Right to counsel without delay

R. v. Suberu 2009 SCC 33, one of several important Supreme Court of Canada decisions released yesterday, deals with the right to counsel. One issue arising is what does the Charter means when it refers to "without delay"? The Charter reads:

10. Everyone has the right on arrest or detention...

 (b) to retain and instruct counsel without delay and to be informed of that right; ... .

Does "without delay" mean "soon", "quickly" or "immediately".

The Court ruled it means "immediately" saying:
 

[2]                              The specific issue raised in this case is whether the police duty to inform an individual of  his or her s. 10(b) Charter right to retain and instruct counsel is triggered at the outset of an investigative detention — a question left open in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 22.  It is our view that this question must be answered in the affirmative.  The concerns regarding compelled self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. Therefore, from the moment an individual is detained, s. 10(b) is engaged and, as the words of the provision dictate, the police have the obligation to inform the detainee of his or her right to counsel "without delay".  The immediacy of this obligation is only subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter.

 ...

[42]                          To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(b) creates an ill‑defined and unworkable test of the application of the s. 10(b) right.  The right to counsel requires a stable and predictable definition.  What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding.  An ill‑defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police.  In our view, the words "without delay" mean "immediately" for the purposes of s. 10(b).  Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.

James Morton
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