Reasons for Judgment on Personal s. 10(b) Application

Henschel J.

A. OvERView

1Daniil Matin is charged with first degree murder for having caused the death of Marina Nagolia, his former intimate partner, between August 24 and 25, 2023. Mr. Matin returned from a trip to Cuba with Marina Nagolia and her daughter, A.N., in the early morning hours of August 24, 2023.

2On August 25, 2023, the police received a call from the Applicant’s brother, Sohail Shahidnia, who reported to police that he feared his brother was attempting to commit suicide. York Regional Police officers and Emergency Medical Services (EMS) were dispatched to Marina Nagolia’s home at 382 Taylor Mills Drive South, Richmond Hill.

3When EMS and police arrived at 382 Taylor Mills Drive South, Mr. Matin was inside the home. Police asked him to come outside and he complied. Mr. Matin had visible injuries on both his temples and his neck.

4Police officers entered the home and found a bloody knife in the front entrance on the floor. They located Ms. Nagolia, deceased in her bedroom. She was laying on her back, wrapped in a blanket. She was obviously dead and had serious injuries to her head, neck, and hands. A broken knife was in her right hand.

5Mr. Matin was arrested for murder and transported by ambulance to the hospital. En route, PC Kogan read Mr. Matin his rights to counsel. Mr Matin said he did not have a lawyer. At the hospital, Mr. Matin asked to speak to duty counsel.

6Mr. Matin spoke privately with duty counsel for two to three minutes between approximately 8:42 p.m. and 8:45 p.m. At the time of the conversation, Mr. Matin was alone in a hospital bed in a private room. He spoke to duty counsel using a cell phone provided by DC Leong. The phone was on speaker phone next to Mr. Matin’s bed.

7Mr. Matin recalls few details of the call. However, he said that on two occasions when he asked duty counsel a question, the duty counsel simply told him he needed to get a lawyer.

8Mr. Melady, the duty counsel who spoke to Mr. Matin, does not remember his call with Mr. Matin. Relying on his notes, recorded on a duty counsel log form, he said that the police initially left a voicemail at 8:29 p.m. on August 25, 2023. He returned the call at 8:40 p.m., began speaking with Mr. Matin at 8:41 p.m., and the call ended at 8:45 p.m.

9DC Leong testified that after the call, Mr. Matin gave him a thumbs up, and when he entered the room, Mr. Matin told him the call was good. Mr. Matin made no complaint about the call and did not request a further opportunity to speak with a lawyer.

10Later that evening, forensic identification officers took fingerprints, photographs, and external swabs of Mr. Matin’s hands.

11Mr. Matin alleges that his right to counsel under s. 10(b) of the Canadian Charter of Rights & Freedoms¹ was violated.

Position of the Parties

12The Applicant alleged that the brief call he had with duty counsel on August 25, 2023 fell so far short of the “baseline standard for s. 10(b) assistance” that his s. 10(b) rights were breached.

13In Ontario, the R. v. Brydges² duty counsel system is exclusively provided by a private entity, Foundever, contracted by Legal Aid Ontario (LAO) to provide duty counsel services. The Applicant, relying on Eldridge v. British Columbia³, submitted that even though Foundever is a private entity, the deficient duty counsel system and advice attracts Charter scrutiny. The Applicant submitted that because the state has chosen to provide a benefit, Brydges duty counsel services, it must do so in a Charter-compliant manner. The Applicant submitted that the duty counsel system operated by Foundever is manifestly deficient and lacking in oversight. The Applicant further submitted that duty counsel’s failure to provide adequate advice violated Mr. Matin’s personal s. 10(b) right to counsel.

14The Applicant submitted that the exchange between Mr. Matin and Brydges duty counsel would not have taken place “in the form and manner in which it did but for the intervention of the state or its agents” and as such, the quality of the duty counsel advice is subject to Charter scrutiny and must be Charter compliant.⁴ The Applicant submitted that because Foundever and its lawyers implement a specific government program, the Brydges duty counsel hotline, their work is subject to review under the Charter, albeit only in respect of that program delivery.

15The Applicant submitted that prior decisions that held that duty counsel is not a state agent and that the advice of duty counsel is not subject to Charter scrutiny, including Beierl⁵ and Pea⁶, were decided per incuriam. He submits the decisions failed to consider and apply Eldridge, and as a result, they are not binding on this Court.⁷

16During oral submissions, the Applicant submitted that even if the duty counsel system were set up perfectly, duty counsel’s failure to provide meaningful/adequate advice would violate a detainee’s s. 10(b) rights. The Applicant submitted that negligence by duty counsel cannot be shielded from Charter scrutiny. The Applicant submitted that post R. v. Rover⁸ and R. v. Dussault⁹, “rights-holders’ constitutional entitlements can only be met by ‘adequate’ assistance being provided to those who do not waive that entitlement.”

17The Applicant also alleged that his s. 10(b) rights were violated because the police failed to afford him a second opportunity to consult with counsel when there was a change in circumstances. The Applicant submitted that he was entitled to a second conversation with counsel when officers arrived to seize his clothing, take close-up photos of his injuries, and swabs from his hands. He alleged that the police failure to provide him with a second opportunity to consult counsel breached his s. 10(b) right to counsel.

18The Applicant did not seek a remedy under s. 24 of the Charter at the initial stage because a finding that Mr. Matin’s s. 10(b) rights were breached was being addressed as a threshold issue, necessary for a broader assessment of the constitutionality of the Ontario Duty Counsel System. Ultimately, if I were to have found that there was a breach of Mr. Matin’s s. 10(b) rights, Mr. Matin intended to seek a stay of proceedings under s. 24(1) of the Charter for personal and systemic Charter breaches, and abuse.

19The Crown submitted that:

i.) Duty Counsel are not agents of the state and as such, the Charter is not implicated.

ii.) The quality of legal advice received by the Applicant is not subject to scrutiny under s. 10(b) of the Charter.

iii.) The circumstances of the case did not warrant concern from the police with respect to the sufficiency of Mr. Matin’s opportunity to speak to counsel and the presumption of sufficiency applied.

iv.) A second consultation with a lawyer was not required in the circumstances.

20On January 9, 2026, I gave a bottom-line ruling finding there was no violation of Mr. Matin’s section 10(b) rights. I held that:

i.) The police fulfilled their informational and implementational duties under s. 10(b) of the Charter.

ii.) The circumstances of the case did not require the police to take further steps to implement Mr. Matin’s 10(b) rights following the call with duty counsel.

iii.) Section 10(b) of the Charter does not guarantee the quality of legal advice received by a detainee.

iv.) Mr. Melady, in providing advice to Mr. Matin, was not an agent of the state and as such, the Charter was not implicated in respect of the advice he gave because he was not a state actor.

v.) After the call with duty counsel, the police routine investigative procedures, including seizure of Mr. Matin’s clothing incident to arrest, taking fingerprints and photographs, and taking swabs from Mr. Matin’s hands, did not require the police to provide Mr. Matin with a second opportunity to consult counsel.

21These are my reasons for finding that Mr. Matin’s right to counsel pursuant to s. 10(b) of the Charter was not violated.

B. Summary of the Evidence on Voir Dire

Evidence of Police and EMS

22PC Kogan testified on the voir dire. He was a credible and reliable witness. He was one of the first officers on scene at 382 Taylor Mills Drive South on August 25, 2023, arriving at approximately 6:45 p.m. When he approached the front door of the house, Mr. Matin was inside the home and PC Kogan asked him to come outside. Mr. Matin complied. He saw that Mr. Matin had an injury to his throat under his Adam’s apple. P.C. Kogan asked Mr. Matin if he did it to himself, and he said he did.

23Mr. Matin sat on the front porch and EMS personnel began to look at his wounds. Mr. Matin also told EMS his injuries were self-inflicted.

24PC Kogan testified that Mr. Matin was speaking quietly and appeared to be “with it”. Mr. Matin complied with his requests and those of EMS. PC Kogan said he could understand him.

25PC Kogan asked Mr. Matin if there was anyone in the house and he replied that someone was in the basement.

26PC Kogan entered the home to look for any other occupants. He saw a knife near the front door with blood on it. He entered a bedroom where he saw feet protruding from a blanket on the floor beside the bed. When he removed the blankets, he saw a woman’s body. She was lying on her back, naked from the waist down. Her body was stiff and cold. There was a knife in one hand. The blade was broken off.

27PC Kogan formed reasonable grounds to believe that Mr. Matin was responsible for the woman’s death.

28He exited the home and escorted Mr. Matin to the ambulance with paramedic, Chad Gallant. Mr. Matin was placed on a stretcher and moved into the back of the ambulance. PC Kogan and Mr. Gallant entered the ambulance with Mr. Matin.

29I am satisfied that at 6:51 p.m., while inside the ambulance, PC Kogan advised Mr. Matin he was under arrest for murder. He read him the rights to counsel from his electronic notebook stating:

I am arresting you for murder. It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a legal aid lawyer. If you are charged with an offence you may apply to the Ontario Legal Aid Plan for assistance. The telephone number is -800-265-0451. It is a number that will put you in contact with a legal aid duty counsel lawyer for free legal advice right now. Do you understand?

30When PC Kogan asked Mr. Matin “Do you understand?” Mr. Matin replied “I hear you, yes”.

31I find as a fact that PC Kogan also asked Mr. Matin, “Do you want to call a lawyer now?” and, in response, Mr. Matin said he did not have a lawyer.

32Mr. Hechter challenged PC Kogan regarding whether he asked Mr. Matin if he wanted to call a lawyer. PC Kogan said he definitely did. He said he asked the question, and it prompted Mr. Matin to tell him that he did not have a lawyer. During cross-examination, PC Kogan agreed he did not mention asking Mr. Matin “Do you want to call a lawyer now?” during his preliminary hearing evidence. He agreed that he did not make a note of asking the question in his notes. However, he testified that while they were in the ambulance he definitely asked Mr. Matin if he wanted to speak to a lawyer, and Mr. Matin definitely said he did not have a lawyer. I accept this evidence.

33During re-examination, PC Kogan explained that in the standard rights to counsel wording after the question “Do you understand?” the script has the follow-up question “Do you want to call a lawyer now?” PC Kogan read Mr. Matin the rights to counsel from his electronic notebook. I am satisfied that he also read the question, “Do you want to call a lawyer now?” Although PC Kogan did not make a notation of asking the question in his notebook at the time, he did make a note at the time that Mr. Matin told him that he did not have a lawyer. It makes sense that the question “Do you want to call a lawyer now?” is what prompted Mr. Matin to say he did not have a lawyer. I am satisfied that at the preliminary hearing and initially in his evidence at trial, PC Kogan simply overlooked the follow-up question in the “script”, “Do you want to call a lawyer now?”

34PC Kogan intended to read Mr. Matin the caution immediately after reading the rights to counsel, but paused so the paramedics could provide care. The paramedics asked Mr. Matin questions about his injuries and were providing care to him.

35I accept the evidence of PC Kogan and Chad Gallant, one of the attending paramedics, that the paramedics removed Mr. Matin’s clothing for medical reasons. After they removed the clothing to check for other injuries, they gave PC Kogan Mr. Matin’s black belt, blue jeans, red shorts, black socks, and a brown strap watch. PC Kogan did not ask them to remove the clothing.

36I accept PC Kogan’s evidence that at 7:06 p.m. he read Mr. Matin the police caution from his electronic notebook. He told Mr. Matin:

You are charged with murder. You are not obliged to say anything unless you wish to do so. Whatever you say may be given in evidence. Do you understand?

37Mr. Matin replied “Yes”.

38PC Kogan was satisfied that Mr. Matin understood the rights to counsel and caution. PC Kogan testified that he did not have any concerns that Mr. Matin did not understand. He said Mr. Matin’s responses were appropriate to the questions he was asked. In re-examination, he emphasized that when he read Mr. Matin the rights to counsel and received his responses he had Mr. Matin’s attention and Mr. Matin had his attention.

39At some point, while in the ambulance, PC Kogan received a call from a supervisor looking for a child. He asked Mr. Matin about the child, and Mr. Matin told him that she was with her father.

40Paramedic Chad Gallant also testified on the voir dire. He provided care to Mr. Matin at 382 Taylor Mills Drive South and transported him to Sunnybrook hospital in Toronto. He was with Mr. Matin for approximately fifty minutes. Mr. Gallant completed an ambulance report regarding his interaction with Mr. Matin shortly after the call. He was a credible and reliable witness. I accept his evidence and description of the events.

41Mr. Gallant arrived at 382 Taylor Mills Drive South at 6:45 p.m. and treated Mr. Matin. Mr. Matin was outside the house sitting on the steps when he first interacted with him.

42Mr. Gallant described Mr. Matin’s injuries. He saw he had bilateral injuries to each temple and an injury in the front middle of his neck. Mr. Matin told him he tried to stab himself under his chin.

43Mr. Gallant walked Mr. Matin from the front steps to the ambulance. Initially, Mr. Gallant said Mr. Matin walked without assistance. Mr. Hechter played a police in-car camera recording that captured Mr. Matin walking with Mr. Gallant and PC Kogan to the ambulance. It showed that PC Kogan and Mr. Gallant had Mr. Matin by the arm as they escorted him to the stretcher near the ambulance. When shown the video, Mr. Gallant agreed he was walking with Mr. Matin holding his arm. He said he was holding his arm as a precaution in case anything were to happen. The discrepancy between Mr. Matin walking entirely unassisted and walking with Mr. Gallant and PC Kogan holding his arm was a minor one that does not impact the general reliability of his evidence.

44Mr. Gallant explained that Mr. Matin was conscious, alert, and seemed calm. He showed no sign of emotional distress. Mr. Gallant said during his dealings with Mr. Matin, Mr. Matin was responsive to questions and complied with requests. Mr. Gallant was able to communicate with him and could hear him clearly when he spoke with him.

45Mr. Gallant entered the back of the ambulance with Mr. Matin. He confirmed that a police officer was also present in the back of the ambulance. Mr. Gallant said his main focus was to care for Mr. Matin’s injuries and to stop any further harm. He said the injuries to the side of Mr. Matin’s head were not actively bleeding. He said the neck injury was actively bleeding but not immediately life threatening. He asked Mr. Matin if he was in pain and he said he was not.

