Canada Case Law

R. v. Brown

Court

Court of Appeal for Ontario

Given the fluid, high‑risk circumstances (three detainees including one with a loaded gun, an outstanding attempted‑murder suspect, missing weapons and narcotics in a vehicle) the trial judge correctly found the first reasonably available opportunity to facilitate a lawyer call arose only after transfer to the DRPS station; TPS did not breach s.10(b) before transfer, the evidence was properly admitted under s.24(2), and there is no basis to disturb the convictions or sentence.

Source excerpt

• Right to counsel
• S.10(b) charter
• S.24(2) exclusion of evidence
• Search and seizure
• Evidence admissibility
• Sentencing

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R. v. Hamouth

Court

Court of Appeal for Ontario

On review of the sealed unredacted ITO the issuing justice could have properly inferred the son’s residential attachment and issued the warrant; the Crown’s concession to exclude inculpatory statements mitigated s.10(b) impact and, after a Grant balancing that gave deference to the trial judge, the firearms were admissible because the breaches, while serious, had limited impact given lack of causal connection and discoverability; convictions for possession were reasonable; one s.95(1) conviction for the non‑restricted Winchester was set aside and replaced with a s.92(1) conviction; the senten…

Source excerpt

• S.8 charter
• S.10(b) charter
• S.24(2) charter
• Garofoli review
• Grant factors
• Discoverability

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R. v. Dubensky

Court

Supreme Court of British Columbia

The court upheld the arrest and incidental search of Michael John Dubensky on reasonable and probable grounds, but found a breach of his s. 10(b) right to counsel.

• Warrantless arrest
• Reasonable and probable grounds
• Search incidental to arrest
• Right to counsel
• S.9 charter
• S.10(b) charter

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R. v. Ali

Court

Supreme Court of British Columbia

The court held that passive CCTV video-recording of a detainee during a lawyer call did not breach s. 10(b), and misleading script wording did not establish a Charter breach.

• Right to counsel
• S.10(b) charter
• Privacy (audio vs visual)
• Solicitor-client privilege
• Cctv/video recording in custody
• Exclusion of evidence

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R. v. Ceballo

Court

Court of Appeal for Ontario

The Court upheld the trial judge: the evidence established only routine border inspection and questioning, the appellant failed to prove detention or that the officer had a sufficiently strong particularized suspicion or had decided to commence intrusive investigation prior to the admission, and any minor misapprehensions did not affect the outcome; conviction stands.

Source excerpt

• Detention
• Search and seizure
• S.10(a) charter
• S.10(b) charter
• S.24(2) charter exclusion
• Customs act s.98

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R. v. O'Reilly

Court

Supreme Court of British Columbia

The court found police breached s. 10(b) by delaying access to counsel after detention and by asking booking questions that elicited incriminating information.

• Right to counsel
• S.10(b) charter
• Implementational duty
• Elicitation of evidence
• Delay in facilitating counsel
• Booking procedures

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R. v. Vernon

Court

Court of Appeal for Ontario

Leave to appeal was denied because, on the uncontested findings of the trial judge affirmed on summary conviction appeal, the police failed to afford and facilitate the detainee's contact with counsel, so the case did not raise the Crown's asserted novel issue and did not meet the R.R. test.

Source excerpt

• S.10(b) charter
• Right to counsel
• Duty to facilitate counsel contact
• Leave to appeal (r.r. test)

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R. v. Swift

Court

Supreme Court of British Columbia

Appeal from an impaired-driving conviction allowed because the accused was not given a reasonable opportunity to consult counsel of choice, breaching s. 10(b).

• Right to counsel
• S.10(b) charter
• Controlled access to telephone
• Breath sample collection
• Reasonable opportunity to retain counsel
• Right-to-counsel

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R. v. Buck

Court

Nova Scotia Provincial Court

Police failed to act with reasonable diligence: they only pointed to and dialled a disconnected number, did not consult other sources or use the sergeant's knowledge to obtain an alternate number, and a sergeant's discouraging remark prevented further efforts by the accused; the accused had acted diligently until discouraged, therefore s.10(b) was breached.

Source excerpt

• Right to counsel of choice
• S.10(b) charter
• S.24(2) exclusion of evidence
• Police duty to facilitate counsel contact
• Impaired driving (s.253 criminal code)

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R v. Van Binnendyk

Court

Court of Appeal for Ontario

The appellant failed to prove on a balance of probabilities that his s.10(b) right was breached because the police provided a reasonable opportunity to contact counsel, attempted to contact his chosen lawyer, informed him of Legal Aid and offered to contact another lawyer, and the appellant refused those alternatives and did not act with reasonable diligence; therefore no Charter breach occurred and the conviction stands.

Source excerpt

• Right to counsel
• S.10(b) charter
• Reasonable diligence in choice of counsel
• Admission of breathalyzer evidence
• S.24(2) charter (not addressed)

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