Limits on right to counsel

The right to consult with counsel is fundamental. The Constitution protects the right to consult with counsel.

Recent Court decisions, however, have clarified the boundaries of this right.

It seems that the right is limited (see today's decision in R. v. Connelly, 2009 ONCA 416) and if an accused, who for these purposes seems to be assumed to be sophisticated as to legal rights, seeks to consult counsel for one purpose (here bail) there may be a waiver of the right to consult for other purposes.

Accordingly, an accused needs to be very clear they want to consult with counsel for general purposes or they will risk losing the right.

The Court held:

[15]          In this case, the appellant asked to speak to a particular lawyer.  As I understand her reasons, the trial judge found as a fact that the appellant wanted to speak to his lawyer, not to obtain advice before speaking to the police, but to ensure that she would be available for advice prior to his bail hearing the following day.  I have not been persuaded that this finding of fact is unreasonable.  In light of those findings, despite the very able submissions of duty counsel, Mr. Di Luca, who assisted the appellant, in my view, the appellant's right to counsel was not violated. 


James Morton
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Toronto, Ontario
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