[80] While the duty to inform a detainee of the right to counsel arises “immediately” upon arrest or detention, the duty to facilitate access to a lawyer arises immediately upon the detainee’s request to speak to a lawyer. In R. v. Taylor, Abella J., writing for the court, explained at para. 24:
The arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonable available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances …Whether a delay in facilitating access to counsel is reasonable is a factual inquiry.
[81] Assessments of whether it was reasonable to delay access to counsel for a detainee are fact-specific and require consideration of the context. In R. v. Wu, 2017 ONSC 1003, Di Luca J. provided, at para. 78, a helpful summary of the guiding principles that aid in this assessment:
78 The assessment of whether a delay or suspension of the right to counsel is justified involves a fact specific contextual determination. The case law on this issue reveals some general guiding principles that provide a framework for this assessment:
a. The suspension of the right to counsel is an exceptional step that should only be undertaken in cases where urgent and dangerous circumstances arise or where there are concerns for officer or public safety. Effectively, the right to counsel should not be suspended unless exigent circumstances exist: see R. v. Bartle, at p. 19; R. v. Suberu, at para. 42; and R. v. Learning, 2010 ONSC 3816 (Ont. S.C.J.) at para. 75.
b. There is no closed list of scenarios where a delay or suspension of the right to counsel is justified. However, the following general categories emerge from the case law:
i. Cases where there are safety concerns for the police, see R. v. Grant, 2015 ONSC 1646 (Ont. S.C.J.) at para. 107, R. v. J. (J.), 2010 ONSC 735 (Ont. S.C.J.) at paras 276-8, and R. v. Learning, at para. 75;
ii. Cases where there are safety concerns for the public, see R. v. Thind, 2011 ONSC 2054 (Ont. S.C.J.) at paras. 113-15 and 122;
iii. Cases where there safety concerns for the accused, see R. v. Strehl [2006 CarswellOnt 7495 (Ont. S.C.J.)], 2006 CanLII 39572 at para. 4;
iv. Cases where there are medical concerns, see R. v. Willier, 2010 SCC 37 (S.C.C.) at para. 8 and R. v. Taylor, 2014 SCC 50(S.C.C.) at para. 31;
v. Cases where there is a risk of destruction of evidence and/or an impact on an ongoing investigation, see R. v. Rover, 2016 ONSC 4795 (Ont. S.C.J.) at para. 66 and 70, R. v. Kiloh, 2003 BCSC 209 (B.C. S.C.) at para. 15 and 38, and R. v. Salmon, 2012 ONSC 1553 (Ont. S.C.J.) at para. 92; and,
vi. Cases where practical considerations such as lack of privacy, the need for an interpreter or an arrest at a location that has no telephone access justify some period of delay, see R. v. J. (K.W.), 2012 NWTCA 3 (N.W.T. C.A.) at para. 29-30, and R. v. Khairi, 2012 ONSC 5549 (Ont. S.C.J.).
c. The right to counsel cannot be suspended simply on the basis that a search warrant is pending, see R. v. Soto, 2010 ONSC 1734 (Ont. S.C.J.) at para. 69, and R. v. Liew, 2012 ONSC 1826 (Ont. S.C.J.) at para.70.
d. A general or bald assertion of "officer safety" or "destruction of evidence" concerns will not justify a suspension of the right to counsel, see R. v. Patterson, 2006 BCCA 24 (B.C. C.A.) at para 41-42, and R. v. Proulx, 2016 ONCJ 352 (Ont. C.J.) at para.47.
e. Police officers considering whether circumstances justify suspending the right to counsel must conduct a case by case assessment aided by their training and experience. A policy or practice routinely or categorically permitting the suspension of the right to counsel in certain types of investigations is inappropriate.
f. The suspension of the right must be only for so long as is reasonably necessary, see: R. v. Mazza, 2016 ONSC 5581 (Ont. S.C.J.), at para. 83. In this regard, the police should be vigilant to ensure that once the decision has been made to suspend the right to counsel, steps are taken to review the matter on a continual basis. The suspension is not meant to be permanent or convenient. The police must still comply with the implementational component as soon as circumstances reasonably permit. A decision to suspend rights that is initially justifiable may no longer be justified if the police subsequently fail to take adequate steps to ensure that the suspension is as limited as is required in the circumstances.
