R. v. Whitford

115 C.C.C. (3d) 52



After RTC on arres accused asked to phone a lawyer, accused refused to speak to police until spoke to legal aid, after thasst request told police no sexual encounter with complainant. Different story at trial. Crown sought to impeach accused's evidence at trial using first statement



Per Berger at QL p. 6. accused clearly asserted right to counsel .. took opportunity to contact law office of Orville Morrow, ... p. 7 readily surmise not received meaningful legal advice when first contacted... still wished to pursue his s. 10(b) rights "It does not follow that because an accused has contacted a law office, he has exhausted his s. 10(b) rights" at p. 7 "Here the Appellant invoked the right to counsel and was reasonably diligent in exercising it. We ought not to adopt a rule that would artificially limit reasonable opportunity to exercise the s. 10(b) Charter right to a single phone call to a law office. An accused who wishes to make two or three successive phone calls in the exercise and pursuit of his right to retain and instruct counsel must be permitted to do so unfettered by police questioning. ... The relevant inquiry after an initial phone call to a law office is not simply whether the accused did nor did not speak to a lawyer... After all, the lawyer might tell the accused that he is too busy, too expensive, or simply not interested in acting for and advising the accused. He might even recommend that the accused contact Legal Aid. An accused is entitled to a reasonable opportunity to have meaningful contact with and advice from counsel. I decline to approve police questioning after completion of a first telephone call to a law office when the accused has clearly said that he does not wish to speak to the police until he has also spoken with Legal Aid. ,... There is no suggestion of dilatory tactics on the part of the Appellant in this case. There is no suggestion of delay for the purpose of frustrating the investigation.