46While in the ambulance, Mr. Gallant asked Mr. Matin about his medical history. He said he had none. He asked Mr. Matin whether he had consumed any drugs. Mr. Matin reported that he took cocaine around 2:00 p.m. and Percocet around the same time. Mr. Gallant explained that he asked about drugs and alcohol because of Mr. Matin’s calm demeanour despite his injuries.

47Mr. Gallant agreed in cross-examination that Mr. Matin had a high heart rate, something that could be an indicator of anxiety, trauma, or use of drugs.

48Mr. Gallant explained that because Mr. Matin had penetrating trauma to his neck, they transported him to Sunnybrook, a trauma centre. Mr. Gallant said that Mr. Matin’s shirt had blood on it, and he removed Mr. Matin’s clothing as per the usual practice for patients being transferred to a trauma centre. He explained that clothing is removed to ensure that they do not miss any key injuries and to prepare the patient for handoff to medical staff at Sunnybrook.

49When Mr. Gallant asked Mr. Matin how his injury happened, Mr. Matin said he intentionally stabbed himself three times with a serrated kitchen knife. He said he was attempting suicide.

50The ambulance left the scene at 6:58 p.m. and arrived at Sunnybrook hospital at 7:21 p.m. At 7:35 p.m., Mr. Matin was transferred to the trauma team and taken to the trauma room where he was seen by doctors.

51At 7:49 p.m., Mr. Matin was moved to a CT room for a CT scan. A bracelet was removed and handed by hospital staff to PC Kogan. At 8:14 p.m., once the CT scan was complete, Mr. Matin was moved to a private room by PC Kogan and DC Leong.

52I accept PC Kogan’s evidence that at 8:19 p.m., he went into the hospital room and asked Mr. Matin if he had a lawyer he wanted to speak to. Mr. Matin requested duty counsel. PC Kogan said that he did not have any difficulty understanding Mr. Matin.

53Mr. Matin testified that he did not remember PC Kogan speaking to him at the hospital about contacting a lawyer or duty counsel and requesting duty counsel. I accept PC Kogan’s evidence about this interaction with Mr. Matin. It was Mr. Matin’s request to speak with duty counsel that triggered the subsequent steps taken by PC Kogan and DC Leong to contact duty counsel.

54After Mr. Matin told PC Kogan he wanted to speak with duty counsel, PC Kogan briefed DC Leong. DC Leong facilitated Mr. Matin’s contact with duty counsel.

55PC Kogan said Mr. Matin was not handcuffed during his dealings with him. He said he did not put handcuffs on Mr. Matin at any time because he was unsure of the extent of his injuries, and he did not think it was necessary at that time.

56DC Leong also testified on the voir dire. I also found him to be a credible and reliable witness. He arrived at the hospital at 7:41 p.m. to assist the uniformed officers. When he arrived, the uniformed officers were outside the CT room where Mr. Matin was. PC Kogan briefed DC Leong in detail about his observations and dealings with Mr. Matin. He told DC Leong that he had arrested Mr. Matin for murder, and he had given Mr. Matin his rights to counsel.

57At 8:14 p.m., DC Leong was present when PC Kogan moved Mr. Matin from the CT area to the private room. The private room was glass, and DC Leong testified that from outside the room he could see Mr. Matin inside. There was a nurse in the room. DC Leong could not remember if Mr. Matin was handcuffed.

58After Mr. Matin asked to speak to duty counsel, DC Leong and PC Kogan tried to arrange for him to speak with counsel on a landline, but they could not locate a landline to use. As a result, at 8:29 p.m., DC Leong used his police issued cell phone to call duty counsel. His call to the duty counsel number went to a voicemail. He responded to the prompts, and left his name, badge number, and phone number. He provided Mr. Matin’s name, Daniil Matin, and in response to a prompt on the automated message, he indicated that Mr. Matin was arrested for murder. He asked that duty counsel return his call.

59At 8:40 p.m., duty counsel, Mr. C. Melady, called DC Leong back and told him he was duty counsel.

60When Mr. Melady called back, DC Leong testified that he went inside the hospital room and alerted Mr. Matin to the call, saying “Hey, I have the duty on the line for you”. He said he could not remember his precise words but said he would have used words to the effect of, “your call is here, the duty, if you want to talk to duty counsel right now.” He said when he told Mr. Matin he had duty counsel on the line for him and asked him if he wanted to talk, Mr. Matin told him it was difficult to talk and asked for water. DC Leong spoke with the nurse, Yehya, to ask for water. He believed she was outside of the room. She told DC Leong that Mr. Matin could not have water for medical reasons.

61DC Leong returned to the room and told Mr. Matin he could not give him water. He relayed what the nurse said. DC Leong put his cell phone on speaker phone. He confirmed that duty counsel could hear Mr. Matin and that Mr. Matin could hear duty counsel. He said because Mr. Matin told him it was hard to talk he wanted to make sure that they could hear and understand each other. He said they both confirmed they could hear each other and understand each other. After he confirmed they could hear and understand each other, DC Leong left the phone in the room. He told Mr. Matin to talk into the phone, but not to touch it, and to let him know when he was done. DC Leong could not remember exactly where he left the phone. He thought he left it on the bedside table. After making sure no one else was in the room, he left the room and closed the door so Mr. Matin could speak privately with duty counsel.

62DC Leong said he left the hospital room at 8:42 p.m. He made note of the time once he was outside of the room. He said he did not remember where he got the time from, but he also had a personal cell phone with him. He said from outside of the room, he could see Mr. Matin. He wanted to make sure he did not touch the phone and no problems arose. DC Leong said PC Kogan was with him while he waited.

63DC Leong said he could understand and hear Mr. Matin during his dealings with him up to that point.

64DC Leong said as he was observing from outside of the room he saw Mr. Matin give him a “thumbs up”. As a result, he walked inside the room, and Mr. Matin told him that the phone call was over. DC Leong testified that Mr. Matin said the call was good, and he understood him to mean that he was satisfied with his call with duty counsel. DC Leong said he had no difficulty in hearing or understanding Mr. Matin when he said the call was good. Because Mr. Matin said the call was good, he had no concerns about the call.

65D.C. Leong said it was 8:44 p.m. when he re-entered the room. He said Mr. Matin did not express dissatisfaction to him about the call at any point, and Mr. Matin did not ask about talking to a lawyer again.

66D.C. Leong said the length of the call did not concern him. He said in his experience, the length of calls between a lawyer and a detainee is highly variable, ranging as short as a minute or as long as 40 minutes. He said everyone has their own questions, and he did not know what was said.

67DC Leong testified that every time he facilitates contact with counsel, he makes sure an accused is satisfied with the phone call. DC Leong said Mr. Matin did not demonstrate any confusion after the call. When asked about his observations of Mr. Matin, he said Mr. Matin did not say much. He looked depressed. He was awake. He did not have difficulty hearing or understanding him when he spoke.

68DC Leong testified that he never thought Mr. Matin needed another call. He said he did not think he was confused or dissatisfied with the phone call. DC Leong said he left the room and the doctor and nurse returned to the room at 8:45 p.m.

69DC Leong testified that he never attempted to elicit evidence from Mr. Matin or talk to him about the case at any point. I accept this evidence and his evidence regarding his interactions with Mr. Matin when facilitating access to duty counsel.

70In cross-examination, DC Leong agreed that in his notes, he used the term “duty” as a short form for duty counsel and agreed it is the word he uses to describe duty counsel. In re-examination, he said he let Mr. Matin know that duty counsel was on the phone and asked if he wanted to talk to him. He said if Mr. Matin had had any questions about who duty counsel was, he would have answered them.

71In cross-examination, DC Leong said he did not remember if he knew whether Mr. Matin would be going for surgery when he spoke to duty counsel. He said if he knew, he would have told duty counsel.

72DC Leong testified that it was 8:42 p.m. when he left the hospital room, leaving Mr. Matin to speak privately with duty counsel. He could not recall whether Mr. Matin was restrained when he left the room, but he agreed with the suggestion that it would be dangerous to leave him in the hospital room unrestrained.

73Mr. Hechter suggested to DC Leong that after the call he said to Mr. Matin “You good”. DC Leong responded that it was “about the call, if the call was good”. He agreed he did not make a note of what he specifically asked him. He agreed he paraphrased what was said in his notes. I accept DC Leong’s evidence that it was his practice after a detainee spoke with counsel to confirm that the detainee was satisfied with their contact with the lawyer or duty counsel. Although he does not recall his precise words, I find as a fact that in this case, as was his practice, DC Leong asked Mr. Matin if he was satisfied with the call, and Mr. Matin told him the call was good.

74Mr. Matin testified he did not remember giving a thumbs up sign or indicating the call was good. I do not accept that immediately after the call Mr. Matin was simply responding “ya” to a general question by DC Leong unrelated to his contact with duty counsel. Having regard to the full context of the interaction, I find as a fact that Mr. Matin gave a thumbs up to DC Leong to communicate to him that his phone call with duty counsel was done and he was satisfied with the call. I also find as a fact that he verbally confirmed with DC Leong that his call with duty counsel “was good” when DC Leong returned to the hospital room.

75In cross-examination, DC Leong agreed he did not tell Mr. Matin it was his only opportunity to speak to a lawyer. DC Leong said he would give a detainee a second call to counsel if they expressed dissatisfaction.

76PC Court was outside of the room when Mr. Matin spoke with duty counsel. He testified that he made note of when Mr. Matin was speaking privately with duty counsel as between 8:42 p.m. to 8:44 p.m. He said he got the time from the other officer.

77At 8:51 p.m., DC Leong received Mr. Matin’s clothing from PC Kogan in four paper bags containing Mr. Matin’s jeans, red shorts, black socks, a black belt, two plastic bags, and a watch with a leather strap. He later turned the clothing over to PC Court at 10:15 p.m. PC Court provided Mr. Matin’s clothing to Detective Bulats.

78PC Court received Mr. Matin’s underwear at 11:07 p.m. after it was removed by medical staff. He testified that he was not involved in the removal of the underwear. They were handed to him by medical staff, and he put them in a bag. When medical staff transferred Mr. Matin from one bed to another bed, PC Llewyn seized a bloody t-shirt that was found underneath Mr. Matin by medical staff. It was handed to him by the nursing staff.

79Detective Bulats testified that he and PC Chessy, identification officers, arrived at Sunnybrook hospital at 11:27 p.m. and went to Mr. Matin’s hospital room. Detective Bulats introduced himself to Mr. Matin and told him he would be taking pictures of his injuries and would collect DNA from his hands. After taking photos, Detective Bulats took DNA swabs from both of Mr. Matin’s hands. It took approximately 15 minutes for Detective Bulats to complete the photos and swabs.

80Mr. Matin was on a stretcher and Detective Bulats said he did not see what Mr. Matin was wearing underneath the bedding. Initially, DC Bulats testified he could not remember if Mr. Matin was handcuffed. After reviewing the photos he took of Mr. Matin, Detective Bulats testified that Mr. Matin was not handcuffed.

81DC Bulats received Mr. Matin’s clothing from PC Court at 12:18 p.m.

82Although the Applicant originally submitted in their materials that the officers “seized all of the Applicant’s clothing down to his underwear”, the evidence on the s. 10(b) voir dire clarified that the clothing was not removed by the police. Rather, it was removed by EMS/ medical staff and subsequently seized by police. Chad Gallant testified that he removed Mr. Matin’s clothing as per the usual practice for someone arriving at a trauma centre like Sunnybrook. He recalled there was blood on Mr. Matin’s shirt. Mr. Matin testified that EMS removed his shirt by cutting it off, and he was wearing his underwear.

83The Applicant did not argue that Mr. Matin was subjected to a strip search, and I find as a fact that the police did not remove Mr. Matin’s clothing. They seized clothing removed by medical staff/EMS.

Evidence of Duty Counsel, Mr. Melady

84Mr. Matin waived privilege over his August 25, 2023 conversation with duty counsel, Conlan Melady.

85On August 25, 2023, when Mr. Melady gave advice to Mr. Matin, he was an inexperienced lawyer who had been working as duty counsel for three to four months.

86Mr. Melady is a lawyer in good standing with the Law Society. He completed law school at Western University and was called to the bar in 2022. After he was called to the bar, Mr. Melady established a law firm, KCP legal services, and did real estate work until he was hired as duty counsel.

87Mr. Melady began working as duty counsel in May 2023 and continues to work as duty counsel. He works as an independent contractor for Foundever, providing Brydges duty counsel services. He is not a direct employee of Foundever. He can take on other work and maintain his own firm. He testified that 95% of his work is as duty counsel, and 5% is real estate. He is self-employed, and he/his firm invoices Foundever at the end of each month.

88Mr. Melady testified that he works at least five eight hour shifts a week as duty counsel and often works more than forty hours per week as duty counsel. Duty counsel are paid hourly and he receives an additional ten percent for shifts between midnight and 6:00 a.m. There are no bonuses or incentives. The amount he is paid is not impacted by the number of calls he takes.

89After being hired as duty counsel, Mr. Melady’s training included shadowing an experienced duty counsel for approximately 12 hours and reviewing case law, and legal memorandums prepared by Foundever. He asked to shadow on additional calls involving serious offences. He receives ongoing training through a newsletter and legal articles.

90When Mr. Melady was hired as duty counsel he had no criminal litigation experience. He had never appeared in court or conducted a criminal trial. When asked if he had seen a police interview, Mr. Melady said he viewed police interrogation videos during his undergraduate studies. He started independently taking Brydges duty counsel calls a day and half after being hired.

91The call with Mr. Matin was the first time Mr. Melady provided advice to someone charged with murder. He was not sure whether he has provided advice on a homicide matter or criminal case involving a fatality since his contact with Mr. Matin. Mr. Melady testified that if he felt he was not capable to provide legal advice, he would not do so due to the Law Society Rules and his own decision. He testified that he has never advised the police that he is not qualified to handle a call.

