S. 10(b)

Question 1

R. v. Suberu, 2009 SCC | 10(b)

Answer 1

“Without Delay” = Immediately (with limits)

• In our view, the words “without delay” mean “immediately” for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.
• Brief investigative detention/non-coercive exploratory questioning is permissible and doesn’t even trigger charter (so no s. 1 analysis needed).

Question 2

R. v. Rover, 2018 ONCA 745

Answer 2

Suspension of 10(b) – Circumstantial, contextual, fact driven
• Police practice to suspend RTC if arrestee has connection to location while SW is executed to preserve evidence – have to turn your mind to specific circumstances.
• Examples of situations where 10(b) can be temporarily suspended:
o Properly gain control of the scene of arrest and search for weapons (Strachan)
o Execution of SWs (Learning)
o Police safety
o Public safety
o Destruction of evidence; or
o “Some other urgent or dangerous circumstance” (33)

• Still need to minimize the delay (Soto)

Question 3

R. v. Keshavarz, 2022 ONCA 312

Answer 3

– 10(b) delay – suspension limits (7 hrs)
• Applies Rover – police acted correctly
• When it is suspended – must move efficiently and hold off questioning until it can be implemented. Once concerns are alleviated -> 10(b) kicks back in (95)

Question 4

R. v. Sillars, 2022 ONCA 510

Answer 4

Right to counsel suspended during compliance with screening demand, even if detainee is in hospital

Question 5

R. v. Bzezi, 2018 ONSC 170 | 10(b)

Answer 5

Simple Traffic Stop – No RTC
• Police are not required to give a detained person his s. 10(b) rights during a brief lawful Highway Traffic Act stop and investigation.

Question 6

R. v. Dussault, 2022 SCC 16

Answer 6

• RULE: Detainees do not have a right to obtain, and police do not have a duty to facilitate, the continuous assistance of counsel. Once a detainee has consulted with counsel, the police are entitled to begin eliciting evidence.

• EXCEPTIONS:
1. New procedures involving the detainee;
2. A change in the jeopardy facing the detainee; or
3. Reason to believe that the first information provided was deficient.
 Undermining the legal advice = deficient
 Can be unintentional -> look at effect not intent of police

Question 7

R. v. Sinclair, 2010 SCC 35

Answer 7

What gives rise to a re-consultation with Csl?
• Para 2:
1. New procedures involving the detainee;
2. a change in the jeopardy facing the detainee;
3. or reason to believe that the first information provided was deficient.
 These categories are not closed

Question 8

R. v. Lafrance, 2022 SCC 32

Answer 8

• Racial/subjective lens for 9 AND 10(b)

Para 79: The degree of imbalance between police and detainee will of course vary from case to case, depending on the particular circumstances of the detainees themselves. Specific characteristics of individual detainees (described as “vulnerabilities” in the context of police interrogation) can influence the course of custodial interviews. Investigating officers and reviewing courts must be alive to the possibility that these vulnerabilities, which may relate to:  o	gender,  o	youth,  o	age,  o	race,  o	mental health,  o	language comprehension,  o	cognitive capacity or other considerations, •	coupled with developments that may occur in the course of police interrogation, will have rendered a detainee’s initial legal advice inadequate, impairing his or her ability to make an informed choice about whether to cooperate with the police. In such situations, Sinclair requires that an accused is entitled to an additional consultation to even the playing field.

Question 9

R. v. Fountain, 2017 ONCA 596

Answer 9

• A Prosper warning – is required in circumstances where ‘“a detainee has asserted the right [to counsel] and then apparently change[s] his mind’ after reasonable efforts to contact counsel have been frustrated”.
• Applies in every case – not rare

Question 10

R. v. Prosper, [1994] 3 SCR 236 – Prosper warning (contents)

Answer 10

• You have the right to remain silent.
• You have the right to a reasonable opportunity to consult legal counsel and you initially indicated that you wished to do so. However, you are now indicating that you do not wish to speak to a lawyer.
• Because you have changed your mind, I have a duty to advise you again that you have the right to speak to a lawyer, and that I will give you another opportunity to do so if you wish.
• Until you are certain about whether or not you wish to speak with a lawyer, I am legally obligated not to attempt to take any statement from you or to ask you to participate in any investigative process that could result in you providing incriminating evidence to me.
• Do you understand?
• What would you like to do?