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| Patrick Ducharme |
A significant decision by the Ontario Court of Appeal is R. v. McCallen1. In this case the court held that the subsection 10(b) right to counsel includes the right to retain counsel of choice and to be represented by that counsel throughout the proceedings. Justice O’Connor, for the court, provided the following analysis of this subsection 10(b) right:
It is well established that section 10(b) includes not only the right to retain counsel but the right to retain the counsel of the accused’s choice and the right to be represented by that counsel throughout the proceedings.
In R. v. Speid2 Dubin J.A. described this as a fundamental right. He wrote:
The right of an accused to retain counsel of his choice has long been recognized at common law as a fundamental right. It has been carried forth as a singular feature of the Legal Aid Plan in this province and has been inferentially entrenched in the Charter of Rights, which guarantees everyone upon arrest or detention the right to retain and instruct counsel without delay.3
Decisions of the various courts on whether or not a person is entitled to the right to counsel of choice are often decided by the particular facts of each case. In fact, one Ontario Superior Court Justice in R. v. Jurewicz4 wrote:
What is clear from a review of the case law is that the principles will be applied in each case, in a very fact specific manner. Each case turns on its own facts.
In two other decisions in Ontario the accused did not fare well in bringing applications to exclude evidence on the basis of a breach of the right to counsel of choice. In R. v. Eakin5 and R. v. Littleford6 both defendants asserted their wish to speak to counsel of choice, the police made perfunctory attempts, or in the case of Eakin, they did not even call the lawyer because no one could find his name in the telephone book, then the police phoned duty counsel and the Ontario Court of Appeal upheld the decision of the trial Judge that the right to counsel of the defendant was not infringed.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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