7. Subsection 10(b)

Author:David M. Paciocco - Lee Stuesser
Profession:Justice of the Ontario Court of Justice - Professor of Law, Bond University

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Subsection 10(b) of the Charter provides detained persons with the right "to retain and instruct counsel without delay and to be informed of that right." It exists in large measure to protect the self-incrimination rights of detainees by giving them the opportunity to become informed of their rights and obligations as well as to receive advice on how to ex-

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ercise them.268This does not make subsection 10(b) a substitute for the voluntariness rule. Even if subsection 10(b) is complied with, confessions can still be excluded as involuntary. This is because arming the accused with information about his rights does not assure that he will ultimately be able to enjoy those rights.269By the same token, even if statements are otherwise voluntary, there are cases where they will be excluded because of subsection 10(b) violations. Indeed, it is not uncommon for statements or other evidence provided by the accused to be excluded because of subsection 10(b) violations.

Subsection 10(b) imposes both "informational" and "implementational" duties on the police. When any of these obligations have been violated, the evidence may be excluded under subsection 24(2).

· The informational component requires the detainee to be informed both of the right to retain and instruct counsel without delay and of the existence of the legal aid and duty counsel system in place in the jurisdiction.270» Where there are special circumstances indicating that a detainee may not understand the subsection 10(b) caution, such as language difficulties or apparent mental disorder, the police must take reasonable steps to ensure that the detainee understands the information provided.271» It is a violation of subsection 10(b) for the police to belittle the accused’s lawyer with the express goal or effect of undermining the accused’s confidence in, and relationship with, defence counsel.272· The implementational component imposes the obligation on the police, when the accused has indicated a desire to consult counsel, to provide a reasonable opportunity to do so, including providing privacy for that consultation.

» Most significantly, it requires the police to refrain from eliciting evidence from the detainee until he or she has had a reasonable opportunity to consult with counsel (absent urgent circumstances).273» That right lapses where the accused has not been reasonably diligent in exercising it.274

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» Section 10(b) includes the right to consult counsel of one’s choice, unless it is not possible to do so within a reasonable...

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