R. v. Menard, 2010 BCSC 1416
[43] Mr. Gustafson submits that Mr. Menard’s right to counsel was infringed because the police would not initially permit him to call his wife for the purpose of enlisting her help in retaining a lawyer. He submits that this resulted in his not being permitted to retain counsel of his choice and that this was an infringement of his rights under s. 10(b) of the Charter.
[44] As discussed in Ross and other cases, upon arrest or detention, a detainee has a right to contact counsel of his choice subject to the proviso that he must be diligent and cannot insist on contacting a particular lawyer if that lawyer is not available in a reasonable amount of time. If his chosen lawyer is not available in a reasonable amount of time, then he is expected to exercise his right to counsel by calling another lawyer.
[45] Section 10(b) of the Charter is specific. It provides a right to access counsel, not a generalized right to speak to someone who is not a lawyer; R. v. Adams (1989), 1989 CanLII 7161 (ON CA), 49 C.C.C. (3d) 100, (Ont. C.A.); R. v. Van Den Meerssche (1989), 1989 CanLII 7133 (BC CA), 53 C.C.C. (3d) 449, (B.C.C.A.). This is in contrast, for example, to the Youth Criminal Justice Act, S.C. 2002, c. 1, which provides in s. 146(2)(c)(ii) that a young person has a right to consult with an appropriate adult before making a statement to the police.
[46] There is an exception, however. Where a detainee explains to the police that he needs to speak to a third party for the purpose of helping him to retain counsel of his choice, then the denial of that opportunity may, depending on the circumstances of each case, constitute a denial of his s. 10(b) Charter rights: R. v. Tremblay, 1987 CanLII 28 (SCC), [1987] 2 S.C.R. 435; R. v. Kiloh, 2003 BCSC 209; R. v. Zhang, 2004 BCSC 826; R. v. Engel, [1995] B.C.J. No. 1041, (S.C.); R. v. Oester (1989), 17 M.V.R. (2d) 46, (Alta. Q.B.); R. v. McNeilly (1988), 10 M.V.R. (2d) 142, (Y.T.S.C.).
[47] The particular circumstances of each case matter because the request to contact a third party for assistance in retaining counsel must be a reasonable request and the request may be unreasonable for any number of reasons. First, there may be valid concerns that permitting the detainee to speak to a non-lawyer might compromise the investigation. There may be fears, for example, that the third party might be an accomplice or that the third party might destroy evidence or intimidate witnesses. These are concerns that do not arise in the case of a detainee contacting counsel directly because lawyers are under a professional obligation not to do such things and are subject to professional discipline if they do. There may well be other reasons why a request by a detainee to contact a third party would be unreasonable, for example, the length of time that would be required in order to secure that person’s help.
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