R. v. Keshavarz, 2022 ONCA 312
[71] In Rover, this court recognized that in specific circumstances the implementational component of the right to counsel may be suspended. Those specific circumstances often involve concerns over police or public safety or the preservation of evidence: see Rover, at para. 26. See also Suberu, at para. 42; Griffith, at para. 38. Indeed, the suspension of the implementational component of the right to counsel has been recognized in the context of needing to execute search warrants, just like this case: see Strachan, at pp. 998-99; Rover, at para. 26; R. v. Learning, 2010 ONSC 3816, 258 C.C.C. (3d) 68, at paras. 71-75; and Griffith, at para. 38.
[72] The difficulty with suspending the facilitation of contact with counsel is that the seriousness of doing so cannot be gainsaid. As noted by Doherty J.A. in Rover, at para. 45, the right to counsel is a “lifeline” for all those who are detained. The right to counsel assists detainees with regaining their liberty and acts as a “guard against the risk of involuntary self-incrimination”: Suberu, at para. 40. As well, there is a recognized “psychological value” to providing access to counsel, a value that “should not be underestimated”: Rover, at para. 45.
[73] At the same time, the critical importance of protecting the safety of the public and law enforcement, as well as preserving evidence – particularly evidence such as deadly weapons that are illegal to possess – cannot be refuted.
[74] To resolve the inherent tension that arises when these laudable goals collide, the law permits a delay in the facilitation of the right to counsel, but only where the police have turned their minds to the specific circumstances of the case and concluded “on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel”: Rover, at para. 27. Doherty J.A. explained the test as follows in Rover, at para. 33:
[T]o fall within the exception to the requirement that an arrested person be allowed to speak to counsel without delay, the police must actually turn their mind to the specific circumstances of the case, and they must have reasonable grounds to justify the delay. The justification may be premised on the risk of the destruction of evidence, public safety, police safety, or some other urgent or dangerous circumstance.
[75] Where those circumstances prevail, the police must move as efficiently and reasonably as possible to minimize any ensuing delay: see Rover, at para. 27; Griffith, at para. 38. They must also suspend any questioning of the detainee until such time as the implementational component of the right to counsel has been accommodated.
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