92In respect of how duty counsel receive calls from detainees, Mr. Melady explained that when a police officer calls the duty counsel 1-800 number if a duty counsel is available, the call is picked up by duty counsel immediately. If no duty counsel is available, the call is routed to one of three in-boxes based on the prompt selected by the officer, i.) youth matters, ii.) serious offences including impaired driving, and iii.) a general in-box for all other matters. All duty counsel are notified when a voice message is waiting and requires a response. When a duty counsel completes a call, they will respond to voice messages waiting.

93Mr. Melady estimated that on August 25, 2023, there were three or four other duty counsel responding to calls.

94Mr. Melady said that when he retrieved a message he would listen to the full message prior to returning the call.

95Mr. Melady said he had no memory of the conversation he had with Mr. Matin. He agreed that he spoke with Mr. Matin based on the standard duty counsel call log that he completed. The call log, Exhibit 4, is set out below. It is a standard form completed by duty counsel to document every call. It is used to record all notes made by duty counsel about a call.

96The first box contains a record of the information provided by the police officer and the time of the officer’s call. Some of the information in the form is automatically generated, including the time the call was received and the nature of the charge. Other information is entered by the duty counsel when they review the voicemail.

97The duty counsel log for Mr. Matin’s call indicates the original call from DC Leong was received as a voicemail at 8:29 p.m. The time was automatically generated. DC Leong provided Mr. Matin’s name, time of arrest (6:51 p.m.), the charge - murder, and that he was being held for a show cause hearing the next day in Newmarket.

98The second box on the form automatically records when duty counsel returns the call. The “start time” reflects when duty counsel dials the number left by the police officer. Mr. Melady explained the “start talking” time reflects when duty counsel begins talking directly with the client. He records this time by pushing a button and similarly generates the “end call” time when the call is complete by pushing a button. Mr. Melady said he spoke with Mr. Matin from 20:41p.m. to 20:45p.m., approximately 4 minutes. Mr. Melady explained that both the time duty counsel returns the call to the police and the time when duty counsel begins speaking with the detainee is recorded because sometimes there is a lag between when the call is returned and when the private conversation with the client begins such as when the detainee has to be transported to a private room to speak on the phone.

99Mr. Melady testified that he returned DC Leong’s call at 8:40 p.m. The form indicated that he started talking with Mr. Matin at 8:41 p.m. and the call ended at 8:45 p.m. Only minutes, not seconds, are captured. Mr. Melady entered “spoke” in the call disposition box which he explained indicates that he spoke with Mr. Matin.

100The third box on the duty counsel call log contains several prepopulated boxes. Mr. Melady testified that the checked boxes in Exhibit 4 indicate the topics he covered with Mr. Matin. The information he said he would have provided, based on his general practice and having checked the boxes in the form included the following:

i.) Identify

He identifies himself as a duty counsel lawyer with Legal Aid in every call and confirms the identity of the person he is speaking with. He will explain further if the person does not understand who he is.

ii.) Privacy

He asks detainee’s if they are alone in the room and said he would ask the detainee to ask others to leave the room because of privilege and confidentiality.

iii.) Ability to understand advice;

He checks this box if he believes the client understands. If they do not understand due to a language barrier, he will pass the client on to another duty counsel or get an interpreter. He confirms the detainee understands the charges they are facing and explains the charges in a way they will understand. He does not discuss the essential elements of the offence.

iv.) Injuries

He inquires whether the detainee has a physical injury and would list any injuries on the form. Mr. Melady did not remember if Mr. Matin told him he was injured or in the hospital. Mr. Melady made no note in the duty counsel log that Mr. Matin was in the hospital and injured.

v.) Prior Statement

He inquires whether the detainee gave the police a statement and he also asks if the person told the police what happened or admitted to the offence. He would note yes if they told him they made a statement to the police. Blank means they said they did not.
If he knows the detainee has been around medical staff, he may ask whether they talked about what happened to them and will tell them to speak to medical staff only about injuries and not how they received them. He will say something about remaining silent unless speaking with a lawyer or medical staff.

vi.) Right to Remain Silent

Mr. Melady said this is the most important topic. He tells detainees that everyone has the right to remain silent and they do not have to speak if they do not want to.
He informs clients in simple terms that they should not speak to the police and depending on what they say he advises them accordingly.
He explains to the arrestee their right to remain silent and the consequences that could come from not exercising their right to remain silent.
He tells detainees they should not speak to the police. Once they have hired a lawyer and obtained advice, they may want to give a statement at that time.
He tells detainees not to say anything and to remove themselves from the conversation by saying their lawyer told them not to answer or that they do not want to answer any questions. He may tell them to just remain silent, put their head down, shut their eyes and ignore the police or to say that their lawyer told them not to say anything. He said when people express their belief that if they speak they may be released, he tells them it is best to remain silent and even if they did nothing, it still may be a bad idea to provide a statement.
He informs detainees that the police may lie to them or trick them, and they should remain silent and assume they are being recorded unless speaking with a lawyer. He may provide more information depending on how they respond. He does not talk to detainees about undercover officers but emphasizes that they should remain silent because they should assume they are always being recorded.

vii.) Fingerprints and Photographs

He explains that if they have been charged, the police have the right to take fingerprints and photographs. He said he usually talks about swabbing and tells detainees that the police have the right to get external swabs of skin, and they should comply but do not have to consent. He said he would discuss swabs in the case of murder.
He said he tells them the police may lie to them to get a confession and the police need a warrant for bodily samples.

viii.) Bail/Court/Release/Duty counsel/LAO;

He said if a person is being held for a show cause hearing, he would tell the detainee that they are being held for bail, that the police must get them into court as soon as possible, that duty counsel (at court) will help them if they want or need a lawyer, and it is ultimately up to the Judge to decide what happens after the hearing. He will inform them to look up Legal Aid Ontario and start an application.
He will sometimes ask about sureties and said there is a space on the form to record information about sureties. He said he rarely calls sureties but will do so if the detainee provides him with a name and number. If a person asks him to contact a family member, he would do so and would populate the form with the contact information.
He said what he says about bail and court does not differ for murder from other charges. Mr. Melady did not appear to be aware that under s. 522 of the Criminal Code persons charged with a s. 469 offence, including murder, may only be released by a Superior Court Judge.

101Mr. Melady said he responds to questions as the conversation unfolds, and each call is different because of the questions the person asks and their emotional state. He said at the end of the call, he confirms with the detainee that they understood him and asks if they have any other questions. He will spend more time explaining if he thinks something like impairment is impacting their understanding. Mr. Melady said he has never been concerned that the arrestee did not understand him at the end of the call. He said he has only hung up on someone if they were yelling at him or if he believed the person was trying to waste time, such as in the impaired driving context, but it does not happen very often. He said if the call ended abruptly, he would call back. He would note it if the call ended abruptly and he called back. Another call would be logged.

102Mr. Melady said that he does not tell detainees that it may be their only chance to speak to a lawyer. He explains that they can have a second call if their jeopardy changes including if there are new charges, or if the police are going to carry out a strip search or take penile swabs.

103In the duty counsel log there is room to add comments regarding the “advice to client” beside each category and for general comments at the end of the form. Mr. Melady made no notes in any of the boxes.

104Mr. Melady did not remember if Mr. Matin asked him questions to which he responded that Mr. Matin needed to get a lawyer. However, he said he tells every detainee they should get their own lawyer as soon as they can.

105Mr. Melady estimated that his average duty counsel call with a detainee is about two minutes in length. However, he said there is no upper limit on the length of the call. He said he does not feel pressured to give advice in a particular way.

Evidence of Riyad Bachus

106Mr. Bacchus is the Director of the Legal Assistance Division for Foundever. He has been the Director since December 2005. He is a lawyer and has worked for Foundever since February 2000. Prior to becoming the Director, he was a Brydges duty counsel lawyer.

107Mr. Bacchus testified that Foundever (formerly Sykes Assistance Services) has contracted with Legal Aid Ontario to deliver Brydges duty counsel services in Ontario since April 1, 1994. Aside from the Brydges duty counsel 1-800 number, the only other service, Foundever, operates for LAO is a small program for young persons, parents, and guardians for free advice for young persons who have been charged but are not detained or under arrest.

108The Applicant obtained and filed as an Exhibit (Exhibit 13) the July 1, 2019 four year agreement between LAO and Sykes Assistance Services for a 24 hour a day, seven day a week “Brydges Duty Counsel Hotline Service”. The agreement was extended on July 1, 2023, July 1, 2024, and June 30, 2025 for additional one year periods. Included amongst the terms of the contract and the technical requirements (as set out in Schedule A) were the following:

The Service Provider (Sykes) is to comply with LAO policies, procedures, and directives applicable to the “Services” as LAO may advise from time to time.
LAO shall pay the Service Provider fees as set out in a Schedule.
The Brydges duty counsel service is to be available to any person who has been detained or arrested in Ontario.
The Service Provider is to provide independent legal advice through a toll free number advising clients of the right to counsel and right not to incriminate themselves. Lawyers are responsible to comply with LAO’s scripting and privacy and confidentiality rules and procedures. Ancillary duties include: consultation with investigating officers if available, explaining the situation to the caller including the right to consult privately, explaining the charge process, explaining what events are likely to occur, informing clients of their rights, obligations, and options, collecting surety contact details, understanding differences in jurisdictions (provincially), and providing other information as required by LAO at any time.
For serious offences including murder, the service provider must: prioritize call-backs, make diligent attempts to speak with the investigating or arresting officer, when advising an accused of the right to remain silent must indicate how the right can be asserted, advise that calls to and from the station to non-lawyers can be monitored and recorded, advise the accused not to speak with other detainees due to the potential of use of undercover officers, advise the accused that services of a private lawyer will be needed and that a request should be made to the officers to facilitate that, and if an accused is represented by a private lawyer, provide the officer with the lawyer’s contact number.
Advice provided must be legally current.
Call logs and electronic case notes must be kept.
Performance targets are identified including that thirty percent of calls are to be answered live, responses to ninety percent of impaired calls must be within twenty minutes, response to eighty percent of all calls must be within twenty minutes; and response to ninety-five percent of all calls within 30 minutes.
The service provider is to prioritize calls where time is of the essence and match serious matters to senior counsel.
A quality control program is to be put in place to ensure new hires (as duty counsel) have the required qualifications, proper oversight and supervision of counsel providing advice, that staff provide competent legal advice, and there is complete, consistent, and professional note taking.
Monthly reporting is to be provided by the Service Provider to LAO including detailed statistics reporting matters such as call volume, average length of call, language and geographical distribution, and occurrence types.
Duty counsel must be lawyers in good standing with the Law Society of Ontario and have a minimum of one year of recent experience providing advice in criminal law in Canada.

109Mr. Bacchus is the point of contact with LAO and is responsible for hiring Brydges duty counsel. In 2018, Foundever exclusively determined the qualifications of Brydges duty counsel lawyers. More recently, (after 2023) LAO reviews the qualifications of new lawyers and must approve the candidate in writing.

110Since 2024, LAO has had a specific account manager who is the point of contact with Foundever regarding Brydges duty counsel services. She discusses proposed changes to the system with Mr. Bacchus and whether Foundever should participate in initiatives at LAO, for example sharing training/continuing education resources with Brydges Duty counsel.

111Mr. Bacchus indicated that LAO does not provide a “script” that lawyers must follow in providing legal advice to detainees.

112Mr. Bacchus confirmed that duty counsel lawyers are independent contractors. None of the Brydges duty counsel are employees of Foundever. Duty counsel submit invoices to Foundever for payment and the provision of duty counsel services is typically part of the lawyer’s practice. Foundever pays the invoice. It is not billed back to LAO. Foundever does not issue T4’s to duty counsel. Duty counsel lawyers pay their own Law Pro and Law Society dues.

113Mr. Bacchus testified that Brydges duty counsel lawyers must be in good standing with the Law Society and complete mandatory training. He testified that new Brydges duty counsel lawyers shadow a senior duty counsel lawyer for 12 to 20 hours and must complete mandatory reading and technical training before being approved to give advice independently. Once the training lawyer confirms a new duty counsel is competent, Mr. Bacchus speaks to the lawyer about standard protocols. If he is satisfied the lawyer is fluent with the law and technology for service delivery, he will approve the lawyer to begin delivering services.

114Foundever provides Brydges duty counsel with standard memorandums of law that are drafted by a Brydges duty counsel lawyer, reviewed by a second lawyer, and approved by Mr. Bacchus. The memorandums are updated to reflect changes in the law. There is mandatory ongoing training provided through internal legal memorandums. A “knowledge library” of legal memorandums is maintained by Foundever. Foundever also pays for Brydges duty counsel lawyers to attend continuing professional development programs such as the Law Society annual impaired driving program, at least once per year.

115Mr. Bacchus testified that he connects with the Brydges duty counsel lawyers at least once annually for a review and he will review some of their advice logs prior to the meeting. He may coach a lawyer about sufficient note taking. In some instances, the system will identify a duty counsel log to be audited. Mr. Bacchus disagreed with Mr. Melady’s evidence that he had not discussed substantive legal issues with him since Mr. Melady started. He testified that Mr. Melady often worked in the office, and as a result, they saw each other and discussed legal matters.

116Mr. Bacchus testified that monthly reports are provided to LAO. The reports provide information about the number of calls received, average length of call, the percentage of general calls answered live and returned within twenty minutes and thirty minutes, the demographics of the clients (adult youth, male, female), the number of individuals released or held for show cause hearing, and the nature and jurisdiction of the charge. Language demographics are also gathered.

117Mr. Bacchus agreed the average Brydges duty counsel call time in September 2023 was 7 minutes and 48 seconds. In October 2023 it was 7 minutes and 56 seconds, and in November and December 2023 it was 8 minutes and 10 seconds.

118Although Mr. Melady testified that he worked an eighteen hour shift, Mr. Bacchus testified that he does not assign lawyers to shifts exceeding twelve hours. However, he explained that an eighteen hour shift could occur if a duty counsel lawyer took over a shift from another duty counsel lawyer.

119I generally found Mr. Bacchus to be a credible and reliable witness. He was forthcoming and prepared to acknowledge shortcomings of the Brydges duty counsel system.

Evidence of Liam O’Connor

120Liam O’Connor is an experienced defence counsel. He has been practicing exclusively criminal law for thirty-one years. He was a reasonable and balanced witness. He described his approach to providing advice to detainees who are exercising their right to counsel following arrest, but agreed there are varying approaches to the provision of competent advice to detainees. Despite his extensive criminal law experience, Mr. O’Connor testified that he does not give advice to persons charged with impaired driving or 80 plus offences because it is not his area of expertise.

