Les limites du droit à l'avocat de son choix à l'étape de l'audition

R. v. McCallen, 1999 CanLII 3685 (ON CA)

Lien vers la décision

Section 10(b) of the Canadian Charter of Rights and Freedoms includes not only the right to retain counsel but the right to retain the counsel of the accused's choice and the right to be represented by that counsel throughout the proceedings. The right to counsel of choice is not absolute. Counsel must be competent, willing to accept the retainer, available with a reasonable time and free from any conflict of interest. That said, absent compelling reasons, the government and the courts should not be involved in decisions about which counsel clients may choose to act on their behalf.

The decision to fix a date for trial is discretionary. When choosing a trial date the court must act judicially and balance a number of factors, including the availability of an accused's counsel of choice within a reasonable period of time. The trial judge in this case exercised his discretion unreasonably in the circumstances in simply fixing a trial date and not attempting to approach the scheduling issue in a co-operative manner so that the accused could be given a reasonable opportunity to have K represent him. The trial judge was apparently motivated by a rigid adherence to what he later referred to as a 90-day rule, i.e., a trial must be heard within 90 days of the first appearance in the Ontario Court (General Division). No such rule exists. It was possible that the trial judge was rigidly applying a 90-day guideline.

It is well established that s. 10(b) includes not only the right to retain counsel but the right to retain the counsel of the accused's choice and the right to be represented by that counsel throughout the proceedings.

In R. v. Speid 1983 CanLII 1704 (ON CA), (1983), 43 O.R. (2d) 596, 8 C.C.C. (3d) 18 (C.A.), Dubin 

J.A. described this as a fundamental right. At p. 598 O.R., p. 20 C.C.C., he said:

The right of an accused to retain counsel of his choice has long been recognized at common law as a fundamental right. It has been carried forth as a singular feature of the Legal Aid Plan in this province and has been inferentially entrenched in the Charter of Rights which guarantees everyone upon arrest or detention the right to retain and instruct counsel without delay. However, although it is a fundamental right and one to be zealously protected by the Court, it is not an absolute right and is subject to reasonable limitations.

There are sound reasons why this right was considered to be a fundamental component of the criminal justice system well before the enactment of the Charter and why it was recognized as a right deserving of constitutional protection in the Charter. The solicitor-client relationship is anchored on the premise that clients should be able to have complete trust and confidence in the counsel who represent their interests. Clients must feel free to disclose the most personal, intimate and sometimes damaging information to their counsel, secure in the understanding that the information will be treated in confidence and will be used or not used, within the boundaries of counsels' ethical constraints, in the clients' best interests. The law recognizes the uniqueness of this confidential relationship by providing special protection from compelled disclosure of information that is exchanged between clients and their counsel.

In addition, the relationship of counsel and client requires clients, typically untrained in the law and lacking the skills of advocates, to entrust the management and conduct of their cases to the counsel who act on their behalf. There should be no room for doubt about counsel's loyalty and dedication to the client's case. It is human nature that the trust and confidence that are essential for the relationship to be effective will be promoted and more readily realized if clients have not only the right to retain counsel but to retain counsel of their choice

The law is clear that the decision to fix a date for trial is discretionary and that in choosing a date the court must act judicially and balance a number of factors including the availability of an accused's counsel of choice within a reasonable period of time. Many of the same factors come into play in decisions whether to adjourn a trial date in order to permit an accused's counsel of choice to be available. The emphasis is on the reasonableness of the delay involved in accommodating the accused's choice; if the counsel of choice is not available within a reasonable time, then the rights of the accused must give way to other considerations and the accused will be required, if he or she chooses to be represented, to retain another counsel who is available within a reasonable period of time: see R. v. Lai, [1991] O.J. No. 725 (Gen. Div.); R. v. Barette, 1976 CanLII 180 (SCC), [1977] 2 S.C.R. 121, 29 C.C.C. (2d) 189 and R. v. Smith reflex, (1989), 52 C.C.C. (3d) 90, 35 O.A.C. 301.

In determining what is a reasonable period of time, the court will balance many factors including the reason counsel is not available sooner, the previous involvement of the particular counsel in the case, the public interest in having criminal cases disposed of in an expeditious manner, the age and history of the case, the availability of judicial resources and the best use of courtroom facilities, the availability of the complainant and witnesses, the availability and use of Crown counsel and law enforcement officers and the potential impact of the scheduling decisions on the rights of an accused under s. 11(b) of the Charter guaranteeing a trial within a reasonable period of time: see Smith, supra, at p. 93; Lai, supra.

There is no formula that can be rigidly applied in balancing these different factors and what is reasonable in one case may not be reasonable in another. Rigid rules defeat the very nature of the discretionary decision that is required. However, guidelines are helpful because they provide a framework within which decisions can be made and bring a measure of predictability to scheduling decisions that will assist the various participants in the process. It is the trial courts that are in the best position to assess and balance the circumstances and resources that are available in a particular region and to develop the guidelines that make the most sense for that region. Guidelines should be used as such and should not be applied in an arbitrary or inflexible fashion, particularly when a trial date is being set that will deny an accused person counsel of choice: see R. v. Shute reflex, (1982), 66 C.C.C. (2d) 354, 51 N.S.R. (2d) 83 (C.A.).