I argued the summary conviction appeal in the Superior Court of Justice in Peel. Justice Durno allowed the appeal, excluded the evidence of the refusal and in so doing made these observations:

7. The officer agreed the appellant had said a number of times that he wanted to speak to his own lawyer. He continued, “if he did have a number that he could readily provide us, we would have put him in contact with that person”. When asked why no further inquiry was made, the officer said, “At that point, he had already been in contact with duty counsel.” The officer’s opinion was the appellant was entitled to legal counsel, and he had already received it.

9. … the technician … keeps saying, while he did not speak to his own lawyer, he did speak with duty counsel. In the video, the appellant did not express any dissatisfaction with duty counsel, nor did he indicate he failed to understand the direction from the police.

13. The appellant admitted he never gave the police the lawyer’s name, but noted they never asked for it. He did not know the counsel’s name at the time.

20. Since the trial, the Court of Appeal released the judgment in R. vs. Littleford … which is instructive on the issues to be determined. That judgment, in addition to R. v. Mayo, establishes that there is no breach of s. 10(b) of the Charter if the detainee speaks to duty counsel after asking to speak to their own counsel, where the police first attempt to contact private counsel and are unable to do so. Unless the appellant did not understand the rights from counsel, had received inadequate legal advice, and still sought to contact his or her counsel, or the police conduct interfered with the detainee’s ability to assert the rights, there is no violation of s. 10(b).

21. What the cases do not establish is that police officers can go directly to duty counsel when a detainee wants to contact his or her counsel of choice. With respect, I disagree with the trial judge’s conclusion that the police are not obliged to contact counsel of choice where a detainee has spoken to duty counsel. The availability of duty counsel 24 hours a day cannot be used to trump a detainee’s right to counsel of choice. (Emphasis added.)

29. On this record the appellant sought his own counsel before he spoke to duty counsel, and the officers did nothing to assist him in his efforts to contact Mr. Engel. They erroneously felt they could use the duty counsel as a short cut to circumvent the right to counsel of choice, or felt that as long as a detainee spoke to any lawyer they had complied with s. 10(b). On either analysis the officers were wrong.

30. Even if the appellant had not asked until after he spoke to duty counsel, he had the right to have police facilitate that contact, provided he was honestly attempting to obtain legal advice: R. vs. Keeley, [1996] O.J. No. 2306 (Ont Ct. Prov. Div).

31. The evidence of the refusal should be excluded as there was a clear violation of s. 10(b). The admission of the evidence would affect trial fairness. The violation was serious.