Friday, August 31, 2012

Right to consult counsel arises only if consultation requested

R. v. Fuller, 2012 ONCA 565 holds that an accused has to be told of the right to counsel but unless the accused asks for counsel no counsel need be provided: 

[16]       Section 10(b) of the Charter provides: "everyone has the right on arrest or detention … (b) to retain and instruct counsel without delay and to be informed of that right."  The guarantee of the right to counsel in s. 10(b) of the Charter imposes three obligations on the police – the first is informational and the second and third are implementational: see R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 29:

The purposes of s. 10(b) serve to underpin and define the rights and obligations triggered by the guarantee.  In Bartle, Lamer C.J. summarized these rights and obligations in terms of the duties imposed upon state authorities who make an arrest or effect a detention (p. 192).  Section 10(b) requires the police

(1)   to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;

(2)   if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and

(3)   to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

[17]       The important point for this appeal is that the police's implementational obligations arise only when detainees express a wish to exercise their right to counsel: see Willier, at para. 30:

The first duty is an informational duty, while the second and third duties are implementational in nature and are not triggered until detainees indicate a desire to exercise their right to counsel.

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