R v Araya, 2025 ABCA 61
[50] The right to counsel under section 10(b) of the Charter requires that everyone arrested or detained be informed of their right to contact counsel, and if they ask to speak to counsel, to be provided with access to counsel at the first reasonably available opportunity. See R v Suberu, 2009 SCC 33 at paras 40-43, R v Brunelle, 2024 SCC 3 at paras 80-83, R v Brown, 2024 ONCA 763 at paras 32-33.
[51] In this case the issue was whether the appellant was provided access to contact counsel at the first reasonably available opportunity.
[52] The implementation of the right to counsel is to be done immediately, however, there are exceptions where there is a risk of destruction of evidence, public safety, police safety and other urgent or dangerous circumstances. See Suberu at para 42, R v Badu, 2022 ABCA 267 at para 43, R v Rover, 2018 ONCA 745 at paras 26-27, Brown at para 35. The determination of whether the delay is justified and reasonable involves a fact specific and highly contextual inquiry that must be proven by the Crown: Brunelle at para 83, Brown at para 34, Rover at para 28.
[53] The execution of a search warrant has been recognized as a reasonable justification for delaying access to counsel in some circumstances: Rover at para 26, R v Griffith, 2021 ONCA 302 at paras 2-3. However, as stated by this Court in R v Russell, 2020 ABCA 90 at paragraph 19, “concerns of a general or non-specific nature applicable to virtually any search cannot justify delaying access to counsel”. The police must turn their minds to the specific circumstances of the case in question and conclude on a reasonable basis that there are police or public safety concerns or a need to preserve evidence which justifies the delay in granting access to counsel. “Even when those circumstances exist, the police must also take reasonable steps to minimize the delay in granting access to counsel”: Rover at para 27. Where there is no specific basis to support the concerns of the police regarding officer safety or destruction of evidence, the delay will breach section 10(b) of the Charter: Badu at para 48.
[59] In his decision, the trial judge referred to the Rover, Griffith and Badu cases and stated that “Detective Fleming articulated case-specific and eminently reasonable reasons why he made the decision to delay the accused’s access to a telephone”: Araya at para 52. He found that the specific concerns of Detective Fleming justified the delay in this case. We see no error in the trial judge’s reasoning and conclusion that there was no section 10(b) breach because of the delay in allowing the appellant to contact counsel between 3:15 pm and 6:30 pm on the date in question.
The Second Delay of Section 10(b) Rights
[60] At 6:30 pm the appellant was to be given access to a telephone to contact counsel but did not access a telephone until 10:50 pm. The trial Crown conceded this second delay breached the appellant’s section 10(b) Charter rights.
[61] The appellant argues that the trial judge erred in stating that the appellant had the onus of establishing the facts underlying a Charter application and that he had not done so. The appellant argues that he need only show that there was a delay and then the Crown bears the burden to justify the delay.
Law on Proof of Access to Counsel
[62] In R v Taylor, 2014 SCC 50 at para 24, the Supreme Court stated that the police are under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances. Where a detainee indicates they wish to speak to counsel at approximately 6:18 pm but they do not make a call until 10:50 pm, there is a delay which the Crown must then show to be reasonable: R v Hobeika, 2020 ONCA 750 at para 74.
[63] In R v Luong, 2000 ABCA 301, this Court stated at paragraph 9 that “the onus is upon the person asserting a Charter violation to establish the infringement or denial of the right guaranteed by the Charter”. This Court went on at paragraph12 stating in part:
A trial judge must first determine whether or not, in all the circumstances, the police provided the detainee with a reasonable opportunity to exercise the right to counsel; the Crown has the burden of establishing that the detainee who invoked the right to counsel was provided with a reasonable opportunity to exercise the right.
[64] The issue is whether the police have shown that the appellant was given a reasonable opportunity to exercise the right to counsel.
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