Crossing the Lifeline: The Psychological Benefits of Counsel in R v Whittaker

The Court of Appeal for Ontario (the “ONCA”) has provided an emphatic reminder regarding the importance of timely access to counsel. R v Whittaker, 2024 ONCA 182 reinforces the notion that extended delays in accessing counsel will generally have an extensive impact on a detainee’s s. 10(b)-protected interests. Emphasizing the psychological benefits of speaking with counsel while in custody, Whittaker illustrates how deferring or denying access to counsel can single-handedly prompt a court to exclude critical evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms (the “Charter”).

What the Right to Counsel Protects

Section 10(b) of the Charter protects the right to counsel upon arrest or detention. If an individual requests to speak with counsel, police must provide them with an opportunity to do so immediately, barring any justifiable delay arising out of concerns for officer or public safety. The obligations that s. 10(b) places on police have largely remained settled. In contrast, the interests protected by the right to counsel have evolved in recent appellate jurisprudence.

The right to counsel empowers individuals to assert their rights under law while in a position of vulnerability vis-à-vis the state. The right protects interests beyond its immediate scope, which may be undermined if detainees do not understand the nature of their s. 10(b) rights and, as a result, do not exercise them effectively.

The interests at stake depend on the nature of the detainee’s interaction with police. In R v Sinclair, 2010 SCC 35, for example, McLachlin C.J. and Charron J. emphasized that “chief among the rights that must be understood by the detainee is the right under s. 7 of the Charter to choose whether to cooperate with the police or not.” (Sinclair, para 26). When a detainee speaks with police, s. 10(b) augments the broader right to silence, protecting one’s interest in guarding against involuntary self-incrimination. In other circumstances, a detainee’s liberty interests will be at stake. Speaking with counsel can inform an individual as to how they might go about regaining their liberty, whether through the ss. 9-10 Charter limits placed on police power to detain citizens, or by obtaining reasonable bail under s. 11(e). These two interests – guarding against involuntary self-incrimination and regaining one’s liberty – are the canonical interests protected by s. 10(b) of the Charter, reiterated by the Supreme Court of Canada most recently in R v Taylor, 2014 SCC 50 (at paras 21-22).

Rover: New Developments Under Section 10(b)

In 2018, a broader conception of the interests protected by s. 10(b) emerged at the ONCA. In R v Rover, 2018 ONCA 745 [Rover], Doherty J.A. held that “[t]he right to counsel is a lifeline for detained persons” that empowers one to navigate police procedures and provides a sense of psychological security that the detainee is not completely at the mercy of the state (Rover, para 45). In Justice Doherty’s view, the right to counsel should also therefore be understood as safeguarding one’s security of the person under s. 7 of the Charter. Consequently, the “significant psychological pressure” exerted upon an individual who is denied access to counsel while held in police custody should also be considered as an impact on their s. 10(b)-protected interests (Rover, para 46). This expansive conception of the interests protected by s. 10(b) rapidly gained traction, as Rover has been applied in a litany of ONCA decisions and the appellate courts of both Alberta and Québec.

Justice Doherty’s reasoning in Rover materially altered the  analysis under s. 24(2) of the Charter in cases where a breach of the right to counsel is made out. Under the second line of inquiry in R v Grant, 2009 SCC 32 [Grant], the potential scope of impact on the Charter‑protected interests of the accused were widened. Rover heightened the possibility that, even where a breach of s. 10(b) does not lead to self-incrimination or delay in regaining one’s liberty, failure to facilitate access to counsel may nonetheless permit a court to exclude crucial evidence under s. 24(2). This is precisely the scenario that would play out in Whittaker.

The Facts in Whittaker

On the evening of July 22, 2016, Toronto police were called to investigate a robbery at the corner of Queen Street West and Dunn Avenue. The victim told police that two men had confronted him outside the LCBO. One of the men pressed a shoulder bag containing a hard object up against the victim; he stated that the bag contained a gun and repeatedly threatened to use it. One of the men struck the victim before stealing his wallet and necklace.

The victim subsequently provided police with a description of the man carrying the shoulder bag, and LCBO staff confirmed that an individual matching this description had entered the store on three separate occasions the night of the robbery. Detective Constable Balet, the officer who interviewed the victim, reviewed the LCBO security footage and identified the suspect.

On the evening of July 23, Officer Balet attended a briefing on an unrelated investigation conducting surveillance near the LCBO. Balet described the robbery and the suspect to the officers present. Shortly before 11 PM, one of those officers identified a man whom he believed matched Officer Balet’s description and tackled him to the ground, south of Queen Street West. The suspect, Dwight Whittaker, was arrested and searched. Inside Whittaker’s shoulder bag, police discovered a loaded 12-gauge sawed-off shotgun with the serial number removed.

Another officer, Detective Constable Alias, advised Whittaker of his right to counsel immediately upon arrest and again after police discovered the shotgun. Whittaker indicated that he wished to speak with a lawyer.  At the police station, an officer once again advised Whittaker of his right to counsel, at which point Whittaker only mentioned something about calling sureties. Whittaker was subsequently strip searched, placed in a cell, and held overnight. At no point did police take steps to facilitate access to counsel, nor did they inform Whittaker when he could expect to speak with a lawyer. When Whittaker was brought to court for a bail hearing the following morning, he still had not been given the opportunity to contact counsel.