121Mr. O’Connor explained that at the outset of a call he tries to get as much information as possible from the arresting officer and will seek to speak to a senior officer if possible. He seeks to obtain information about whether the detainee will be held for a show cause hearing. Where an accused has been arrested for murder, he testified that he wants to know whether a body has been recovered and get as much detail as possible about the evidence to determine if there may be perishable evidence like surveillance evidence that may be overwritten.

122Mr. O’Connor advises there are usually three stages to his contact with a client: i.) He obtains biographical information from the client to get to know them; ii.) He educates them about what will happen next and asks them questions, iii.) He asks if they have any questions and conducts a mock interview. Mr. O’Connor said he finishes by asking if the detainee has any questions. At the end of the call, he seeks to determine from the officer if there is anything new or if anything has changed.

123Mr. O’Connor advised that more than fifty percent of the time he is contacted by someone he has a relationship with already. If he does not know the client, he gathers background about the client to get to know them, to build rapport, to determine if there are drug, or alcohol concerns, or intellectual impairments that may impact their comprehension. If there are comprehension concerns, he will inform the officer. He obtains information about potential sureties and if the detainee needs him to contact anyone for them or make arrangements such as to arrange for someone to care for a pet.

124In terms of his practice when providing advice to detainees, Mr. O’Connor explained that:

He seeks to build trust with his clients by telling them about his background and assuring him that he is independent from the police.
He seeks to convey the seriousness of the circumstances by informing them that what they do next could affect their lives and by explaining how.
He tells them what will happen next.
He disabuses the client of the notion that they can speak to a lawyer again. He tells them it will be their last call.
He explains why they should not speak to the police, including that they do not have all of the information and he will provide them with scenarios of past experiences where speaking to the police did not go well for a client.
He speaks to them about police tactics and informs them that the police have a right and duty to investigate crimes and do not have to take them back to their cell if they indicate they do not want to give a statement. He tells the detainee that the police can lie to them or use trickery. He informs them that there may be undercover police officers in the cells so they should not talk to others in custody about their case or to family members.
He does a mock run through of how an interview may be conducted after the call, which assists him to determine the level of comprehension of the client.

125Mr. O’Connor agreed that usually junior lawyers from his firm respond to Brydges s. 10(b) calls.

126He agreed sometimes a detainee does not want to listen or may lie to him. He agreed detainees will demonstrate a wide range of nervousness. He agreed some people will not be ready to take in much information, and in those circumstances, it may be necessary to focus on the most important information.

127During cross-examination, Mr. O’Connor agreed when he is representing someone on a Legal Aid retainer that he must request approval for funding for an expert, or to bring a bail review, and there are billing caps dependent on the charge. He agreed he must ask for a budget to exceed the cap or a discretionary increase. Legal Aid may approve some, all, or none of the requests. He agreed that a budget will not be provided on a murder until trial dates are set.

128Mr. O’Connor indicated that even though he requires approval from Legal Aid for various things when representing a client on a Legal Aid retainer, he remains independent when acting for the client.

Evidence of Mr. Matin

129Mr. Matin was born in Iran and moved to Russia when he was 18 years old to attend university. In Russia, he completed his master’s degree in economics. After completing his degree, he moved to New Zealand where he lived for two years before moving to Canada. Mr. Matin speaks English, Russian, and Persian. In Canada, he worked as a manager or general manager in several restaurants.

130Mr. Matin testified that his memory of the evening of August 25, 2023 is blurry. He said some parts he remembers and some parts “not really.” He explained it was two years ago, and he was traumatized, emotional, injured, confused, and scared.

131Mr. Matin said when the police arrived at the Taylor Mills Drive South house, he was in the house. He said he then sat on the stairs. A police officer asked him a question. He was uncertain of the question but thought the officer asked “Why did you do that, or what did you do?” He said he could not remember if he answered. He said he could speak but he had pain and had some difficulties. He could not recall how loudly he could speak. He said over time the pain and his voice got worse.

132Mr. Matin said he could not remember what else happened on the stairs. When Mr. Hechter asked how many people he dealt with or saw while on the stairs, he responded “I can’t recall.” He added “maybe more than 5 or 6 people.” He said he did not know who they were. He dealt with too many people to count over the course of the evening. He said he was not paying attention to the persons he had contact with because he was emotional.

133Mr. Matin described being put on a stretcher and moved into the ambulance. He said he did not remember anything that happened between the stairs and the ambulance and did not remember how much time passed.

134Mr. Matin said that in the ambulance, his head was towards the front of the ambulance, and his feet were closer to the door. There were two paramedics and a police officer in the ambulance. The paramedics were next to him taking care of his wellbeing, checking his body, and asking questions. They put an IV in him. The paramedics asked him questions, and he answered them because he thought the questions were important.

135Mr. Matin said the police officer in the ambulance was somewhere behind him. He did not see him. He knew he was behind him because he was speaking to him. Mr. Matin said at first, he did not know the person was a police officer. When Mr. Hechter asked Mr. Matin when he learned he was a police officer, Mr. Matin replied when he began asking him questions. He said the officer asked him his name, Marina’s name, and asked him A.N.’s name and if she was home. He responded that she was with her Dad. He believed these questions happened before they closed the door of the ambulance. He said he answered the questions because he thought he had to.

136Mr. Matin said the police officer behind him in the ambulance told him he was arrested, and he did not remember what was said but he heard the word “arrest” and he heard the word “murder”. He felt scared, helpless, and hopeless.

137Mr. Matin said he was wearing a t-shirt, shorts, and underwear. The paramedics removed his t-shirt by cutting it. He did not remember what happened with his other clothing, but he said he was wearing his underwear.

138Mr. Hechter asked Mr. Matin about any conversations he had with any persons he knew were police officers from the time he was at the hospital until he spoke with duty counsel. Mr. Matin said he knew there were police officers that were dealing with him, but he did not remember the details of any conversations he had with them.

139Mr. Hechter asked Mr. Matin how he first became aware that there was a phone call “in the offing.” Mr. Matin said that at the hospital a person with a blazer came to him and put the phone on the table next to the bed. He said he did not know who the person with the blazer was. Mr. Hechter asked Mr. Matin if the person said anything to him. Mr. Matin responded he could not remember exactly, but he said something about how he needed to talk.

140Mr. Hechter asked Mr. Matin if the man with the blazer asked him any questions. He responded “I don’t think so.”

141Mr. Hechter asked Mr. Matin if the person with the blazer said anything about there being a lawyer on the phone. Mr. Matin hesitated and said “I don’t think I was told that he was a lawyer, because I did not know who I was speaking to.”

142Mr. Hechter asked Mr. Matin if the person in the blazer said why he was having this conversation, Mr. Matin said “I don’t remember”.

143Mr. Hechter asked Mr. Matin what if anything he knew about the person on the other end of the line. Mr. Matin said he did not know anything. Mr. Hechter asked Mr. Matin if he asked the person in the blazer who was on the phone. Mr. Matin responded he did not think so. He said he was not asking anyone any questions. He was just answering questions and going along. When Mr. Hechter asked Mr. Matin what he thought the call was for, he said “I don’t know”.

144When Mr. Hechter asked do you remember whether anything was said about this being your one call to a lawyer, Mr. Matin said no one told him it was his one call. He said later he asked if he could talk to his family and someone told him he could not use the phone because he had a no contact order.

145Mr. Hechter asked Mr. Matin if anyone told him the person on the phone was there to help him. He said no one told him the person was there to help him. He said he was confident about that because he was terrified, hopeless, and helpless, and he was hoping someone would help him. He said he did not trust the person on the phone because he did not know who he was. He said that did not change during the call because all his questions and concerns before the call stayed unanswered during and after the call. He said he became more confused.

146When Mr. Hechter asked Mr. Matin who he thought the call was with, Mr. Matin said “I don’t know.”

147Mr. Matin said he was cold and in pain. He did not have much clothing on him. He said he thought he had only his underwear on. He could not remember if he had blankets or a robe.

148Mr. Matin said he could not speak well. He said he was able to communicate by whispering so it did not hurt much.

149Mr. Matin also said he had difficulty moving his hands. He said at one point he had to lean to the left to communicate with the person on the phone. Mr. Hechter asked Mr. Matin if he was ever handcuffed to the bed while he was in the hospital. Mr. Matin said he was, but he was not sure if he was handcuffed the day of his call with duty counsel. He said he remembered his right hand was free. Later while in the hospital he was handcuffed to the bed.

150When Mr. Hechter asked Mr. Matin if he remembered anything about the conversation, he responded, “a little bit”. He said it was two years ago, and the conversation was not very long. He said he did not know how important the conversation was at the time.

151Mr. Matin said he could hear the person, but he had some difficulty hearing. He had to lean to the left where the phone was on the table.

152In respect of the content of the call Mr. Matin said:

There was conversation about his name. He did not remember if the person on the other end of the phone knew his name or if he told him his name.
He told the person he was in the hospital and that he was injured. They spoke about his injuries, on his neck, and on both sides of his temples.
He said he was freezing, hurt, and scared.
He did not remember if there was any conversation about language or intoxication by alcohol or drugs.
There was no conversation about whether he had previously been arrested. He said if there had been he would have remembered that. He said that conversation never took place.
He said there was no conversation about whether he spoke to the police that night because otherwise he would have told duty counsel he had a conversation with the police or with some other people. That conversation never took place.
He said there was no conversation about what he said to medical staff. He said if there had been, he would have told him that he had a conversation with the paramedic in the ambulance.
He said he was never told that the police might use things he said to others like doctors, nurses, or medical staff. He said otherwise that would have been his concern for sure and he would remember.
Mr. Hechter asked what if any conversation Mr. Matin remembered about his rights. He responded he did not remember. When Mr. Hechter asked Mr. Matin if it was possible there was some conversation about his rights, Mr. Matin said he did not remember.
Mr. Hechter asked if they talked about being silent. Mr. Matin said he did not remember. Mr. Hechter asked if it was possible that they spoke about the right to silence. Mr. Matin said he did not know what was important. He said he was just going through what he was going through. He said he did not know he had any other option. Mr. Hechter asked Mr. Matin if it was possible that there was a conversation about the right to silence. Mr. Matin said if there was a conversation about silence it did not make an impression on him.
Mr. Hechter asked if there was a discussion about the right to silence in the ambulance. Mr. Matin said he did not remember.
Mr. Hechter asked what if anything the person said about answers he might give to doctors and medical staff. Mr. Matin said he did not remember.
Mr. Hechter asked Mr. Matin what he remembered about what the person on the phone said about answers he might give to questions posed by the police officers. Mr. Matin said he did not remember any such conversation. He did not remember anything about how to respond if police officers asked him questions.
Mr. Hechter asked if there was any discussion about Mr. Matin’s obligations. Mr. Matin said he did not know anything. The first time he heard the word obligations was later from Mr. Hechter.
Mr. Hechter asked Mr. Matin if there was any conversation about fingerprints. He said there was no such conversation because when the police officers came for fingerprints, that was the first time he heard about it, and it was a shock. He said he did not say anything about the police coming to take swabs from his hand. He said when the police came to take swabs, that was the first time he knew about that. He said it had not been discussed before.
Mr. Matin said he did not remember anything the person said about what the police would do after the call. Mr. Matin said he did not know what to expect or what was happening. Mr. Hechter asked Mr. Matin if he asked about it. Mr. Matin said he asked the person two questions and in response, both times, the person told him he needed to find a lawyer. Mr. Matin said he understood the person to mean that he was not a lawyer and that he was not there to help him and he was not there to answer his questions. Mr. Matin said he could not recall what questions he asked. Mr. Matin said he knew he asked two questions because twice the person on the phone said he had to find a lawyer. Mr. Matin said the conversation ended after the second time, and he could not communicate any more. He said he could not touch the phone so that meant the conversation was over.
Mr. Matin said he did not remember if the man said anything about how to find a lawyer.
Mr. Matin said he did not know who he was speaking to or what the call was for.

153Mr. Matin said he did not understand the legal significance of the call, and no one told him how the call might affect his legal rights. He did not intend to give up his rights by speaking with the person on the phone.

154Mr. Matin said he did not remember how long the call was, but it was not long. He said after the call ended, the person with the blazer came in. He did not remember how long after the call ended that the person with the blazer came in. He did not remember any conversation with the man in the blazer. Mr. Matin said he was not happy with the conversation he had because his concerns remained the same. He said he was more confused.

155Mr. Matin said he did not know who the person with the blazer was, so he never asked him for a lawyer. He said the person on the phone never told him to ask that person for a lawyer. Mr. Matin said he never asked any police officer for a lawyer because he is terrified of police officers.

156Mr. Matin said he was terrified of police officers because of his first contact with police when he had a bad experience with a police officer in Richmond Hill. He explained that he called the police to attend Ms. Nagolia’s home because he wanted to get some clothing and important documents and did not want there to be problems. He and Ms. Nagolia were going through difficulties at the time and he was living with his parents. Mr. Matin said two officers, a male and female, attended the home. He took his clothing and his important documents from the house and went back to the Jeep. He showed the officer the ownership for the Mercedes and the Mercedes key and asked the male officer if he could use the Mercedes. The officer told him no. He said okay and drove to work. Mr. Matin said several hours later when he was at work the male police officer called him and accused him of taking the Mercedes key. He said the officer told him to shut up, swore at him, and told him to give the key back. Mr. Matin said he responded “sure, sorry.” He felt paralyzed and could not keep working.

157In cross-examination, Mr. Matin agreed the contact with the police about the Mercedes occurred in June 2023. He agreed that while he was at the house with the police, they did not force him to leave and did not threaten him. He agreed after he left the police called twice. He told the police during the first call that he had one key for the Mercedes and Marina had the other. In the second call, he said the police officer said he lied about not taking both keys. Mr. Matin said it was not true. Mr. Matin agreed the call ended with him agreeing to return a key to Ms. Nagolia. He said he was forced to return the key.

