R v Patel – Unreported – May 14, 2018 – Toronto (OCJ – Downes):

The question in this case is whether the informational component of 10(b) also requires the police to specifically ask a detainee who asserts a desire to speak to counsel whether they wish to speak to a lawyer of their choosing or to duty counsel. There is no doubt that in the face of any indication by a detainee that he or she wants to speak to a specific lawyer, or indeed to an individual who can put them in touch with a lawyer, or some indication that they have their own counsel, then the police must be reasonably diligent in following up on these assertions by the detainee.

Absent any indication in all of the circumstances either that the detainee does not understand their right, or that they have a particular lawyer or person in mind, does section 10(b) as currently understood, impose such a further constitutional obligation on the police. In my view the weight of authority says that it does not. The 10(b) jurisprudence in this area consistently imposes additional obligations on the police only when they are triggered by something in the record that suggests either the detainee does not understand his or her rights, or wishes to call a particular lawyer or individual, see Bartle, Willier, R. v. Manninen, [1987] 1 S.C.R. 1233, R. v. Badgerow, [2008] O.J. No. 3416, R.V. Ross [1989] 1 S.C.R. 3, R. v. Tremblay, [1987] 2 S.C.R. 435, R. v. Top, [1989] A.J. No. 351 (C.A.)

Even those cases which give a broad reading to the 10(b) obligations such as R. v. Della-Vedova, [2018] O.J. No 1596 (C.J.) as referred to by both parties, are premised on evidence arising either from the accused or from the officers as to something the accused said at the time. The record in this case is bereft of anything along those lines. The officer read the 10(b) Caution. He had told Mr. Patel that he had the right to telephone any lawyer he wished and that he also had the right to free advice from a legal aid lawyer. He said he understood. Absent a reason to do so, the police were under no constitutional duty to probe the extent, or nature, of Mr. Patel’s understanding. They were entitled to take him at his word.
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Invariably if the detainee has a particular lawyer in mind, they will say so.
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The defence in this case says that the question to Mr. Patel, “Do you want to call a lawyer now?” was an ambiguous question which required Sergeant Cohen to clarify Mr. Patel’s response. I disagree. While as I say, many officers will decide to follow up with such a question, I do not consider the binding authorities to require that they do so, particularly here where there is absolutely no evidence that Mr. Patel wanted to speak to a particular individual or did not understand his rights. In my view, the police were in full compliance with section 10(b). Mr. Patel has not discharged his onus of establishing any Charter violation and the Charter application is dismissed.