Section 10(b) of the Canadian Charter of Rights and Freedoms preserves the right of a detained individual to contact counsel immediately upon arrest or detention, and simultaneously imposes a duty upon police to immediately inform individuals that they have this right.
The section states that “Everyone has the right on arrest or detention…
to retain and instruct counsel without delay and to be informed of that right.”
The duty of police to inform suspects of their Section 10(b) rights was firmly established by the Supreme Court of Canada in R. v. Bartle in 1994, where the accused was arrested for alleged impaired driving and the police failed to inform him of his right to contact counsel at the time of arrest. The evidence against Mr. Bartle was excluded on the basis of the Charter breach.
R. v. Feeney was a similar case in 1997, where a charge of second degree murder was thrown out after police entered the suspect’s home without a warrant and proceeded to question him without informing him of his right to counsel.
Unlike the American constitution, the Charter of Rights and Freedoms does not expressly provide for a right to state-funded counsel where the accused cannot afford to retain a lawyer. The Ontario Court of Appeal, however, has interpreted Section 7 of the Charter as requiring the government to fund defense counsel in certainly, narrowly defined circumstances. This reasoning for this was laid out in the Rowbotham decision of 1988.
Section 11(b) of the Charter protects Canadians’ right to a speedy trial in Canada, stating that “any person charged with an offence has the right… to be tried within a reasonable time.
The Supreme Court of Canada breathed life into this constitutional guarantee in 1990 with the Askov decision, ruling that a two-year delay in bringing four suspects to trial for extortion and firearms offences was a violation of their right to be tried within a reasonable time pursuant to Section 11(b). This led to a stay of proceedings against Askov and his co-accused, along with thousands of other accused persons throughout Ontario. It also set the stage for thousands of so called “Askov applications” across Canada in the subsequent years.
In 1992, the Supreme Court of Canada raised the bar for future Askov applications with the Morin decision. Although the length and cause of the delay remains a significant factor, the Supreme Court made clear in Morin that other factors must also be considered, and placed a certain onus on the accused to demonstrate that the delay prejudiced their defense or adversely affected them in some way.
Canada’s Charter of Rights and Freedoms provides for the exclusion of evidence that was obtained as a result of a Charter breach, but only in circumstances where admitting the evidence would bring the administration of justice into disrepute.
Section 24(2) of the Charter states that “where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”
The meaning of Section 24(2) was initially fleshed out by the Supreme Court of Canada in the 1987 Collins decision, where police obtained evidence of the illegal drug heroin from an aggressive and unreasonable search which was deemed to violate the Section 8 rights of the accused.
The Collins test was revisited in 2009 in the Grant case, which imposed a stricter standard for the type of Charter breach that would “bring the administration into disrepute,” and held that not every Charter breach should necessarily result in the exclusion of evidence.
The precedent set in Grant has expanded the ability of police to engage in aggressive search and seizure, essentially on a hunch, as we can see from cases such as R. v. Loewen. The current Supreme Court has made clear that only particularly aggravated or egregious Charter breaches will result in the exclusion of evidence.
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