158Mr. Hechter asked Mr. Matin if (on August 25, 2023) he asked anyone if he could make a call. Mr. Matin said that while he was in the same hospital room (where he spoke with duty counsel), he asked someone if he could talk to his family. He said the person told him he could not use the phone because of a no contact order. He said he asked again later on. He said his family called the hospital to ask to talk to him and the police said he could not talk to anyone. Mr. Matin said he felt hopeless and alone.

159Mr. Matin said the police officer came after the phone call with duty counsel and told him to remove his underwear. Mr. Matin said he felt embarrassed and humiliated.

160Mr. Matin said he did not remember being photographed that night, but some people came and told him they needed to take swabs. They were not in uniform. He said it was the first time he heard about swabs, and he did not know what was happening. They did not tell him why the swabs were being taken, and they never said anything about calling a lawyer.

161Later in his evidence, Mr. Matin said he remembered being photographed but did not know if it was the same officers who took the swabs or if it was other officers. Mr. Hechter asked Mr. Matin if he asked them for anything at that time. He said he could not recall and added he was not sure if he asked the officers or hospital staff for water. He said he was trying to tell them he needed water. It was either in the same room or the surgery room. He said he could not communicate properly. The person he asked came close to him to hear what he was saying. He was speaking very low, and he showed them he needed water.

162Mr. Matin said after he had surgery he was asleep. When he woke up, he was in a room with police officers and hospital staff. The police officer made a phone call for a court appearance. Mr. Matin said during his first court appearance over the phone, he wrote on a piece of paper that he did not understand everything, and the officer repeated it to the person on the phone. He does not have a clear recollection of his court appearances.

163Mr. Hechter asked Mr. Matin if anyone helped him to get a lawyer. He said he could not remember, but added at one of the court appearances, while he was still in the hospital and when he could speak, someone asked if he had a lawyer and he said no. They sent him a list of lawyers with 200 or 300 names and phone numbers a day or two before he was released from the hospital. He was provided access to a phone to contact someone on the list.

164Mr. Matin said at the next court appearance, a couple of days before he was released from the hospital, he learned that his brother or father were trying to find him a lawyer. The police officer called his brother so he would know what was happening. It was his only contact with his family until he was at the Central East Correctional Centre (CECC).

165During cross-examination, Mr. Matin said he did not remember the paramedic asking him questions about his injuries before he was in the ambulance. He did not remember the paramedic asking him if he caused the injuries himself or telling the paramedic the injuries were self-inflicted. He said he did not remember telling the paramedic he tried to commit suicide. He said he did not remember telling the paramedic that he stabbed himself three times.

166Mr. Matin agreed he showed the paramedics his injuries in the ambulance. He said he did not remember telling the paramedics he caused his injuries with a knife, telling them the length of the knife, that it was a serrated knife or that it was a steak knife.

167Mr. Matin agreed that on August 25, 2023, the police were not violent and did not threaten to hurt him.

168The Crown asked if any of the police asked him if there was anyone in the house. Mr. Matin said he did not remember. He said he did not remember saying that there was a lady downstairs.

169When the Crown suggested to Mr. Matin that a police officer read him the rights to counsel in the ambulance, Mr. Matin said he did not remember.

170The Crown suggested to Mr. Matin that he responded “I hear you yes”. Mr. Matin said he did not remember.

171The Crown suggested to Mr. Matin that an officer read him a caution. Mr. Matin said he did not remember.

172Mr. Matin said he did not remember the hospital staff taking him for a CT scan.

173Crown counsel suggested to Mr. Matin that after the CT scan, an officer asked him if he had his own lawyer. Mr. Matin said he did not remember.

174The Crown suggested that the officer told Mr. Matin he would put him in touch with duty counsel. Mr. Matin said he did not remember.

175The Crown suggested to Mr. Matin that the officer who brought the phone in and put it on speaker phone told him that duty counsel was on the phone. Mr. Matin said he did not remember. He said he did not remember the officer staying in the room and making sure they could speak to each other. He said he did not remember asking the officer for water or him telling him he could not have water for medical purposes.

176When the Crown suggested to Mr. Matin that he knew he was speaking to a lawyer or he knew they were duty counsel, Mr. Matin initially responded I don’t remember, and then said he did not know who he was speaking to. When the Crown suggested he knew it was not a doctor or nurse on the phone, Mr. Matin said he did not know who he was speaking to. He said, he thought the person might be police.

177The Crown put to Mr. Matin that the last thing that happened before the officer with the phone came in was a conversation about a lawyer and duty counsel. Mr. Matin said he did not remember.

178When the Crown suggested to Mr. Matin that he asked the person some questions and asked whether he asked “hey are you a lawyer”, Mr. Matin said he did not remember. He said he asked the person two questions and both times they said he needed to find a lawyer.

179Mr. Matin agreed the person on the phone made sure he was Daniil Matin. He agreed the person asked where he was and he told him he was at the hospital. He agreed the person asked about his injuries. He did not recall if the person said anything about privacy. He said he did not believe the person asked him about anything he said to the police.

180During cross-examination about his conversation with duty counsel, Mr. Matin said he did not remember: if the person he spoke to said he had the right to silence, said he did not have to speak to the police, said they could use what he said as evidence, told him if he refused to speak that the police could keep asking questions, that if he wanted to be silent he had to keep saying he did not want to talk to them, that the police could lie to him, who duty counsel was, what legal aid was, or about taking fingerprints.

181Mr. Matin said when police took fingerprints and photos, it was a shock to him so he did not think the person told him.

182Mr. Matin said he did not think the person discussed bail court because he did not know what bail was until he spoke to Mr. Hechter.

183Mr. Matin said he could not remember what the questions he asked were or even what they were about.

184Mr. Matin said after the person told him he needed to get a lawyer two times, he was “not able” to communicate with that person anymore. Mr. Matin said he did not hang up the phone. He did not touch the phone.

185When asked directly if he was handcuffed, Mr. Matin said for sure his right hand was free, and he could not remember if his left hand was handcuffed.

186When the Crown suggested to Mr. Matin that he gave the thumbs up sign to the officer at the end of the call, he said he did not remember. He agreed that thumbs up means everything is okay.

187When the Crown suggested to Mr. Matin that the officer asked him about the call and he said it was all good, Mr. Matin said he did not remember.

188When the Crown suggested that the police came to take Mr. Matin’s underwear and swabs three hours after the phone call, he initially disagreed and then said he did not know how long it was.

189When the Crown asked Mr. Matin if he ever asked the police to speak with a lawyer, he said he did not remember.

190Mr. Matin agreed he did not ask the police who he spoke with on the phone.

191In re-examination, Mr. Matin said he never told the police that he wanted to speak to a lawyer or that he was scared and confused because he was scared of the police because of his first interaction with the police.

Court Appearances

193The Applicant filed three audio recordings of the court proceedings on August 26 and 28, 2023. Exhibits 10A-10C.

194Mr. Matin appeared in court in Newmarket at 9:37 a.m. on August 26, 2023 and was assisted by duty counsel, A. Zheng. Because of his surgery, he could not speak. PC Matthew Rooney appeared from the hospital with Mr. Matin. He confirmed with Mr. Matin that he spoke English and understood what was being said. The Justice of the Peace remanded Mr. Matin to August 28, 2023 and made a no contact order with A.N. and Benyamin Nagolia. The Justice of the Peace explained the orders to Mr. Matin. PC Rooney confirmed that Mr. Matin nodded his head, indicating he understood. Duty counsel requested a s. 517 publication ban.

195On August 28, 2023, Mr. Matin appeared again from the hospital. Mr. Goldglass appeared as duty counsel to assist Mr. Matin. A police officer advised the court that Mr. Matin was awake and listening. Initially, there were technical difficulties and the officer the medical equipment made it difficult to hear. The charge was read. The officer confirmed he could hear. When the Crown advised that Mr. Matin would have to show cause in the Superior Court of Justice because it was a s. 469 offence, Mr. Goldglass requested an adjournment until Mr. Matin was released from hospital so he could speak to duty counsel or counsel to ensure he understood the “automatic detention order.” The matter was adjourned to August 29, 2023 and Justice of the Peace indicated the matter would be adjourned day by day until Mr. Matin could speak so he could be assisted by duty counsel or retain private counsel. The Crown advised the Justice of the Peace that Mr. Matin spoke with duty counsel post arrest. The clerk repeated the non-publication order and non-communication orders.

196The information shows that after August 28, 2023, Mr. Matin appeared with duty counsel appearing on his behalf on August 29 and 30, 2023, and September 5, 2023. On September 5, 2023 duty counsel advised they had a message from Shulman J., counsel. Mr. Hechter appeared as counsel of record beginning on September 19, 2023. Mr. Matin was discharged from the hospital on September 7, 2023 and taken to the CECC.

197In their factum and Application, the Applicant explained that the conduct of duty counsel in Court is not in issue on the application and the details of the initial court appearances were provided for context. The Application proceeded on the basis of a violation of s. 10(b) on August 25, 2023 due to the alleged deficiencies of the call between Mr. Matin and Mr. Melady, not as a result of any subsequent conduct during the court appearances.

C. Findings of Fact

Arrest and Rights to Counsel

198I find as a fact that PC Kogan arrested Mr. Matin for murder at 6:51 p.m. while he was in the ambulance. He informed him of the reason for his arrest, murder, and read him the rights to counsel. He asked Mr. Matin if he understood. Mr. Matin responded, “I hear you, yes”.

199Shortly after, PC Kogan asked Mr. Matin if he wanted to call a lawyer now and Mr. Matin responded that he did not have a lawyer.

200I find as a fact that at the hospital at 8:19 p.m., PC Kogan went into Mr. Matin’s hospital room and asked Mr. Matin if he had a lawyer he wanted to speak to. Mr. Matin told him that he wanted to speak to duty counsel.

201I find as a fact that Mr. Matin understood the reason for his arrest and the rights to counsel when they were read to him. On August 25, 2023, throughout his dealings with EMS and police at 382 Taylor Mills Drive South, and the hospital, Mr. Matin demonstrated his ability to understand and communicate with police and EMS. He complied with their directions and when asked questions, his answers were coherent and responsive to the questions asked.

When PC Kogan arrived and asked Mr. Matin to come out of the house he complied.
When PC Kogan asked if there was anyone in the house, he said there was someone in the basement.
Mr. Matin told both the police and EMS that his injuries were self-inflicted and described how he caused the injuries.
When asked about the whereabouts of the child, he told PC Kogan that the child was with her father.
Mr. Gallant described Mr. Matin as calm, conscious, and alert. He showed no sign of emotional distress. Mr. Gallant was able to communicate with him and could hear him clearly when he spoke with him.
In the ambulance, Mr. Matin responded appropriately to questions from Chad Gallant about his medical history. When Mr. Gallant asked Mr. Matin if he had taken any drugs, he provided details. He reported that he took cocaine around 2:00 p.m. and Percocet around the same time.
When asked about his injuries, Mr. Matin provided details. He described using a serrated knife to stab himself three times. He said he tried to commit suicide.

202I accept PC Kogan’s evidence that he had Mr. Matin’s full attention when he read him the rights to counsel, and I find as a fact that Mr. Matin understood what was read to him including that he could contact the 1-800 number to put him in contact “with a legal aid duty counsel lawyer for free legal advice right now”. Because he understood, Mr. Matin responded “I hear you yes”. Mr. Matin understood when PC Kogan asked him if he wanted to call a lawyer now, and as a result, he told PC Kogan he did not have a lawyer.

203At the hospital at 8:19 p.m., Mr. Matin understood PC Kogan when PC Kogan asked him if he wanted to speak to a lawyer. Because he understood and because he did not have a lawyer, Mr. Matin told PC Kogan that he wanted to speak to duty counsel.

204I find as a fact that Mr. Matin knew when he spoke with PC Kogan at the hospital that he was the same officer who arrested him at 382 Taylor Mills Drive, rode with him to the hospital, spoke with him in the ambulance, and accompanied him for his tests at the hospital. DC Kogan was primary police officer that Mr. Matin had contact with. He was in uniform and remained with Mr. Matin between 6:45 p.m. and 8:19 p.m.

Length of the Private Call with Duty Counsel

205I find as a fact that DC Leong called the duty counsel number and left a voicemail message on August 25, 2023 at 8:29 p.m. DC Leong provided his name and badge number (2307), the phone number he could be contacted at, Mr. Matin’s name, and gender. He advised that Mr. Matin was charged with murder. He indicated that Mr. Matin was arrested at 6:51 p.m. on August 25, 2023. He advised Mr. Matin spoke English and that he would be held for a show cause hearing. Mr. Melady had this information when he returned the phone call at 8:40 p.m. as reflected in the call log.

206I find as a fact that Mr. Matin spoke privately with duty counsel for two to three minutes between 8:42 and 8:45 p.m.

The duty counsel log recorded “start call” as 8:40 p.m. and recorded the “end call” time as 8:45 p.m. I find as a fact that 8:40 p.m. is when Mr. Melady called DC Leong returning his voicemail message. The call log time coincides with the time DC Leong noted receiving the call.
I find that between 8:40 p.m. and 8:42 p.m., DC Leong answered the call, entered the hospital room, and informed Mr. Matin he had duty counsel or “duty” on the phone. Mr. Matin asked DC Leong for water and DC Leong asked a nurse about getting Mr. Matin water. DC Leong informed Mr. Matin the nurse told him he could not provide him water for medical reasons.
DC Leong put his phone on speaker phone and confirmed that Mr. Melady and Mr. Matin could hear and communicate with each other. DC Leong then left the room to provide privacy to Mr. Matin and Mr. Melady.
There was a brief period of time that duty counsel and Mr. Matin were on the phone in the presence of DC Leong before DC Leong left them to speak in private. I find as a fact this accounts for the duty counsel log reflecting that 8:41 p.m. was the “start talking” time and DC Leong’s note that the start of the private portion of the call was at 8:42 p.m.
I find as a fact, that the private portion of the call between Mr. Matin and Mr. Melady commenced at approximately 8:42 p.m. and was two to three minutes in length, ending at 8:45 p.m. Mr. Melady explained that he pushes a button that registers the precise time the call ends. DC Leong assumed he noted the time the call ended by looking at his phone and recording the time. DC Court said he got the time he recorded from what another officer said, presumably DC Leong. I am satisfied that the duty counsel log recorded the exact time the call ended and is the best evidence of the time the call ended.