Procedural History

Ontario Superior Court of Justice

Whittaker was charged with several offences, including robbery with a firearm and possession of a loaded restricted firearm. At trial, Whittaker sought to exclude the shotgun from evidence, asserting several breaches of his Charter rights. Byrne J., the trial judge, agreed with Whittaker on one point: police had breached his rights under s. 10(b) by failing to facilitate his request to speak with counsel. In his testimony, Officer Alias could provide no explanation as to why he failed to provide Whittaker with an opportunity to contact a lawyer.

The trial judge applied the test in Grant, considering whether admitting the firearms evidence would bring the administration of justice into disrepute, having regard to:

• (1) the seriousness of the Charter‑infringing state conduct;
• (2) the impact of the breach on the Charter‑protected interests of the accused; and
• (3) society’s interest in adjudicating the case on its merits (Grant, para 71).

In her view, the police misconduct was less serious in light of the high-risk takedown the police had executed and Whittaker’s confusing comment regarding sureties. Byrne J. characterized the police misconduct as an “honest mistake”, falling on the lower end of the seriousness spectrum (Whittaker, para 40). Further, the trial judge held that the impact of this breach on Whittaker’s s. 10(b)-protected interests was attenuated insofar as there was no causal connection between the breach and the evidence. In short, speaking with counsel would not have changed the fact that police had already discovered the shotgun in Whittaker’s shoulder bag.

Finally, Byrne J. considered that the shotgun evidence was both highly reliable and central to prosecuting multiple serious firearms offences. Consequently, she admitted the evidence and a jury found the accused guilty on all counts. Whittaker subsequently appealed his convictions to the ONCA.

Court of Appeal for Ontario

Writing for a unanimous panel of the ONCA, George J.A. held that the trial judge erred in assessing the first two Grant factors.

In considering the seriousness of the police misconduct, George J.A. rejected the notion that the police’s failure to implement Whittaker’s right to counsel took place in high-risk circumstances. Rather, by the time Whittaker had been arrested and informed of his right to counsel, all immediate danger had abated; in fact, the accused was handcuffed and sitting on a bench. Further, George J.A. held that there was no evidence that Whittaker’s comments regarding sureties confused police. On the contrary, Whittaker’s desire to speak with a lawyer upon arrest was clear and unequivocal. In his view, the police misconduct was “unquestionably the result of extreme carelessness” and could not be characterized as anything but serious (Whittaker, para 40).

Turning to the impact on Whittaker’s s. 10(b)-protected interests, George J.A. held that the trial judge erred in focusing solely on Whittaker’s interest in guarding against involuntary self-incrimination. Although the shotgun would have been discovered in any event, there were other s. 10(b)-protected interests that the trial judge failed to consider. Specifically, George J.A. focused on the psychological value of access to counsel. Citing the line of authority beginning with Rover, George J.A. held that Whittaker was “deprived of the potential benefit of having information from counsel on what was going to happen, and what could be done to obtain release.” (Whittaker, para 53). George J.A. concluded that the impact of the breach on Whittaker’s s. 10(b)-protected interests was significant.

In light of his holding that the first and second lines of inquiry pointed strongly towards exclusion, George J.A. determined that these factors could not be outweighed by society’s interest in prosecuting serious firearms offences on their merits. Rather, admitting the shotgun into evidence would bring the administration of justice into disrepute insofar as it would appear to validate the police’s decision to deny Whittaker his right to counsel altogether. Accordingly, George J.A. excluded the evidence and entered acquittals on all counts.

Taking a Hard Line on the Lifeline

The decision in Whittaker provides a stark example of how Rover has transformed the analytical landscape under s. 24(2) when courts are confronted with a breach of s. 10(b).

Although George J.A. states that Whittaker was “deprived of the potential benefit” of hearing from counsel on what could be done to regain his liberty, this can hardly be considered an impact. There is nothing on the record to indicate that Whittaker, who had just been arrested while carrying a loaded sawed-off shotgun, could have realistically expected to regain his liberty any sooner. George J.A. seems to implicitly acknowledge this, later qualifying the extent of the impact in stating that police had denied Whittaker the “psychological benefit of speaking to counsel to understand his rights” (Whittaker, para 56). In other words, the sole impact on Whittaker’s Charter-protected interests was that described in Rover—the “significant psychological pressure” exerted upon a detainee denied access to their lifeline. It was this psychological impact which, when combined with the seriousness of the police misconduct in denying access to counsel, sufficed to justify excluding the evidence.

In reaching this outcome, Whittaker reinforces the notion that extended delays in contacting counsel will generally have an extensive impact on a detainee’s s. 10(b)-protected interests. Nonetheless, this approach does not preclude police from taking steps to mitigate the psychological impact of delay. As Trotter J.A. held in R v Pileggi, 2021 ONCA 4 (at para 124), if police take steps to put the detainee in touch with counsel and apprise them of those efforts, the impact on one’s s. 10(b)-protected interests will be lessened. Rather, it is where police take no steps whatsoever and access to counsel is denied outright that the impact is deepest. In these situations, Whittaker sends a clear message that the Ontario courts will not reward police carelessness—no matter how serious the offence.

Edited by Farah Abdel Haleem