R. v. Brown, 2024 ONCA 763
[32] Section 10(b) of the Charter stipulates that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.
[33] This provision has both “informational” and “implementational” components. Upon arrest or detention, police must “immediately” advise a detainee of their right to counsel. If the detainee asks to speak to counsel, police must facilitate a lawyer call “at the first reasonably available opportunity.” Until that implementational obligation is discharged, police must refrain from attempting to elicit evidence from the accused: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 38; R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at paras. 24-28.
[34] Recently, in R. v. Brunelle, 2024 SCC 3, 92 C.R. (7th) 219, the Supreme Court explained that whether the delay in exercising the right to counsel is reasonable is a “factual and highly contextual inquiry”. Barriers to access or “exceptional circumstances” cannot be assumed; they must be proved by the Crown: Brunelle, at para. 83.
[35] This court arrived at a similar conclusion in R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 33, where it held that 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 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”: Rover, at para. 33.
[36] Where those circumstances exist, the police must move as efficiently and sensibly as possible to minimize any ensuing delay: R. v. Keshavarz, 2022 ONCA 312, 413 C.C.C. (3d) 263, at para. 75; see also Rover, at para. 27.
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