Obtaining Counsel of Choice via a 3rd Party

A recent decision out of the Ontario Superior Court of Justice (R. v. Treliving 2013 ONSC 3368) has prompted a reminder that the right to retain and instruct counsel includes the right to contact others to obtain counsel.  A person who requests to call someone, other than a lawyer in connection with instructing counsel, is asserting the desire to exercise their right to counsel.  A person who seeks to contact counsel by requesting to call a 3rd party in connection with exercising that right, is not waiving their right to counsel.  As noted in R. v. Brydges (1990) S.C.J. No. 8, in the vast majority of cases, once the detainee has expressed a desire to contact counsel, police must facilitate the detainee’s efforts to do so.  This obligation includes facilitating contact with counsel of choice where a request has been made to speak to a specific counsel.  This is so whether the person has counsel’s number available or not.  It also includes permitting a phone call to a friend or relative to obtain the name of counsel of choice.

There  must be some communication to the police that the necessity of contacting a non-lawyer is to obtain from that third party, information about the means of identifying or contacting a private counsel.  Once that is done, if the police fail to assist the arrested party in obtaining that information, then they run the risk of a clear implementational violation of s. 10(b).

Many other courts have reached this decision (R. v. Tremblay (1987) S.C.J. No. 59, R. v. LaPlante (1987) S.J. No. 723, R. v. McNeilly (1988) Y.J. No. 71), to name but a few.

Leave a comment

Filed under Recent Case Law, Section 10 Charter, Worthy of a Review

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s