Understanding of Mr. Matin

207I find as a fact that Mr. Matin knew that duty counsel was a lawyer.

Mr. Matin is an intelligent man. He is well educated and speaks English fluently. He speaks three languages and has a master’s degree in economics. Prior to the allegations, he was the manager of a restaurant and in charge of its day to day operations.
As noted, when speaking with the police and EMS at the scene and in the ambulance, he responded appropriately to questions asked and demonstrated that he understood what was being said to him.
I accept PC Kogan’s evidence that while they were in the ambulance he had Mr. Matin’s attention and Mr. Matin had his attention when they spoke.
PC Kogan read Mr. Matin his rights to counsel in the ambulance. The information he read to Mr. Matin explicitly informed him that he had the right to free legal advice from a Legal Aid duty counsel lawyer.
PC Kogan told Mr. Matin “he had the right to retain and instruct counsel without delay” and that he could call any lawyer he wished. The right to counsel informed Mr. Matin he had “the right to free advice from a legal aid lawyer”. PC Kogan provided him with the Brydges duty counsel 1-800 number and told him “It is a number that will put you in contact with a legal aid duty counsel lawyer for free legal advice right now”.
After PC Kogan read Mr. Matin his rights to counsel, he asked Mr. Matin if he underst0ood and Mr. Matin said “I hear you yes.”
PC Kogan asked Mr. Matin if he wanted to call a lawyer. Mr. Matin said he did not have a lawyer.
Having regard to the context, I have no doubt that after being arrested for murder, and read his rights to counsel, Mr. Matin understood that he had the right to contact a lawyer, and if he did not have one, he could call duty counsel who was a free Legal Aid lawyer who could provide him with free legal advice. I do not accept that he had no memory of rights to counsel being read to him in the ambulance. Being informed he was arrested for murder and being read his rights was a significant event.
At the hospital, at 8:19 p.m. not long before his interaction with DC Leong, PC Kogan asked Mr. Matin if he wanted to call a lawyer and he said he wanted to call duty counsel. This demonstrated that he connected the concept of a lawyer and duty counsel.
Twenty minutes later, DC Leong told Mr. Matin he had duty counsel or duty on the phone and asked him if he wanted to speak with him. Mr. Matin did not ask who duty counsel was or ask for an explanation.
DC Leong was with PC Kogan, a uniformed officer, when Mr. Matin was moved from the CT scan room to the private hospital room. He was with PC Kogan outside of the glass hospital room. I do not accept Mr. Matin’s evidence that he did not realize or know that DC Leong was a police officer when he was dealing with him because he was in a blazer. I find as a fact that Mr. Matin understood when DC Leong told him he had duty counsel on the phone that this was directly related to his request to speak to duty counsel twenty minutes earlier. I am satisfied that when DC Leong entered the room and told him he had duty counsel (or duty) on the phone, Mr. Matin would have inferred that DC Leong was following up on his request to speak to duty counsel that he made minutes earlier to DC Kogan.
Mr. Matin did not ask who duty counsel was or ask for an explanation because he knew who duty counsel was. I also do not accept Mr. Matin’s evidence that he has no memory of speaking to PC Kogan about contacting a lawyer at the hospital. It was a significant conversation, one that would have been of import to Mr. Matin.
Before he started speaking to duty counsel, Mr. Matin asked DC Leong for water, which demonstrated his ability and willingness to communicate his concerns or requests with the police. At some point he asked to speak with his family. I do not accept Mr. Matin’s evidence that when DC Leong told him that he had duty counsel on the phone that he was too afraid of DC Leong to ask who duty counsel was. I do not accept that the negative experience he had with a police officer in June 2023 deprived him of the ability to communicate with DC Leong or PC Kogan. I am satisfied that both officers were professional throughout their dealings with Mr. Matin and that Mr. Matin demonstrated his ability to communicate with them.
I also accept that Mr. Melady told Mr. Matin he was a duty counsel lawyer with Legal Aid when he began speaking with Mr. Matin, as was his practice. Mr. Matin is an intelligent man, if he did not know who he was speaking to he would have asked “who is this”.
I find as a fact that at the end of the call, Mr. Matin gave DC Leong a thumbs up and told him the call was good. He made no complaint when DC Leong asked him if he was satisfied with the call. I find as a fact that Mr. Matin intentionally communicated to DC Leong that he was satisfied with the call.

208I find as a fact that when Mr. Matin spoke privately with Mr. Melady, he knew he was a duty counsel lawyer who the police put him in contact with to provide him free legal advice.

209I find as a fact Mr. Matin was not handcuffed during his call with duty counsel. I accept DC Kogan’s evidence that he did not handcuff Mr. Matin at any point because of his injuries. When Mr. Matin was placed in the private room, he had just come from a CT scan. He was being dealt with by medical staff. Detective Bulats took pictures of Mr. Matin in the hospital bed, and after refreshing his memory from the photos, testified that Mr. Matin was not handcuffed. Mr. Matin was unsure whether he was handcuffed when he spoke with duty counsel. I find as a fact that Mr. Matin was not handcuffed prior to his surgery on August 25, 2023.

Content of the Call

210Mr. Matin’s evidence about his call with duty counsel and whether he knew he was speaking to a lawyer is not reliable or credible. Mr. Matin frequently said he could not remember details of the events that night when asked for specifics, particularly in relation to any discussion about counsel. Mr. Matin omitted or failed to recall matters that detracted from his position that he did not know who the person he was speaking to was when he spoke to duty counsel.

Mr. Matin said he did not remember PC Kogan reading him his rights to counsel, which included referred to duty counsel, after he was arrested for murder.
He did not remember saying “I hear you, yes.”
Mr. Matin said he did not remember PC Kogan asking him if he wanted to call a lawyer and telling PC Kogan he did not have a lawyer in the ambulance.
Mr. Matin said he did not remember PC Kogan reading him the caution in the ambulance.
Mr. Matin said he had no memory of PC Kogan asking him at the hospital if he wanted to speak to a lawyer and telling him that he wanted to speak to duty counsel.
Mr. Matin said he did not remember DC Leong telling him that he had duty counsel on the phone, asking DC Leong for water, or DC Leong ensuring he and Mr. Melady could communicate with each other.
He said Mr. Melady did not identify himself to him.
Mr. Matin said he did not remember giving DC Leong a thumbs up sign at the end of his conversation or when DC Leong asked him about his call with duty counsel that he told him that it was all good.

211When it was put to Mr. Matin that he spoke to the officer from the ambulance (PC Kogan) at the hospital, he said he was not sure if it was the same police officer.

212When it was put to Mr. Matin that when the plain clothes officer put the phone beside him and told him “this is duty counsel.”, Mr. Matin said he did not remember. When it was suggested to Mr. Matin that the officer stayed in the room to make sure he and duty counsel could hear each other, he said he did not remember.

213When the Crown suggested to Mr. Matin that he told the officer he was having trouble speaking and asked for water, Mr. Matin said he did not remember if it was that person. When it was suggested to Mr. Matin that DC Leong told him he could not have water for medical reasons. He said he could not remember.

214When the Crown suggested to Mr. Matin that he knew the person he was talking to was a lawyer or duty counsel, he said he did not know who he was talking to. When the Crown suggested to Mr. Matin that he knew the person on the phone was not the nurses or doctors, for the first time Mr. Matin said he thought he was talking to the police, something he did not say in examination-in-chief.

215When the Crown suggested to Mr. Matin that the last thing the officer said to him before DC Leong came in with the phone was that he was setting up a call with duty counsel. Mr. Matin said he did not remember.

216When the Crown suggested to Mr. Matin that he did not ask the person on the telephone if they were a lawyer, Mr. Matin said he was not sure what he asked the person, but he remembered he asked two questions and the response was that he needed to find a lawyer. Mr. Matin said he did not remember what his questions were about.

217Mr. Matin said he could not remember if duty counsel told him he had the right to silence, that he did not have to talk to the police, that the police could use what he said as evidence, or that if he refused to speak to the police, they could continue to ask questions.

218Mr. Matin was vague about how the call unfolded, what duty counsel said, and what he said to duty counsel. He was vague about how the call ended. He said after the second time, the person told him he needed to get a lawyer and he was “not able to communicate with the person anymore”.

219While Mr. Matin responded to many questions in-examination in chief about whether certain topics were covered, responding that the matter was not discussed or he could not remember if it was discussed, he did not provide a clear narrative about what he did, remember about how the call unfolded, what was said to him, what he said, and how the call ended.

220When the Crown asked Mr. Matin whether he gave DC Leong a thumbs up after the call, Mr. Matin said he did not remember. He said he did not remember the officer asking how the call was or telling him it was “all good”. He did not deny it happened, but rather said he did not remember.

221I accept DC Leong’s evidence that Mr. Matin gave him a thumbs up and told him the call was good. This evidence contradicts Mr. Matin’s evidence that he felt confused and upset after the call or that he was not satisfied by it.

222I have considered Mr. Matin’s vulnerabilities that evening. He was injured, and awaiting surgery in the hospital. He had little experience with the police. He had just been arrested by the police for murder. However, he demonstrated his ability to hear, understand, and communicate throughout his dealings with police and EMS.

223I do not accept Mr. Matin’s evidence that he has no memory of any discussions about rights to counsel and contacting counsel or that he did not know who he was speaking to when he spoke with duty counsel. I do not accept his evidence about what transpired during the conversation. His evidence about the call and the events before and after the call was not credible or reliable.

224Mr. Melady does not remember the details of the call. Mr. Matin’s evidence is not reliable or credible. Mr. Matin and Mr. Melady’s evidence leaves me uncertain about why the call ended as quickly as it did, and I am unable to rely upon Mr. Matin’s account of the call. There are many reasons why the call may have been only two to three minutes in length. Mr. Matin may have been frustrated by duty counsel’s responses and may have told duty counsel that he wanted to end the call. Mr. Matin may not have cared whether or not he spoke with duty counsel. He had attempted to harm himself, and it is possible in the moment that he was indifferent to what would happen to him and did not want to continue his conversation with duty counsel or ask questions.

225Whatever the reason for the short duration of the call, I find as a fact that at the end of the call Mr. Matin communicated to the police that he was satisfied with the call by making a thumbs up gesture and, when DC Leong came in the room, and asked him about the call, he told him the call was good. Mr. Matin made no complaint to DC Leong, or any other officer about his contact with duty counsel and he made no request to have a further opportunity to speak with duty counsel or with another lawyer.

Assessment of Evidence of Mr. Melady and Brydges Duty Counsel System

226As Mr. O’Connor advised, the decisions a detainee makes in the early stages of a police investigation may significantly impact the charge the detainee is facing and their life. Brydges duty counsel are entrusted with the important duty of assisting detainees when they are vulnerable and in a position of legal jeopardy. Duty counsel have the responsibility of educating detainees about their Charter protected rights at a critical point in time and providing them advice about how to exercise their rights to assist them to avoid involuntary self-incrimination and to make informed choices about whether to cooperate with the police investigation. In addition, Brydges duty counsel provide an important lifeline. Brydges duty counsel may be the only means a detainee has prior to appearing in court to communicate their circumstances to friends and family, and to get assistance to prepare to appear in court.

227As highlighted by Mr. O’Connor, advice by any lawyer to a detainee following arrest should be tailored to the nature of the charge faced by the detainee and to the particular circumstances of the detainee, including any vulnerabilities of the detainee. The provision of advice by duty counsel should be interactive. It should not be a routine or rote matter, no matter how often the duty counsel lawyer provides advice. The advice should be tailored to the individual accused. There is good reason to believe that Mr. Melady did not fulfill his duties with the degree of care and diligence that should be expected of every lawyer, especially when dealing with an accused charged with the most serious offence in the Criminal Code.

228I find it surprising that Mr. Melady, a young lawyer who had only been working as duty counsel for three or four months, did not remember at least the fact of speaking to someone charged with murder. It should have been a significant event in the professional life of a young lawyer. Nonetheless, I accept that because of the paucity of notes Mr. Melady took and the thousands of calls he has responded to between August 25, 2023 and November 2025 that he does not recall the details of his conversation with Mr. Matin.

229Mr. Melady failed to properly document his contact with Mr. Matin. His notes are especially deficient given the gravity of the charge faced by Mr. Matin. The lack of notes suggests a failure by Mr. Melady to recognize the importance of his role in providing summary legal advice to Mr. Matin and his evidence suggests a lack of self-reflection regarding whether a more senior lawyer should have responded to the call. His record keeping was seriously deficient.

230Despite Mr. Melady’s failure to take proper notes, I am satisfied that he spoke to Mr. Matin and provided advice in keeping with his general practice in respect of the areas checked on the duty counsel form. I accept Mr. Melady’s evidence about his general practice and the information he provides detainees. I am satisfied that the duty counsel log and contents meet the requirements of past recollection recorded and form part of the evidence of Mr. Melady.¹⁰

231I am satisfied that during the call Mr. Melady provided summary legal advice to Mr. Matin that at a minimum covered:

His identity as a duty counsel lawyer;
Confirmation that Mr. Matin could speak in privacy.
Mr. Matin’s injuries.
Whether Mr. Matin had given a prior statement to the police
The Right to Silence and how to exercise the right.
Fingerprints, photographs, and hand swabs.
His appearance in court and bail.

232I find that Mr. Melady identified himself as a duty counsel lawyer with legal aide and that he confirmed that Mr. Matin could speak privately. From his conversation with Mr. Matin he was satisfied Mr. Matin had the ability to understand his advice, and he confirmed that Mr. Matin understood he was charged with murder. It would have taken only seconds for Mr. Melady to identify himself, confirm that Mr. Matin could speak in private, and to confirm that Mr. Matin understood he was charged with murder.

