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Detainee must ask to trigger right to counsel

There is no need to provide a detainee with an opportunity to exercise their right to a lawyer unless they express a desire to do so.

In R. v. Fuller & White, 2012 ONCA 565 police believed four suspected drug dealers (not the accused persons) were living at a two story residence following “Project Ulverston,” a joint forces operation. They obtained a search warrant for the residence to be executed in the middle of the night and entered at about 3:40 am while the men were sleeping.


September 4, 2012
By Mike Novakowski

There is no need to provide a detainee with an opportunity to exercise their right to a lawyer unless they express a desire to do so.

In R. v. Fuller & White, 2012 ONCA 565 police believed four suspected drug dealers (not the accused persons) were living at a two story residence following “Project Ulverston,” a joint forces operation. They obtained a search warrant for the residence to be executed in the middle of the night and entered at about 3:40 am while the men were sleeping.

One of the four main floor bedrooms belonged to Fuller and a basement bedroom belonged to White. The lead investigator smelled a strong odour of marijuana and saw a bong on the kitchen table. Four occupants, including Fuller, were detained in the living room of the main floor for conspiracy to possess marijuana for the purpose of trafficking. They were advised of their right to counsel and cautioned about making statements. Each declined to call a lawyer at that time.

White was found in his basement bedroom, advised of his right to counsel and told he had the right to say nothing. He was also cautioned about making a statement and answered “not now” when asked if he wished to call a lawyer.

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White told police there was “just some weed and mushrooms in the closet” but police found a small safe. White said Fuller had the key. Fuller initially denied knowing where it was but eventually produced a set of keys from a desk drawer in his bedroom. He said the safe belonged to him and White and told the officer there was “a bit of weed inside.” Police also found another key to the safe on a set of White’s keys they found in his bedroom.

Police found baggies, packaging materials, a digital scale, $80, bags containing 440.92 grams of marijuana and 207.9 grams of psilocybin and a film canister with 9.6 grams of cannabis resin in the safe. The men were arrested, taken to the station, reread their rights and offered an opportunity to contact counsel. They were charged with possession and possession for the purpose of trafficking.

An Ontario Court of Justice judge found police told Fuller and White about their right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel – thereby complying with the s. 10(b) Charter obligation – but breached the implementational component. He excluded Fuller’s and White’s statements admitting they had marijuana and magic mushrooms stashed in the safe under s. 24(2) and acquitted them.

The Crown challenged the ruling to the Ontario Court of Appeal, contending that the judge erred in finding the implementation component of the s. 10(b) right had been breached. Justice Laskin, speaking for the court, agreed.

“The guarantee of the right to counsel in s. 10(b) of the Charter imposes three obligations on the police – the first is informational and the second and third are implementational,” he said. “The police’s implementational obligations arise only when detainees express a wish to exercise their right to counsel.”

Thus, police must first inform a detainee of their right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel. Then, if the detainee indicates a desire to exercise this right, they must provide them with a reasonable opportunity to do so (except in urgent and dangerous circumstances) and refrain from eliciting evidence from the detainee until they have had a reasonable opportunity (except in cases of urgency or danger).

Police met their informational obligation – they told Fuller and White about their right to counsel. The implementational obligations are only triggered when a detainee indicates a desire to exercise the right to counsel. There was no evidence from any witness that either Fuller or White asked for a lawyer or indicated a desire to speak to one. The trial judge erred in finding a breach of s. 10(b) and his ruling excluding the statements could not stand.

The Crown’s appeal was allowed, the acquittals set aside and a new trial ordered.


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