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Supreme Court of Canada rules right to counsel continues during medical treatment

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In R. v. Taylor, "The accused was arrested for impaired driving causing bodily harm when he lost control of his vehicle injuring three of his passengers. At the time of his arrest, he was informed of his Charter rights, including his right to counsel, and was asked whether he wanted to call a lawyer. The accused responded that he wanted to speak both to his father and to his lawyer. At no time was the accused given access to a phone while at the scene of the accident. As a precaution and in accordance with normal practice, the accused was taken by ambulance to the hospital for examination. At the hospital, a nurse took five vials of blood from the accused. The police later demanded and obtained a second set of samples of the accused’s blood for investigative purposes. At no point during the accused’s time in hospital did the police attempt to provide him with an opportunity to speak to his lawyer or determine whether such an opportunity was even logistically or medically feasible. The police successfully applied for a warrant to seize the first vials of blood the hospital took from the accused. The trial judge agreed with the Crown that the second set of blood samples were taken in violation of the accused’s s. 10 (b) rights, but found that there was no breach of the accused’s s. 10 (b) rights prior to the first samples being taken. This was based on the trial judge’s assumption that where an accused is awaiting or receiving medical treatment, there is no reasonable opportunity to provide private access to the accused to a telephone to implement his right to instruct counsel. The first set of blood samples were admitted at trial. On the basis of this evidence, the accused was convicted of three counts of impaired driving causing bodily harm. A majority in the Court of Appeal allowed the appeal, finding that the trial judge erred when he concluded that there was no reasonable opportunity to facilitate access to a lawyer prior to the taking of these blood samples. The evidence was excluded, the conviction set aside, and an acquittal entered." The S.C.C. (unanimously) dismissed the appeal.

Justice Abella wrote as follows (at paras. 1-2, 19, 24-28, 34):

" This is a case about the police informing an individual about his right to counsel as soon as he was arrested, then promptly forgetting to implement it throughout his detention, including during his stay in a hospital. While he was at the hospital, blood samples were taken which were used as evidence at trial to convict him of impaired driving causing bodily harm.

Section 10 (b) of the Canadian Charter of Rights and Freedoms guarantees that detained or arrested individuals have the right to retain and instruct counsel without delay. In R. v. Manninen, [1987] 1 S.C.R. 1233, this Court recognized that this imposes a corresponding duty on the police to ensure that individuals are given a reasonable opportunity to exercise the right. This appeal is about the scope of that duty when a detained individual is receiving medical treatment. The question before us is whether the police’s failure to take any steps to implement or facilitate access to counsel is a breach of s. 10 (b) in the circumstances. In my view, it is and the evidence should be excluded.

A majority in the Court of Appeal allowed the appeal, finding that the trial judge erred when he concluded that there was no reasonable opportunity to facilitate access to a lawyer prior to the taking of the first set of blood samples. In its view, Mr. Taylor’s s. 10 (b) rights were violated, and this resulted in Mr. Taylor’s “inability to exercise a meaningful and informed choice as to whether he should or should not consent” to the taking of blood samples by the hospital. The evidence was excluded, the conviction set aside, and an acquittal entered. I agree with the majority of the Court of Appeal’s conclusion.

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 (R. v. Luong (2000), 271 A.R. 368, at para. 12 (C.A.)). Whether a delay in facilitating access to counsel is reasonable is a factual inquiry.

This means that to give effect to the right to counsel, the police must inform detainees of their s. 10 (b) rights and facilitate access to those rights where requested, both without delay. This includes “allowing [the detainee] upon his request to use the telephone for that purpose if one is available” (Manninen, at p. 1242). And all this because the detainee is in the control of the police and cannot exercise his right to counsel unless the police give him a reasonable opportunity to do so (see Brownridge v. The Queen, [1972] S.C.R. 926, at pp. 952-53).

Until the requested access to counsel is provided, it is uncontroversial that there is an obligation on the police to refrain from taking further investigative steps to elicit evidence (R. v. Ross, [1989] 1 S.C.R. 3, at p. 12; R. v. Prosper, [1994] 3 S.C.R. 236, at p. 269).

The majority in the Court of Appeal was of the view that in light of Cst. MacGillivray’s acknowledgement that he could have provided his own cell phone, the “‘mistake’ in failing to provide it” gave rise to a breach of s. 10 (b). The Crown takes issue with this finding, and I agree that in light of privacy and safety issues, the police are under no legal duty to provide their own cell phone to a detained individual.

But the police nonetheless have both a duty to provide phone access as soon as practicable to reduce the possibility of accidental self-incrimination and to refrain from eliciting evidence from the individual before access to counsel has been facilitated. While s. 10 (b) does not create a “right” to use a specific phone, it does guarantee that the individual will have access to a phone to exercise his right to counsel at the first reasonable opportunity.

An individual who enters a hospital to receive medical treatment is not in a Charter-free zone."

Note: This summary is drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.