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| Patrick Ducharme |
Continued from part 2.
The duty of the police is to provide the accused with access to the advice of counsel at the earliest practicable opportunity. To suggest, as the trial Judge had found in this case, that it was reasonable to delay the implementation of the right to counsel for the entire duration of the accused’s time waiting for and receiving medical treatment in the hospital emergency ward, without any evidence of the particular circumstances that justified the failure of the police to assist the accused to obtain legal advice, thus violating his constitutional right to legal advice “without delay”. (para. 32)
The duty to inform a detained person of his or her right to counsel arises “immediately” upon arrest or detention (Suberu, at paras. 41-42), and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee’s request to speak to counsel. The arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances.
The court found that not everything that happens in an emergency ward is necessarily a medical emergency of such proportions that communication between a lawyer and an accused is not reasonably possible. Constitutional rights cannot be displaced by assumptions of impracticality. Barriers to access must be proven, not assumed, and proactive steps are required to turn the right to counsel into access to counsel. (para. 33)
An individual who enters a hospital to receive medical treatment is not in a Charter-free zone. Where the individual has requested access to counsel and is in custody at the hospital, the police have an obligation under s. 10 (b) to take steps to ascertain whether private access to a phone is in fact available, given the circumstances. Since most hospitals have phones, it is not a question simply of whether the individual is in the emergency room, it is whether the Crown has demonstrated that the circumstances are such that a private phone conversation is not reasonably feasible. (para. 34)
The result of the officers’ failure to even turn their minds that night to the obligation to provide this access, meant that there was virtually no evidence about whether a private phone call would have been possible, and therefore no basis for assessing the reasonableness of the failure to facilitate access. In fact, this is a case not so much about delay facilitating access, but about its complete denial. The court found that “it is difficult to see how this ongoing failure can be characterized as reasonable”. Mr. Taylor’s s. 10 (b) rights were clearly violated. With respect, the trial Judge erred in concluding otherwise. (para. 35)
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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