Right to counsel does not require police to confirm that accused actually spoke with counsel when provided with opportunity to do so

R. v. Beauregard
2016 ABCA 37
Alberta Court of Appeal

Criminal law --- Charter of Rights and Freedoms — Arrest or detention [s. 10] — Right to counsel [s. 10(b)] — Right to retain and instruct counsel without delay

Four masked and armed men robbed truck stop — Co-accused was placed in telephone room to contact lawyer, but instead called his mom — Only issue at trial was identity and Crown's case depended on statements each made to police — Voir dire was held, trial judge concluded that there was breach of s. 10(b) of Canadian Charter of Rights and Freedoms as officer had positive duty to confirm accused connected with lawyer and excluded co-accused statement — Crown appealed — Appeal allowed; new trial ordered — There was no breach of s. 10(b) of Charter — There was no breach of implementational duty because there was no obligation on police to positively ask if detained person had been successful in contacting counsel — Co-accused was given opportunity to contact counsel and when asked if he was finished, he responded in affirmative — It was not unreasonable for officer to assume that co-accused meant that he had been successful in contacting counsel — This did not concern waiver of rights as there was no objective basis on which police could be expected to take accused's actions and responses as waiver of right to contact counsel.