When Law Enforcement Can Delay Access To Counsel

 In Criminal Law

The right to counsel refers to an accused or a defendant’s right to a selected or government provided lawyer.  This right is often seen as a constituent of the right to a fair trial. Though, law enforcement can choose to delay providing access to counsel if the circumstances around the criminal activity or somewhat extreme or cannot allow for immediate privacy of the accused. This is one situation where law enforcement officers delayed access to counsel and their choices were deemed justified in a court of law.

With a search warrant, police officers entered the home of a man suspected to be aiding and associating with a large drug trafficking organisation. A “no-knock” forced entry was deemed necessary to not allow any time for the accused to depose of evidence. The officers entered the home at 9:00 am and subdued the accused. The accused was then read his rights and was told that he is being detained for a CDSA warrant. The accused said he understood what he was told, and opted for a lawyer of his choosing when questioned about access to an attorney.

At this time, the officer did not provide the accused an opportunity to contact his desired lawyer. Later in court, the officer testified that the man was not provided with this opportunity to ensure the safety of officers at other residences. It is also considered impractical to provide the accused time and privacy to make a phone call while the search is taking place. Roughly 20 minutes after the officers entered the residence, the accused was transferred to the police station.

The accused arrived at the police station t 10:00 am. There the lead investigator arrested him for various drug related charges and was detained until all until 12:28 am. The accused did request access to an attorney immediately after being arrested, though his request was declined until all final searches were executed. The lead investigator later testified that the accused was detained without access to attorney as searches of related residence were still underway. At 12:28 pm the accused was provided private access to phone calls to several friends and his desired attorney.

In the court proceedings that followed, the accused applied for an exclusion of drug possession and paraphernalia from the case on the grounds that his Charter Right 10(b) was breached in delaying his access to counsel. The judge dismissed the application as a delay may be warranted under extreme circumstances.  The trial found that the Crown produced specific and articulated evidence regarding the potential for the destruction of evidence as well as for officer safety concerns during search proceedings; as several search warrants were issued that morning. Providing the accused immediate and private access to a telephone could have led to destroyed evidence and officer safety issues. The evidence showcased numerous individuals involved in the case, which solidified the legitimacy of the Crown’s concerns. The nearly three-hour delay regarding access to counsel for the accused was a result of exigent circumstances, which is not a breach of the accused 10(b) rights.

The key determinant in the judge’s ruling was that the reasons to delay access to counsel were in no way generalised or superficial. If the officers chose to delay access to counsel without definitive evidence or simply a subjective choice, the accused application would have held more legitimacy. The evidence that was provided truly justified the officer’s choices.

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