Funnelling Individuals to Duty Counsel – A Violation of the Right to Counsel Under s. 10(b)Andrew Captan
Individuals under s. 10(b) of the Charter of Rights and Freedoms have the right to retain and instruct counsel. What happens where a detainee advises police that they wish to speak to a private lawyer, but the police, without making sufficient effort, “funnel” the detainee to Duty Counsel (who are lawyers who work for Legal Aid Ontario)? A string of cases commencing in 2018 dealt with this issue, often finding there to be violations of individual righst under s. 10(b).
An accused has the right to counsel of their choice, and s. 10(b) entitles them to contact their chosen counsel prior to police questioning: R. v. Willier, 2010 SCC 37 (CanLII), at para. 35.
Where the police take on the responsibility of contacting counsel of choice on behalf of a detainee, it is up to the Courts to determine the adequacy of those efforts: R. v. Maciel, 2016 ONCJ 563. In the Maciel decision, Sribopoulos J. held that where the police assume this responsibility, there is an obligation for them to do so with reasonable diligence: supra, at para. 47. At paragraph 47, His Honour provided a list of steps that the police should be alive to when trying to obtain counsel’s contact information:
• Asking the detainee if they have a telephone number, or know anyone who might have the number, for the lawyer of choice;
• Providing the detainee with access to their cell phone, if there is reason to believe that the number is stored on the device;
• Conducting an Internet search;
• Using the Internet to search any available online directories, including the Law Society of Ontario’s Paralegal and Lawyer Directory; and
• Using any available paper-based directories.
Where the police fail to take the necessary steps to facilitate contact with private counsel, Courts have found that this “funnelling” to Duty Counsel violates the principles for which s. 10(b) stand.