A Case about Complete Denial of Access to Counsel: R v Taylor
In R v Taylor, 2014 SCC 50, Abella J. declared that section 10(b) Canadian Charter of Rights and Freedoms had been violated, which resulted in Jamie Kenneth Taylor’s “inability to exercise a meaningful and informed choice as to whether he should or should not consent to the taking of blood samples at the hospital” (at para 19). As such, the Supreme Court of Canada upheld the Court of Appeal’s decision to exclude the blood samples and acquit Mr. Taylor of all charges (Taylor, at para 19).
By ruling in favour of the preservation of Mr. Taylor’s Charter rights, the Supreme Court of Canada made two interesting and important assertions about section 10(b) of the Charter and the boundaries of police powers.
After attending a social event on April 13, 2008, Mr. Taylor was driving with four passengers. Shortly before 1:25 am, Mr. Taylor lost control of the truck, hit a street lamp, and rolled over numerous times. Three of the passengers were injured.
Constable Douglas MacGillivray arrived at the scene of the accident at 1:31 am. Cst. MacGillivray noted that during his discussion with Mr. Taylor, Mr. Taylor had displayed signs of impairment. Cst. MacGillivray arrested Mr. Taylor at 1:41 am.
At 1:43 am, Cst. MacGillivray informed Mr. Taylor of his Charter rights, and Mr. Taylor requested counsel.
Mr. Taylor waited in the hospital hallway until just after 3:00 am, when he was then moved to a bed in a curtained off area. A nurse took five blood samples from Mr. Taylor between 3:05 am and 3:12 am. Cst. MacGillivray issued a blood demand upon learning that Mr. Taylor could not be brought to the station for a breath sample. At 4:53 am, a doctor took another set of blood samples for Cst. MacGillivray.
On April 14, Cst. MacGillivray applied for a warrant to seize the first set of blood samples. The warrant was issued on April 17, and Cst. MacGillivray secured the samples on April 18. The analysis of both sets of samples concluded that at the time of the accident, Mr. Taylor’s blood alcohol level exceeded the level that was lawfully permitted.
At no point during Mr. Taylor’s time at the hospital did Cst. MacGillivray provide Mr. Taylor with an opportunity to consult his lawyer. At trial, Cst. MacGillivray explained that he did not think of giving Mr. Taylor access to a phone at the hospital, and that it was a “rookie mistake” (Taylor, at para 15). He further admitted that he should have – and could have – given Mr. Taylor an opportunity to speak with his lawyer, particularly before the first blood samples were taken (Taylor, at paras 15 and 29).
Section 10(b) of the Charter
Section 10 states, “Everyone has the right on arrest or detention…(b) to retain and instruct counsel without delay and to be informed of that right.” The purpose of section 10(b) is “to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights” (R v Manninen,  1 SCR 1233, at 1242-43).
As stated by the court in Manninen, section 10(b) imposes two crucial duties on the police:
First, the police must provide the detainee with a reasonable opportunity to exercise the right to retain and instruct counsel without delay…[Second, it] imposes on the police the duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel (at 1241-42).
Fair Treatment During the Criminal Process
Abella J. stressed the importance of providing an accused with fair treatment during the criminal process.
Upon being detained by the authorities, an accused is stripped of their liberty and is subject to complete control by the state. Under this control, the accused “cannot exercise his right to counsel unless the police give him a reasonable opportunity to do so…” (Brownridge v R,  SCR 926, at 952-53), placing the accused “in a position of disadvantage relative to the state” (R v Bartle,  3 SCR 173, at 191). The right to counsel without delay is made available to ensure that the accused is treated fairly in the criminal process and holds some power over the state (Bartle, at 191). It then follows that until access to counsel has been provided, the police are under an obligation to refrain from procuring or eliciting evidence from the accused (R v Ross,  1 SCR 3, at 12). However, if the state does attempt to procure evidence before the accused had been given access to counsel, Abella J. strongly held that “the police should not be able to circumvent the duty to implement an arrested individual’s s. 10(b) rights by attempting to cure any gained evidence with a warrant authorizing its seizure” (Taylor, at para 36).
In the present case, Cst. MacGillivray forgot to provide Mr. Taylor with access to a lawyer, unlawfully procured evidence, and attempted to bypass the Charter by acquiring a warrant for the evidence.
Abella J.’s pronouncement regarding the necessity of fair treatment is of particular importance as it illustrated the catastrophic impact that unlawful police power can have on an accused. By not providing Mr. Taylor with fair treatment during the criminal process, Mr. Taylor was subjected to the absolute control of the police, and was unable to formulate a meaningful and informed choice as to whether or not he should consent to “routine medical treatment that had the potential to create – and in fact ultimately did create – incriminating evidence that would be used against him at trial” (Taylor, at para 41). Therefore, Mr. Taylor was forced to choose between his medical interests and his constitutional rights.
Abella J. ruled that the police have a constitutional obligation and duty to facilitate the right of the accused to retain and instruct counsel “without delay…” (Bartle, at 191) and “immediately upon detention…” (R v Suberu,  2 SCR 460, at paras 41-42) at “the first reasonably available opportunity…” (Taylor, at para 24, citing Manninen, at 1241-42), except in “urgent and dangerous circumstances…” (Bartle, at 192, citing Manninen, at 1241-42).
In the present case, Abella J. found that the police failed to provide Mr. Taylor with access to counsel immediately and without delay upon his arrest since “it was 20 to 30 minutes before the hospital took any blood from Mr. Taylor, more than enough time for the police to make inquiries as to whether a phone was available or a phone call medically feasible” (Taylor, at para 31). Additionally, the circumstances were neither urgent nor dangerous (Taylor, at para 31). As found by the trial judge, the paramedic “did not feel there was anything wrong with the Accused, but took Mr. Taylor to the hospital only out of an abundance of caution, and in accordance with normal practice” (Taylor, at para 31).
Abella J. further argued that the “[c]onstitutional 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 council into access to counsel” (Taylor, at para 33). At trial, Cst. MacGillivray did not provide the court with any practical obstacles that would have impeded Mr. Taylor’s access to counsel, such as a medical emergency, the absence of a phone, or insufficient privacy (Taylor, at para 29). According to Abella J., as a result of the unreasonable failure of the police in facilitating Mr. Taylor with access to counsel, “this is a case not so much about delay in facilitating access, but about its complete denial” (Taylor, at para 35).
Although Abella J. did not issue an exact timeframe for when a police officer must provide the accused with an opportunity to consult with counsel, Abella J. narrowed the guidelines for what a reasonable timeframe could be within the meaning of section 10(b) of the Charter. This is important as it reaffirmed what had already been outlined in previous jurisprudence, thus setting precedent for future cases. If there is no urgent or dangerous circumstance (such as a medical emergency), there is access to a phone (such as at a hospital), and privacy can be provided, then it follows that access to counsel must be provided at this moment (Taylor, at para 29).