Right to counsel

R. v. Manchulenko, 2013 ONCA 543:

[63]       The purpose of the right to counsel is to allow a detainee not only to be informed of his rights and obligations under the law but, equally, if not more importantly, to obtain advice about how to exercise those rights: R. v. Manninen, [1987] 1 S.C.R. 1233 at pp. 1242-1243; R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 26.

[64]       Section 10(b) of the Charter has two components.  The first, the informational component, requires and ensures that the detainee is advised of his or her rights to counsel.  The second, the implementational component, requires that the detainee be given a reasonable opportunity to exercise his or her right to counsel, should she or he decide to do so.  Implicit in the implementational component is a duty on the police to hold off questioning or requiring the detainee to participate in investigative procedures, or eliciting evidence until the detainee has a reasonable opportunity to consult counsel:Sinclair, at para. 27.

[65]       The duties of the police under the implementational component of s. 10(b), however, are not absolute.  Unless the detainee invokes the right to counsel and is reasonably diligent in exercising it, the correlative duties of the police to provide a reasonable opportunity for the detainee to exercise the right, and to refrain from eliciting evidence, will either not arise in the first place or will be suspended: Sinclair, at para. 27; R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 33; R. v. Tremblay, [1987] 2 S.C.R. 435, at p. 439; and R. v. Black, [1989] 2 S.C.R. 138, at pp. 154–155.

[66]       When a detainee, diligent but unsuccessful in contacting counsel, changes his or her mind and decides not to pursue contact with a lawyer, s. 10(b) requires the police to explicitly inform the detainee of his or her right to a reasonable opportunity to contact counsel and of the police obligation to hold off in their questioning or otherwise eliciting evidence until then: Willier, at para. 32;Prosper, at p. 274.  What amounts to reasonable diligence in the exercise of the right to contact counsel depends on the context, and requires a fact-specific inquiry into all the circumstances: Willier, at para. 33.