g. The longer the delay, the greater the need for justification. The right to counsel must be given "without delay." The case law addressing the length of time the right to counsel has been suspended has examined periods of time as short as several minutes up to an extreme example of a suspension of the right to counsel for a period of approximately 26 hours; see Blakely v. Parker[2007 CarswellOnt 5149 (Ont. Div. Ct.)], 2007 CanLII 33123. In the latter case, the police were executing a warrant to seize multiple firearms from a known violent family and the target of the search was known to be part of a criminal organization that was willing to confront and shoot police.
h. The suspension of the right to counsel must be communicated to the detainee, see: R. v. Rover, 2016 ONSC 4795 (Ont. S.C.J.) at para. 70.
c) Did the police violate Mr. Walters’ right to “hold off” questioning him until he had spoken to duty counsel?
[90] The purpose of s. 10(b) is not only that detainees be informed of their rights and obligations under the law but, as well, that they obtain advice as to how to exercise those rights. For the right to be effective, access to the advice must be before the detainee is questioned or required to provide evidence. Accordingly, the law requires police to “hold off” questioning or attempting to elicit evidence from detainees who have requested to consult with counsel until they have had a reasonable opportunity to do so: R. v. Bartle at para. 17, R. v. Sinclair, 2010 SCC 35 at para. 27; R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233 at p. 1241-1242; R. v. Taylor at para. 21.
[91] In R. v. Prosper, Lamer C.J. explained this duty at para. 35 in these terms:
35 As this court has stated on a number of occasions, s. 10(b) imposes both informational and implementational duties on state authorities who arrest or detain a person. (See Bartle at pp. 12-13 [ante, p. 20]; R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233 at pp. 1241-1242; R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, at p. 890; Brydges at pp. 203-204.) Once a detainee has indicated a desire to exercise his or her right to counsel, the state is required to provide him or her with a reasonable opportunity in which to do so. In addition, state agents must refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel. As the majority indicated in R. v. Leclair, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3 at p. 12 [hereinafter "Ross"] once a detainee asserts his or her right to counsel, the police cannot in any way compel him or her to make a decision or participate in a process which could ultimately have an adverse effect in the conduct of an eventual trial until that person has had a reasonable opportunity to exercise that right. In other words, the police are obliged to "hold off" from attempting to elicit incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel. [emphasis added]
[92] In R. v. Mackenzie, 2002 CanLII 45009 (ON CA), [2002] O.J. No. 3029 (C.A.), Moldaver J.A., as he then was, writing for the Court, considered what the word “elicit” means in this context. The accused had been arrested for murder and indicated that he wished to speak with counsel and did not want to say anything. Before he spoke with counsel, he was confronted by police with incriminating evidence, and provided incriminatory responses. The trial judge’s decision to admit the statement was considered on the appeal.
[93] For the Court, Moldaver J.A. engaged in an analysis as to whether there was a causal link between the conduct of the police and the making of the statement. He concluded, at paras 35-36:
35 In my view, had the trial judge approached the matter that way, he would have concluded that although the police did not pose direct questions to the appellant in the hope of eliciting an incriminatory response, their conduct amounted to the functional equivalent of an interrogation. Certainly, based on Constable Ouellette's experience, it was not unreasonable in the circumstances to expect that the appellant would "come clean" upon learning Ouellette's true identity, without the need for a direct question such as:" What do you have to say about your involvement now?"
36 Along the same lines, I am of the view that the conduct of the police constituted a form of manipulation which, even if unintended, had the effect of bringing about a mental state in which the appellant was more likely to talk. In this regard, it must be remembered that this is not a case in which, after speaking with counsel and being fully apprised of his rights, the appellant chose to volunteer information to the police. In that sense, the circumstances here are materially different than in cases such as Hebert and Broyles where the accused, before talking, had consulted with counsel and received legal advice.
[94] The issue of the scope of the duty to hold off, and what sorts of questions fall afoul of that duty, has arisen subsequently in a number of other cases. These cases provide some assistance in determining whether P.C. Lowe’s questioning was constitutionally impermissible.