233I am satisfied that thereafter at a minimum Mr. Melady covered the following:

Mr. Melady inquired whether Mr. Matin had provided any statements to the police or if he told the police what happened.
He asked him if he was injured, but failed to record the response. Mr. Matin acknowledged in his evidence that he told Mr. Melady about his injuries.
Mr. Melady told Mr. Matin that he had the right to remain silent and that he did not have to speak to the police if he did not want to do so. He explained to him that any statement he made could be used against him. That he should not speak to the police at this time. If he wanted to make a statement he should wait to do so until after he has hired a lawyer, received disclosure of the police investigation and obtained advice. That he should not say anything and can exercise his right to remain silent by telling the police he wants to remain silent, that his lawyer told him not to answer police questions, and by removing himself from the conversation by ignoring the police questions or putting his head down and shutting his eyes. He should assume that he is always being recorded unless speaking to his lawyer and that the police might lie to him or trick him to try and make him speak.
That the police have the right to take fingerprints, photographs, and external swabs of skin, and he should comply with a police request for those things. He must comply but does not have to consent.
He is being held in custody for a show cause hearing, and the police must arrange for him to appear in court as soon as possible for a bail hearing. At court duty counsel can help him or he should get a lawyer to help with his bail hearing. If he does not have a lawyer, he should get one and he can make an application to legal aid to retain a lawyer. I find as a fact that Mr. Melady failed to appreciate that because Mr. Matin was charged with a s. 469 offence he could only be released upon application to a Superior Court Judge, and he likely gave Mr. Matin misleading information about his ability to seek bail.
He told Mr. Matin he could speak to a lawyer a second time if his jeopardy changed or if there are new charges or if the police are going to carry out certain investigative techniques like a strip search or taking penile swabs.
He asked Mr. Matin if he had any questions and responded to his questions.

234I find as a fact that during the call Mr. Melady told Mr. Matin he should retain a lawyer as soon as possible and I accept that he likely told Mr. Matin to get a lawyer more than once.

235As in Braithwaite¹¹, discussed below, Mr. Melady used the duty counsel log checklist to ask many of the same questions from case to case, and gave basic advice that does not vary from case to case. However, I also accept that in his evidence Mr. Melady made clear that each case has its own facts and circumstances and individual facts and circumstances are addressed, including through responses to questions asked by an accused.

236There was little opportunity during the short call for Mr. Melady to provide advice that was tailored to Mr. Matin’s circumstances. However, I find that it is likely that was driven in part because Mr. Matin was disinterested in engaging with Mr. Melady or asking questions. Mr. Matin indicated that after Mr. Melady responded twice that he should retain a lawyer, he was “unable to communicate with him” and the call ended.

237While as I will explain, s. 10(b) does not include a right to “effective assistance of counsel”, involving a qualitative assessment of the advice of duty counsel, despite the concerns raised by Mr. Melady’s failure to take adequate notes, and his apparent lack of appreciation of the seriousness of the circumstances, I am not satisfied on a balance of probabilities that this is a case where the advice amounted to no advice, or that the Applicant has established that the advice failed to meet the threshold of “basic competency”, as described in Braithwaite. Mr. Matin was able to invoke his right to counsel under s. 10(b) of the Charter.

Alleged Deficiencies Brydges Duty Counsel System

238There were extensive submissions made alleging serious deficiencies in the Brydges duty counsel system in Ontario. I reviewed extensive documents that were obtained by the Applicant through Freedom of Information Act requests, and via production order from Foundever and Legal Aid Ontario.

239From the cross-examination of Mr. Bacchus and the records, it is apparent that there are several matters that were agreed to in Schedule A to the July 19, 2019 contract between LAO and Foundever that have not been implemented or appear to fall short of what was agreed to by the parties. For example:

The July 1, 2019 Agreement Schedule 1 required that in addition to being in good standing with the Law Society, duty counsel “shall have a minimum of one year’s recent (in the last five years) experience providing advice in criminal law in Canada. Mr. Melady did not meet this requirement, and it appears other duty counsel lawyers with less than one year recent criminal experience were hired by Foundever/Sykes.
Targets for the time to respond to calls, and the percentage of calls answered live have repeatedly not been met. This is evident from the monthly reporting between Foundever and LAO.
The July 1, 2019 agreement indicated that the Service Provider will match serious matters to senior counsel. It does not appear there is any protocol in place for serious matters to be matched to senior counsel.

240Furthermore, the brevity of the average call time supports the inference that many duty counsel calls are brief. For example the average call length between September 2023 to December 2023 ranged from 7 minutes and 48 seconds to 8 minutes and 10 seconds.

241I was particularly concerned that Mr. Melady estimated his average time speaking to a client to be a couple of minutes or two minutes.

242However, I have not and should not infer that every Brydges duty counsel lawyer carries out their duties in the manner Mr. Melady carried out his duties.

243Brydges duty counsel are lawyers. Many are experienced criminal lawyers. (see Exhibit 15). They are subject to the Rules of Professional Conduct. It is strongly presumed that counsel's conduct falls within the wide range of reasonable professional assistance. My focus in determining the personal s. 10(b) application is on Mr. Matin’s personal s. 10(b) rights, and the events of August 25, 2023. I have not made any findings about the manner in which advice is provided by other Brydges duty counsel in the province of Ontario.

244While it is unnecessary to my conclusion in this matter, the evidence I heard identified clear areas for improvement in the Ontario duty counsel system, most significantly in ensuring that senior counsel are matched to serious matters like homicides. However, the evidence I heard on the personal s. 10(b) application did not establish that the Ontario Duty Counsel system is “manifestly deficient”.

D. Governing Legal Principles s. 10(b):

The Police Fulfilled their s. 10(b) Informational and Implementational Obligations

245 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.

246The Applicant bears the onus of establishing an infringement of his right to counsel under s. 10(b) on a balance of probabilities.

247The 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.” ¹² The right to counsel provides detainees with an opportunity to contact counsel to mitigate this legal disadvantage.

248The right to counsel is meant to assist detainees to regain their liberty and guard against the risk of involuntary self-incrimination by conferring a right to consult counsel “to obtain information and advice immediately upon detention” to support the detainee’s right to choose whether to cooperate with the police investigation or not by giving them access to legal advice on the situation the detainee is facing.¹³

249Stated at its broadest, the purpose of the right to counsel “is to provide a detainee with an opportunity to obtain legal advice relevant to his situation.”¹⁴

250Access to counsel is a matter of fairness; it informs the detainee of fundamental rights that may not be known or understood otherwise. For example, without access to counsel, many accused will not be aware of the constitutional right to remain silent and that they have a choice to speak or not speak. ¹⁵

251Furthermore, the right to counsel is a lifeline for detained persons. “Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.”¹⁶

252Under s. 10(b), the police must fulfill informational and implementational duties. Upon arrest or detention, the police must immediately inform a detainee of the right to counsel (the informational duty) and must provide detainees who invoke this right with a reasonable opportunity to exercise it (the implementational duty). The police must hold off further questioning until the detainee has had a reasonable opportunity to exercise their right to speak with counsel if they have expressed the desire to do so.¹⁷

253As established in Brydges and R. v. Bartle, the police must inform a detainee of the existence and availability of duty counsel and provide the means necessary to contact duty counsel. Duty counsel are intended to provide summary legal advice. Duty counsel provide immediate but temporary advice and assistance to those persons who cannot afford a lawyer, do not know a lawyer, or cannot reach their lawyer.¹⁸

254The Applicant did not allege that the police failed to comply with their informational duties, nor did they allege that the police failed to put Mr. Matin in contact with counsel at the first reasonably available opportunity. What the Applicant alleges is that the contact with duty counsel was so obviously deficient that it triggered a duty on the police to take further steps to implement Mr. Matin’s right to counsel and that the police failure to take further steps to implement the right to counsel, together with the deficient advice provided by Mr. Melady, violated Mr. Matin’s right to counsel under s. 10(b) of the Charter.

255The Applicant also alleges that the police were required to provide a second opportunity to Mr. Matin to consult counsel before taking fingerprints, photographs, and swabs of Mr. Matin’s hands.

256I am satisfied that the police fulfilled their informational and implementational duties under s. 10(b). PC Kogan informed Mr. Matin of the reason for his arrest and his rights to counsel immediately upon arrest. PC Kogan and DC Leong facilitated contact with duty counsel at the first reasonably available opportunity.

257As noted above, whatever the reason for the short duration of the call, I find as a fact that at the end of his call with duty counsel, Mr. Matin communicated to the police that he was satisfied with the call. Mr. Matin made no complaint to any police officer about his contact with duty counsel, and he made no request to have a further opportunity to speak with duty counsel or another lawyer.

258I am concerned with Mr. Melady’s lack of diligence and thoroughness in documenting the advice he provided to Mr. Matin. However, for reasons I have set out below, the advice of Mr. Melady does not attract Charter scrutiny because he is not a state agent. The quality of advice he gave is not subject to constitutional scrutiny. However, even if the quality of advice of duty counsel were to attract Charter scrutiny, Mr. Matin has failed to establish on a balance of probabilities that Mr. Melady’s advice was so deficient that it violated s. 10(b) of the Charter.

259There was no duty on the police to monitor the advice given by Mr. Melady to Mr. Matin, and there was nothing that occurred that triggered a duty on the police to provide Mr. Matin with a second consultation with counsel due to a change in circumstances.

No Duty on Police to Monitor Quality of Duty Counsel Advice or to Provide a Second Consultation

260The police can typically discharge their implementational duties by facilitating a single consultation with counsel at the time of detention or shortly thereafter. Recently, in Dussault, the Supreme Court of Canada stated: “In this context the, the consultation is meant to ensure that “the detainee’s decision to cooperate with the investigation or decline to do so is free and informed”: para. 26. A few minutes on the phone with a lawyer may suffice, even for very serious charges: see R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429.” [Emphasis added].¹⁹

261Section 10(b) aims to ensure detainees the opportunity to be informed of their rights and obligations. However, unless a detainee communicates diligently and reasonably that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel.²⁰

262While s. 10(b) requires the police to afford a detainee a reasonable opportunity to contact counsel and to facilitate that contact, it does not require the police to monitor the quality of the advice once contact is made. The solicitor client relationship is one of confidence, premised upon privileged communication. Respect for the integrity of this relationship makes it untenable for the police to be responsible, as arbiters, for monitoring the quality of legal advice received by a detainee. To impose such a duty on the police would be incompatible with the privileged nature of the relationship. The police cannot be required to mandate a particular qualitative standard of advice, nor are they entitled to inquire into the content of the advice provided.²¹

263That being so, in LaFrance, the Supreme Court of Canada made clear that the police have a duty to watch for signs that an accused has misunderstood the advice provided by counsel and where it appears this is the case, to provide an accused with a further opportunity to consult with counsel.²²

264In Sinclair, the Supreme Court of Canada suggested that, absent a change in circumstances, section 10(b) is satisfied by an initial warning coupled with a reasonable opportunity to consult counsel. Once a detainee has consulted with counsel, police are only exceptionally obligated to provide a further opportunity to an accused to receive legal advice.²³

265In Sinclair²⁴ and subsequently in LaFrance, the Supreme Court of Canada explained that “changed circumstances” can renew a detainee’s right to consult counsel.

266The Supreme Court has identified three circumstances when a second consultation with counsel may be required:

i.) Where the police ask a detainee to participate in a non-routine procedure that is not within the expectation of the initial advising lawyer;

ii.) Where the detainee’s jeopardy changes because the investigation takes a more serious turn; and

iii.) Where there is a reason to believe the detainee did not understand their initial advice or the first information provided was deficient.²⁵

267For any of the “changed circumstances” to give rise to a right to reconsult, they must be “objectively observable”.²⁶ In Sinclair, the Supreme Court of Canada explained at paras. 55 and 57:

The change of circumstances, the cases suggest, must be objectively observable in order to trigger additional implementational duties for the police. It is not enough for the accused to assert, after the fact, that he was confused or needed help, absent objective indicators that renewed legal consultation was required to permit him to make a meaningful choice as to whether to cooperate with the police investigation or refuse to do so.

[...] It is assumed that the initial legal advice received was sufficient and correct in relation to how the detainee should exercise his or her rights in the context of the police investigation. The failure to provide an additional opportunity to consult counsel will constitute a breach of s. 10(b) only when it becomes clear, as a result of changed circumstances or new developments, that the initial advice, viewed contextually, is no longer sufficient or correct. This is consistent with the purpose of s. 10(b) to ensure that the detainee's decision to cooperate with the police or not is informed as well as free. [Emphasis added]

268The failure to provide an additional opportunity to consult counsel will constitute a breach of s. 10(b) only when it becomes clear because of changed circumstances or new developments, that the initial advice, viewed contextually, is no longer sufficient or correct.²⁷

269Mr. Matin spoke privately with duty counsel for two to three minutes. After the call, Mr. Matin gave DC Leong a thumbs up and confirmed the call was good.

270In the circumstances of this case, the police were not required to take further steps to implement the right to counsel. They were not required to offer Mr. Matin a second contact with counsel. Although the call was short, after the call, Mr. Matin communicated he was satisfied by giving DC Leong a thumbs up and confirming that the call was good. He made no complaint about his contact with counsel. He did not request further contact with counsel. He did not express any dissatisfaction or raise any issue with respect to his call with duty counsel. Nothing transpired that indicated to the police that Mr. Matin did not understand the legal advice he received or was dissatisfied with it. There were no objectively observable circumstances that obligated the police to take further steps to implement Mr. Matin’s right to counsel. If he was dissatisfied, Mr. Matin failed to communicate this diligently and reasonably. The police were not required to probe further into his conversation with counsel.

271In his evidence on the voir dire, Mr. Matin did not suggest that he communicated to the police in any way that he did not know who he was speaking with, that he did not understand what was said to him, that he was dissatisfied with his contact with duty counsel, or that he wanted to speak to another lawyer.

272Even though the call was short, the officer’s conclusion that Mr. Matin was content with his contact with duty counsel was entirely reasonable. The police were not just assuming that all was well. Mr. Matin communicated to DC Leong that all was well.

