#8 R. v. Taylor, 2014 SCC 50

What the case is about:

Police have an obligation to: a) inform a person of their right to counsel immediately upon detention, b) immediately implement that right once an accused has expressed a desire to exercise it at the first reasonable opportunity to do so; until this is done, police must refrain from taking any further investigative steps to elicit evidence from the accused.

The case and its significance:

Mr. Taylor was involved in a car accident and arrested for impaired driving causing bodily harm.  He was advised of his rights to counsel and advised police that he wished to exercise that right by speaking to a lawyer and his father.  The accused was taken to the hospital by ambulance where a nurse took five viles of blood from him, followed by a second sample of blood obtained by police.  At no time prior to these events was Mr. MacDonald afforded the ability to speak to counsel despite his request and right to do so.  Police did not take any steps to implement that right.

The trial judge held that there was not a section 10(b) violation because it was assumed that there was not a reasonable opportunity for the accused to speak to counsel while awaiting medical treatment.  The accused was convicted and appealed.  The Court of Appeal allowed the appeal and held that the trial judge erred in finding that there was not a reasonable opportunity to facilitate access to counsel prior to the taking of the samples.  The evidence was excluded and the accused was acquitted.  The Crown appealed to the Supreme Court of Canada.

The Supreme Court agreed with with Court of Appeal and solidified the well-established rule that access to counsel must be immediately facilities at the first reasonable opportunity.  Those opportunities cannot be effectively neutralized by police creating an environment where facilitation is not possible.  It is the obligation of police to make reasonable efforts to ensure that a person has an ability to speak to counsel at the first reasonable opportunity.  There is no necessity that police carry with them cell phones for this purpose, but it is also inexcusable to refuse an accused the opportunity to speak to counsel when there is a reasonable opportunity to do so.

Once an accused expresses a desire to speak to counsel, police are required in law to refrain from taking further investigative measures to elicit evidence from the accused until those implementation duties are fulfilled in a reasonable manner.

As stated by the Court: “Constitutional rights cannot be displaced by assumptions of impracticality. Barriers to access must be proven, not assumed, and proactive steps are required to turn the right to counsel into access to counsel.”