Right to Counsel

The recent Court of Appeal decision in R v Smith, 2008 ONCA 127 emphasizes the importance of the right to counsel.



The accused was arrested for dangerous driving. The police quickly concluded that he was involved in a home invasion involving a firearm. Despite repeated request by the accused the police did not allow the accused to speak to counsel -- the police were concerned that any use of a telephone would lead to the firearm (not then recovered) being hidden.



The police continued questioning the accused regarding the firearm even though he had asserted a right to counsel and not been allowed to call a lawyer.



The decision deals with several other issues but for this note the Court's ruling on the duty of police to cease questioning is key.



In addition to imposing a duty on police to inform a detainee of the right to counsel and to afford him or her a reasonable opportunity to exercise that right, the Charter requires police "to cease questioning or otherwise attempting to elicit evidence from the detainee" until that opportunity has been provided.