Child Pornography and Distribution Charges Quashed based on a Breach of a Defendant’s Rights to Counsel

Published On: Jan 23,2020

Breach of a Right to a Lawyer leading to an exclusion of evidence
Breach of a Right to a Lawyer leading to an exclusion of evidence

The Ontario Court of Appeal in Regina v. P.J.M, 2020 ONCA 2, quashed possession and distribution of child pornography convictions under ss. 163.1(4)and 163.1(3) of the Criminal Code, R.S.C. 1985, c. C-46.  The convictions were quashed based based on the exclusion of two (2) statements made that were extracted by the police in violation of the defendant’s rights to counsel.   The first statement was made by the defendant while he was in his home during the execution of a search warrant for the address to seize electronic storage devices, computers, and other devices capable of accessing the internet, while the second statement was made at the police station.  The defendant alleged that there was a breach of his ss.7 and 10(b) Charter rights with respect to both statements, and that the statements should be excluded under s.24(2).


The trial judge found that the statements were admissible.


Section 10(b) of the Charter provides that:

Everyone has the right on arrest or detention:

(b) to retain and instruct counsel without delay and to be informed of that right.


The s. 10(b) right attaches immediately on detention, subject to concerns for officer safety. It creates the right to retain and instruct counsel without delay and the right to be informed of that right, in order to effectively exercise it. A detained person who chooses to exercise their right must be given a reasonable opportunity to do so, and police must refrain from eliciting incriminating evidence from the detained person until he or she has had a reasonable opportunity to consult with counsel: see R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 41; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 38, 42; R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at paras. 20-26.


 In Suberu, at para. 40, the court explained:


[T]he purpose of s. 10(b) is to ensure that individuals know of their right to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion, which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination.


An individual’s s. 10(b) right is thus intimately connected to their control over their own person. While an individual confronted by the authority of the state ordinarily has the option to simply walk away, this choice can be removed by physical or psychological compulsion, resulting in detention. Once detained, however, “the individual’s choice whether to speak to the authorities remains, and is protected by the s. 10 informational requirements and the s. 7 right to silence”: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 19-23.


The Supreme Court of Canada expanded on this interaction between ss. 7, 9, and 10 of the Charter, at para. 22 of Grant:


“Detention” also identifies the point at which rights subsidiary to detention, such as the right to counsel, are triggered. These rights are engaged by the vulnerable position of the person who has been taken into the effective control of the state authorities. They are principally concerned with addressing the imbalance of power between the state and the person under its control. More specifically, they are designed to ensure that the person whose liberty has been curtailed retains an informed and effective choice whether to speak to state authorities, consistent with the overarching principle against self-incrimination. They also ensure that the person who is under the control of the state be afforded the opportunity to seek legal advice in order to assist in regaining his or her liberty. [Emphasis in original.]

The key task, therefore, in determining whether an individual’s s. 10(b) rights have been triggered, is to identify whether a detention has occurred.

Detention can by physical or psychological. Psychological detention occurs where a person has a legal obligation to comply with a police direction, or where “the police conduct would cause a reasonable person to conclude that he or she was not free to go and had to comply with the police direction or demand”: Grant, at paras. 30-31. In determining whether someone has been psychologically detained, the inquiry is an objective one, having regard to how a reasonable person would perceive the state conduct in the circumstances. An objective inquiry recognizes the need for police themselves to appreciate when detention occurs, so they can fulfill their Charter obligations to detained persons: Grant, at paras. 31-32; Suberu, at para. 22.


The Supreme Court provided a helpful summary of the analysis of detention, at para. 44 of Grant:  In summary, we conclude as follows:

1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.


2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:


(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.


(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.


In allowing the accused’s appeal and ordering a new trial, the court held that the trial judge erred in finding that the accused was not detained when he made the first statement.  The court also held as follows: the accused’s right to counsel under s.10(b) of the Charter was breached in relation to the first statement; the second statement was “obtained in a manner” that breached the accused’s Charter rights; and both statements should be excluded pursuant to s.24(2) of the Charter.


If you have been charged with a serious criminal offence such as the one in this case, call Mr. J. S. Patel, Barrister at 403-585-1960 to schedule a consultation.