[95] In R. v. Dupe, 2010 ONSC 6594, Dambrot J. considered the breadth of this requirement to “hold-off”. He considered whether the duty to hold off from attempting to elicit “incriminatory evidence” from a detainee precluded the asking of standard booking questions prior to the detainee having the opportunity to speak to counsel. He reasoned, at para. 22, that “such an interpretation would cast the net too wide and ignore the very purpose of holding off”. Indeed, he went on to state, at para. 24, that what is prohibited is “investigative questioning” or questions intended to elicit evidence. However, questions “to assist the accused to exercise his right, preserve his property, provide care to his family, or protect his health or safety or the health and safety of others, just to name the most obvious examples, are not prohibited by the language of Manninen”. Indeed, he stated that “the fact that the answer to an innocuous question asked for a different purpose may prove useful to the Crown does not change the character of the questioning”. Further he held at para. 26 that the language of Prosper suggests that questions that are not designed to elicit incriminatory evidence, or at least to elicit evidence relating to the offence under investigation, are not prohibited.
[96] Dambrot J. also relied on the reasoning of Code J. in R. v. Learning, 2010 ONSC 3816. The accused in that case was arrested and advised of his rights to counsel and asked to call a lawyer. Before being permitted to contact counsel, he was asked routine questions and blurted out an incriminatory utterance. In determining that there had been no s. 10(b) violation established by the accused, Code J. stated at paras. 78-82:
78 The more difficult question is whether Sgt. Schoch violated the third duty referred to in Bartle, namely, "to refrain from eliciting evidence from the detainee" until s.10(b) rights have been implemented…
81 I am satisfied that if Sgt. Schoch was merely asking the accused for background information for the Record of Arrest, such as his date of birth, address, phone number, height and weight, and was taking note of his clothing and any identifying features, this would not constitute "eliciting evidence from the detainee" or "calling upon the detainee to provide evidence". Indeed, the routine booking process when the accused first enters the station, involves similar kinds of questions that have no evidentiary value in relation to the charges against the accused. Sgt. Schoch claims that he was simply continuing this "processing" of the necessary paperwork when the accused blurted out his various utterances. Indeed, the most damaging of the utterances is the last one - "look, the gun is mine". At this point, according to Sgt. Schoch, he had elaborately cautioned the accused about the right to remain silent, had asked him if he wanted to call his lawyer and had told him that they could not discuss the matter until after the search warrant was executed.
82 As already discussed above, the evidence is not entirely satisfactory as to Sgt. Schoch's purpose when he entered the interview room. Nor is his mere notebook record of his contact with the accused particularly reliable. If the onus was on the Crown to negative a s.10(b) violation, I would likely not be satisfied. However, the onus is on the accused to establish a violation of s.10(b) on a balance of probabilities. The defence has simply raised doubts concerning Sgt. Schoch's account but has not persuaded me to the requisite degree of proof that Sgt. Schoch violated the third duty concerning "eliciting evidence". I do not accept Sgt. Schoch's account, nor can I completely reject it as it might be true. In these circumstances, the burden of proof determines the outcome.
[97] The view that asking routine booking questions does not offend the duty to hold off was accepted by Macdonnell J. in R. v. Hector, 2014 ONSC 2037 at paras. 24-29, although he acknowledged that a contrary view had been expressed in R. v. Pellech, 2012 ONSC 3027. In Hector, however, Macdonnell J. held that the admission of the answers given by the accused would violate the principle against self-incrimination and would tend to render the trial unfair. That issue does not arise in Mr. Walters’ case because the Crown has indicated that it does not seek to tender into evidence, or to use in cross-examination, the utterances made by Mr. Walters in the car.
[98] More recently, in R. v. Palmer, 2016 ONSC 153; aff’d 2018 ONCA 974 (without reference to this issue), Thorburn J., as she then was, considered whether there had been a violation of the accused’s right to counsel where, prior to him having the opportunity to consult with counsel, the police had obtained from him his cell phone number. Relying on Learning, Thorburn J. held, at para. 113 that “background information for a Record of Arrest such as date of birth, address, phone number, height and weight, and identifying features on their own, do not reveal intimate details of a person’s lifestyle or personal choices, nor do they constitute eliciting evidence from a detainee”. She went on to conclude that “the fact that an answer to an innocuous question asked for a different purpose may lead to information for which there is a privacy interest and be useful to the Crown does not change the fact that all that was asked of Mr. Palmer was for his cell number.”
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