Case information

Charter of Rights – Right to counsel – Criminal law – What is the subjective requirement for police to justify delay in facilitating access to counsel – Charter of Rights and Freedoms, s. 10(b).

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The Toronto Police Service (“TPS”) arrested the applicant while executing a search warrant. The TPS officers found a handgun on his person, they advised him of his right to counsel and he asked to speak with a lawyer. Nearly an hour and a half passed (the first period of delay) before an officer called for transport so that the applicant could be taken to the police station where he would be able to call a lawyer. The applicant was brought to the police station in the custody of the Durham Regional Police Service (“DRPS”). The applicant’s lawyer call was further delayed for more than two additional hours (the second period of delay) because officers at the station took no steps to facilitate it. At trial, the Crown conceded a s. 10(b) Charter breach had occurred due to a delay in facilitating a call to counsel. But the Crown disagreed with the defence about when the breach began, asserting that it was limited to the second period of delay. The trial judge found the s. 10(b) Charter breach started at the police station whereupon DRPS breached his rights. The trial judge held that the evidence should be admitted pursuant to s. 24(2) of the Charter. The applicant was convicted of multiple firearm possession and drug trafficking offences. The appeal was dismissed.