportionate.”[19]

The Crown argued that s. 255 did not violate s. 12 or s. 15 of the Charter.  They argued that the imposition of a fine and criminal record can never amount to grossly disproportionate punishment for the offence of impaired driving considering the seriousness of that offence.[20]

In his analysis Burstein J. observed that a sentence that would lead the defendant to have criminal record would be unacceptable. He observed that “saddling” a young Indigenous woman with a criminal record in her unique circumstances “would strike at the heart of Gladue.”[21] He also observed that the defendant had aspirations to become a youth counsellor in her community and that this goal would likely be thwarted by a criminal conviction.

He further noted that “impairing Ms. Luke’s ability to develop a career as a youth counsellor would run counter to the National Inquiry into the Missing and Murdered Indigenous Women and Girls call for the hiring of more Indigenous women to staff local child and family service agencies so as to ensure that those critical services are provided by those better able to understand the discriminatory history of those services.”[22]

The Court was certainly live to the serious consequences that flowed from a permanent criminal conviction which could include an adverse impact on employment, travel and in some cases securing accommodation.[23] He held that a conditional discharge, which would deem her not as being convicted, would be fit and just in her personal circumstances.

The minimum fine, by preventing such a discharge, is as such grossly disproportionate, rendering it cruel and unusual, and contrary to section 12 of the Charter.[24]

It is noteworthy that Justice Burstein struck down the mandatory minimum sentence for impaired driving focusing on not only the defendant’s Indigenous background but her own personal circumstances which included a history of trauma. He was not satisfied that the theoretical potential for her to apply for a record suspension alleviated the prejudice flowing from the imposition of a criminal record.

In his ruling, his Honour recognized impaired driving was a serious offence. But the personal circumstances of this offender, in this case, were certainly very atypical. She was not only Aboriginal but the victim of abuse and trauma herself. She had made significant steps towards rehabilitation by taking proactive steps to get help in her community. She had also taken the most significant step towards accountability-by entering a plea of guilt.


It is noteworthy that in this decision the offence date pre-dated the coming into force of Bill C-46. In his decision, his Honour observed that some provinces have conditional discharges available for impaired driving offences while others don’t. Bill C-46 removed conditional discharges from the Criminal Code across the board. It remains to be seen whether this approach will be adopted by other jurists or appellate courts in a post-C-46 era.

[1] A distillation of the appellate authorities can be found at R v. Willier 2010 SCC 37 (CanLII), at paragraphs 33-34.

[2] See “The Right to Choose-Counsel of Choice and Recent Developments pursuant to s. 10(b) of the Charter of Rights and Freedoms”, November 6th, 2018 by Michelle Johal.

[3] R v. Ali 2018 ONCJ 203 (CanLII), R. v Manuel 2018 ONCJ 381 (CanLII), R. v. Middleton 2018 ONCJ 387 (CanLII), R v. Kuviarzin 2018 ONCJ 419 (CanLII)

[4] Ibid, at page 2.

[5] Ibid, at para 51.

[6] Ibid, at para 64.

[7] 2019 ONSC 2442 (leave to appeal denied)

[8] Ibid, at para 43.

[9] Application record endorsement, June 11th, 2019

[10] I feel obliged to declare a potential conflict of interest here given my relationship to Mr. De Chellis.

[11] R v. Ruscica, 2017 ONCJ 864 (CanLII), paragraph 53.

[12] R v. Ruscica, 2019 ONSC 2442 (CanLII), paragraph 37.

[13] Ibid, paragraph 37.

[14] Ibid, para 37.

[15] In Ruscica the parties agreed to hear the Crown’s case and evidence on the Charter applications in a blended hearing (as is normally the case). The Crown called PC John Oliva, the investigating officer and PC Lam, the breath technician. It is noteworthy that the defence did not call any additional evidence on the Charter applications (including the applicant)

[16] Ibid, paragraph 38.

[17] Ibid, paragraph 38.

[18] 2019 ONCJ 514 (CanLII)

[19] She argued, in the alternative, that s. 255(5) discriminates against the Mississaugas of Scugog Island First Nation because other First Nations located in provinces other than Ontario are eligible for conditional discharges pursuant to s. 255(5).  The thrust of the argument was that by allowing for provincial governments to determine whether conditional discharges will be available to one First Nation versus another, the effect of s. 255(5) is to discriminate against those First Nations who reside in provinces that have decided against opting into the application of s. 255(5) of the Code.

[20] Ibid, paragraph 4.

[21] Ibid, paragraph 38.

[22] Ibid, paragraph 40.

[23] Ibid, paragraph 24.

[24] Ibid, paragraphs 47-49.



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