The implementational duties imposed under s. 10(b) of the Charter only require police to offer a reasonable opportunity to contact counsel; there is no obligation to ensure the detainee actually called a lawyer.
In R. v. Beauregard, 2016 ABCA 37 the accused was arrested on a warrant for robbery. Four masked and armed men had robbed a truck stop a little over three months earlier. Beauregard was read a standard Charter caution and replied "yeah" when asked if he wanted a lawyer. He was placed in a telephone room at the police station with a list of about 20 local lawyers, the number for Legal Aid and a phonebook. He was off the phone after five minutes.
The arresting officer entered the room and asked if he was done. "Yes," Beauregard replied. The following day, a police officer took him from his cell to an interview room. He was cautioned but nevertheless confirmed his involvement in the armed robbery during the interview. This helped prove his identity as one of the robbers.
An Alberta Court of Queen's Bench judge found that, during his time in the telephone room, Beauregard had not talked to any lawyer but instead called his mother. The arresting officer never explicitly asked him if he had talked to a lawyer, nor had Beauregard advised he had not spoken to one. Although police complied with the informational duties imposed under s. 10(b) of the Charter, the judge concluded that they breached the implementational duty.
"In my view the implementational duty is only satisfied if a reasonable period of time to contact a lawyer has been provided and before moving to elicit evidence the officer confirms the detainee has been able to speak to a lawyer," said the judge.
A detainee who has been unable to reach a lawyer after five minutes, and who is asked by a police officer, ‘Are you done', may well feel pressure to wrap it up and may not have the fortitude to ask for more time or may not realize they are entitled to a reasonable opportunity to reach counsel, and more time if their initial attempts are unsuccessful."
As a remedy for this Charter breach, the judge excluded Beauregard's statement under s. 24(2) and acquitted him. The Crown appealed Beauregard's acquittal to the Alberta Court of Appeal, arguing that the trial judge erred in finding a s. 10(b) Charter violation.
The court found police sufficiently discharged their implementational duties. They placed Beauregard in a telephone room with the usual phone numbers. The onus then shifted to Beauregard to make it clear that he had not reached counsel and wanted further opportunity. Beauregard said nothing about being unsuccessful and there was no positive obligation on police to ask him.
"When the [accused] indicated he wished to talk to a lawyer, he was taken to the detachment and placed in a telephone room," said the court.
The only reasonable inference is that the purpose of him being put in that room was to contact counsel. When [the arresting officer] asked him if he was 'done,' the only thing that question could have referred to was the 'contacting of counsel.' When the [accused] replied 'Yup,' that answer could not reasonably be interpreted as being 'No, I never contacted counsel.' The police are entitled to act on what the detained person tells them, analysed objectively.
Nor was this a situation where Beauregard waived his rights after asserting them such that a subsequent Prosper warning was required. Beauregard said that he wanted to contact counsel, was given the opportunity to do so and replied affirmatively when asked if he was finished.
"There was no objective basis on which the police could be expected to take his actions and responses as a waiver of the right to contact counsel, and Prosper was not triggered," said the appeal court.
Since there was no obligation to positively ask if a detained person has been successful in contacting counsel, Beauregard failed to discharge his burden in proving a s. 10(b) breach. His statement obtained the next day was admissible as evidence.
Furthermore, even if there had been an implementational breach of s. 10(b), the statement was nonetheless admissible under s. 24(2). Any breach was minor and done in good faith, the impact on Beauregard was minimal, and there was a strong public interest in prosecuting the robbery, a violent crime.
The Crown's appeal was allowed, Beauregard's acquittals were set aside and a new trial ordered.