273I have considered that Mr. Matin was in hospital, was injured, and stressed by his arrest and the circumstances surrounding his arrest. However, Mr. Matin led the police to believe that everything was fine and that he was satisfied with his right to counsel. Mr. Matin cannot tell the police it is “all good” and then subsequently complain that the police violated his s. 10(b) rights by failing to take further steps to implement his right to counsel.²⁸

274The police cannot infer that a consultation was insufficient merely because it was brief. In Willier, the Supreme Court of Canada stated as follows at paras. 40 and 41:

We are also unable to agree with Mr. Willier’s claim that his consultations with duty counsel were insufficient to satisfy his right to a reasonable opportunity to contact counsel under s. 10(b), as they did not amount to a meaningful exercise of that right. Echoing the trial judge’s finding on voir dire, he asserts that the inadequacy of his two consultations with Legal Aid is to be inferred from their brevity, and thus they were insufficient to suspend the police duty to hold off in their questioning. Effectively, his argument implies that the police must ensure that a detainee’s legal advice meets a particular qualitative standard before they are entitled to commence with an investigative interview.

While s. 10(b) requires the police to afford a detainee a reasonable opportunity to contact counsel and to facilitate that contact, it does not require them to monitor the quality of the advice once contact is made. The solicitor client relationship is one of confidence, premised on privileged communication. Respect for the integrity of this relationship makes it untenable for the police to be responsible, as arbiters, for monitoring the quality of legal advice received by the detainee. To impose such a duty on the police would be incompatible with the privileged nature of the relationship. The police cannot be required to mandate a particular qualitative standard of advice, nor are they entitled to inquire into the content of the advice provided. Further, even if such a duty were warranted, the applicable standard of adequacy is unclear. As this court recognized in R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 27, there is a “wide range of recognized professional assistance”, and as such what is considered reasonable, sufficient, or adequate advice is ill defined and highly variable.²⁹ [emphasis added]

275DC Leong and PC Kogan were not mind readers and could not know the unexpressed thoughts of Mr. Matin. They were not required to speculate on the brevity of the call and were prohibited from inquiring about its content because of its privileged nature. As indicated in Willier, “unless a detainee indicates diligently and reasonably, that the advice he or she received was inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview.” As in Willier, Mr. Matin gave no indication that his consultation was inadequate. Quite the contrary, he expressed his satisfaction to DC Leong.³⁰

276In R. v. Beauregard³¹, the accused, following his arrest for robbery, was placed in a private telephone room with a list of twenty lawyers, the number for Legal Aid, a phone book, and a phone to exercise his right to counsel. After five minutes, the officer noticed that the accused was off the phone. The officer entered the room and asked the accused if he was done and he replied yes. He was then placed in the cells and subsequently interviewed the next morning. He gave an inculpatory statement. At trial, the trial judge concluded that during his time in the telephone room, the accused had not contacted a lawyer. He had called his mother. The trial judge found that the police officer never explicitly asked the accused if he had talked to a lawyer and the accused never told the officer he had not spoken to a lawyer.

277The trial judge concluded there was a breach of the implementational component of s. 10(b) because the officer did not confirm that the accused had spoken to a lawyer. The trial judge stated “A detainee who has been unable to reach a lawyer after five minutes, and who is asked by a police officer, ‘Are you done’, may well feel pressure to wrap it up and may not have the fortitude to ask for more time or may not realize they are entitled to a reasonable opportunity to reach counsel, and more time if their initial attempts are unsuccessful.” ³²

278The Alberta Court of Appeal concluded that the trial judge erred in finding there was a breach of s. 10(b). The Court of Appeal found that there was no positive duty on the police to confirm that the accused had spoken to counsel. The Court held that when the respondent wanted to speak to a lawyer, he was placed in a telephone room. “The only reasonable inference is that the purpose of his being put into the room was to contact counsel. When Constable Simard asked him if he was ‘done’, the only thing that question could have referred to was the contacting of counsel. When the respondent replied ‘yup’ that answer could not reasonably be interpreted as ‘No, I never contacted counsel.’ The police are entitled to act on what the detained person tells them, analysed objectively.” ³³

279The Court of Appeal held that the onus was on the detained person to make it clear that he had not succeeded in contacting counsel and wished to have another opportunity. Nothing the accused said or did alerted the police to the fact the accused had not actually contacted counsel and concerns, if any, the accused may have had about asking for more time were not communicated to the police. The Court of Appeal held there was no positive duty on the police to ask if the accused had been successful in contacting counsel and no breach of s. 10(b).

280In this case, unlike Beauregard, DC Leong knew for certain that Mr. Matin spoke with duty counsel. DC Leong spoke to duty counsel. He ensured that Mr. Matin and Mr. Melady could communicate with each other before he left the room.

281At the end of the call, when Mr. Matin gave DC Leong a thumbs up and Mr. Matin told him the call was “all good”, like in Beauregard, there was no basis for DC Leong to conclude that Mr. Matin was dissatisfied with his contact with duty counsel. His answers did not communicate any dissatisfaction. DC Leong was entitled to act on what Mr. Matin told him. The only reasonable inference, even taking into account the brevity of the call and Mr. Matin’s circumstances, was that Mr. Matin was satisfied with his contact with duty counsel and exercised his right to counsel.

282The Applicant placed reliance on R. v. Osmond³⁴, a decision from the British Columbia Court of Appeal in which the Court imported into s. 10(b) the necessity that a detainee receive “effective” legal advice. In Osmond, the Court of Appeal scrutinized the advice the accused received and drew negative inferences from its brevity. I agree with the conclusion expressed in the authoritative textbook, Detention, Arrest, and the Right to Counsel, where the authors conclude that Osmond is not good law: “…Osmond predates and is inconsistent with the governing Supreme Court jurisprudence from cases like Willier and R. v. Sinclair. The Court in Osmond also focused on the advice that was actually conveyed, as opposed to what the police could have reasonably believed. Consequently, the Osmond decision should not be relied on in relation these issues going forward.”³⁵

No Basis For Police to Believe Mr. Matin did not Understand the Initial Advice or the First Information Provided was Deficient

283This is not a circumstance, as in Lafrance, where the police had an obligation to offer a second consultation because something the accused said or did created a basis for the police to believe that Mr. Matin did not understand the initial advice he received or to believe that it was deficient.

284In Lafrance, the accused was an unsophisticated 19-year-old Indigenous man. He had no prior criminal record and minimal past exposure to the police. The Court concluded he was vulnerable.

285He was being investigated for murder and was initially detained and interviewed for three hours after the police executed a search warrant at his home.

286He was informed that he was a suspect but was not provided with his right to counsel and did not speak with a lawyer.

287Three weeks later, Mr. Lafrance was arrested for the murder and questioned again by police. He spoke briefly with duty counsel and told police he was satisfied with the call. However, during the interview he asked to speak with his father, who he said was the only person who could get him a lawyer.

As the tone of the interview shifted, Mr. Lafrance asked to speak with his father before continuing to answer Sgt. Eros questions. When Sgt. Eros asked him why, Mr. Lafrance explained that his father was his “only chance of getting a lawyer” and that he wanted a lawyer before going forward with anything else. He said that Legal Aid told him “to get a lawyer before [he] continue[s] talking’ to sit down and talk about his situation…In response, Sgt. Eros explained that “he” ha[d] no problem” letting him talk to his father…but that Mr. Lafrance had already spoken to a lawyer. Mr. Lafrance, he said, may have misinterpreted the advice and so he explained to Mr. Lafrance that he could not have a lawyer present in the room with him during the custodial interview. Sgt. Eros testified, however, that he was satisfied that Mr. Lafrance understood his right to silence and his legal advice.³⁶

288The majority of the Supreme Court of Canada examined the exchange between Mr. Lafrance and the police officer and concluded that what Mr. Lafrance was expressing in asking to talk to his father because his father was his “only chance of getting a lawyer” was an opportunity to get, and to speak to a lawyer. The majority concluded that from the exchange there were clear signs that either the legal advice he obtained was incorrect or he did not understand how his s.10(b) rights applied to his current circumstances. The Supreme Court observed that the exchange with the officer indicated that either Mr. Lafrance had incorrectly interpreted the advice he received or, as Sgt. Eros hinted at, that he had received bad advice. ³⁷

289In Lafrance, factually, there were objective indicators from what Mr. Lafrance said in the interview that Mr. Lafrance misunderstood or misinterpreted the advice.

290The Supreme Court of Canada found that on the day of the second interview the police initially fulfilled the informational and implementational component of the right to counsel by putting Mr. Lafrance in contact with duty counsel. The breach of s.10(b) arose because the police did not provide Mr. Lafrance a second opportunity to speak to a lawyer when it became apparent from what he said, considered in the context of his personal circumstances as a vulnerable accused, that he did not understand the initial advice he was given.

291The Supreme Court of Canada stated as follows at para. 85 regarding the critical exchange between the officer and Mr. LaFrance:

This represents to my mind, a critical moment in Mr. Lafrance’s encounter with the police. Faced with a detainee who was obviously ignorant of his rights, Sgt. Eros had a choice: to press ahead with the interview, whether despite or because of that ignorance; or to allow the subject an opportunity to clarify his rights and how to exercise them in his circumstances. Sgt. Eros chose the former course; the Constitution demanded the latter.³⁸

292The Supreme Court concluded that it was apparent that the accused did not fully understand his rights and needed assistance. The Court held that “a changed circumstance” can arise “when there is reason to question the detainee’s understanding of his s. 10(b) right”. The Court stated: “That is this case. His confusion was an “objective indictor that renewed legal consultation was required to permit him to make a meaningful choice as to whether to cooperate with the police investigation or to refuse to do so.”³⁹

293In this case, there was no reason for the police to believe Mr. Matin did not understand the initial advice he received during his conversation with duty counsel. There was no tangible indicators that the advice was misunderstood or inadequate.⁴⁰ Mr. Matin was never interviewed. Nothing was said in an interview or at any other time that was an objective indicator that renewed consultation was required.

294If Mr. Matin had been interviewed, and if for example he said that he did not know who he was speaking with (during the duty counsel call) or that duty counsel told him he had no choice and had to answer the questions, or that duty counsel refused to answer his questions, or that the call was disconnected, the police would in such circumstances have had an obligation to provide him a further opportunity to contact a lawyer. Those are not the facts of this case.

295PC Kogan and DC Leong diligently implemented Mr. Matin’s right to counsel. They did nothing to impede consultation or to otherwise undermine the right to counsel. Mr. Matin communicated with a thumbs up gesture and by stating that the call was all good that he was satisfied with his call. There were no changed circumstances, no objective indicators that Mr. Matin did not understand the advice he received or that it was deficient, that required the police to provide Mr. Matin with an additional opportunity to contact counsel.

No Requirement for Further Consultation Due to Non-Routine Procedures

296The Applicant submitted that the police were required to provide Mr. Matin with a further opportunity to consult with counsel before taking fingerprints, photographs, and external swabs from Mr. Matin’s hands.

297As noted above, the police are required to provide the accused with a further opportunity to consult with counsel where there has been a change in circumstances such that the police can no longer assume that the detainee received “legal advice relevant to [their] right to choose whether to cooperate with the police investigation.” This can arise as a result of non-routine investigative procedures. A procedure will be non-routine in the sense of triggering the opportunity to re-consult when it could not have reasonably fallen within the expectation of the advising lawyer at the time of the initial consultation.⁴¹

298Examples of non-routine procedures include penile swabs, strip searches, line-ups, and polygraph testing.⁴²

299After the call with duty counsel, the police routine investigative procedures, including seizure of Mr. Matin’s clothing incident to arrest, taking photographs, and taking swabs from Mr. Matin’s hands did not require the police to provide Mr. Matin with a second opportunity to consult with a lawyer. These are standard procedures that do not require the accused's consent, cooperation or participation.⁴³

300In Madison, like in this case, the defence argued that the accused’s s. 10(b) rights were breached because the accused, charged with murder, was subjected to “new procedures”, specifically photographing the accused, swabbing his fingers, and seizing his clothing, without being given a further opportunity to consult with counsel. Justice Dambrot concluded that photographing the accused, swabbing his fingers and seizing his clothing were routine procedures that did not trigger a renewed right to speak with counsel.⁴⁴

301As pointed out by Mr. Hechter, in Madison Justice Dambrot noted that the accused was informed by police that his hands would be swabbed prior to his contact with counsel. I agree that in this case Mr. Matin was not informed that his photographs would be taken and his hands would be swabbed prior to his contact with duty counsel. However, that does not transform a routine procedure into something non-routine, nor does the reasoning in Sinclair or LaFrance stipulate that there will be a renewed opportunity to speak with counsel if the police do not discuss routine procedures that may follow with an accused before they speak to counsel. The reasoning in Sinclair behind a detainee being entitled to a second contact with counsel where a non-routine procedure is to be employed is that counsel cannot be expected to have addressed non-routine procedures when speaking to a detainee.

302Subsequently, in R. v. Pietz, the Manitoba Court of Appeal, citing Madison, concluded that photographing a detainee, swabbing their fingers, asking to see their hands, and seizing evidence found on their person, including their clothing, are routine procedures and do not trigger the right to a second consultation with counsel.⁴⁵

303Mr. Matin was not strip searched, nor does he allege that he was. Mr. Hechter confirmed in submissions he was not alleging that there was a strip search.

304There were no non-routine procedures or tactics employed by the police that required the police to provide Mr. Matin with a second opportunity to contact counsel. Aside from the routine procedure of collecting photographs, and external swabs from Mr. Matin’s hands, not only were there no non-routine investigative steps taken by the police, no investigative steps involving Mr. Matin were taken in the period following his arrest. There was no attempt to interview Mr. Matin.⁴⁶

E. Duty Counsel is not A State Actor

305Mr. Melady in giving advice to Mr. Matin was not a state actor and his conduct is not subject to Charter scrutiny. Section 10(b) of the Charter does not guarantee the quality of counsel.

306The issue of whether duty counsel advice is subject to Charter scrutiny has been considered by numerous previous courts. Courts have consistently held that duty counsel is not a state actor, and the advice given by duty counsel is not subject to Charter scrutiny. Deficient duty counsel advice is not a basis upon which a Court can find a breach of an accused’s s. 10(b) rights because duty counsel are not state actors. R. v. Braithwaite, [2002] O.J. No. 1955 (S.C.); R. v. LaChappelle, 2007 ONCA 655, 229 O.A.C. 206, at para. 44.; Pea; [R. v. Beierl, [2009] O.J. No. 2708 (S.C.), aff’d 2010 ONCA 697; R. v. Egwu, 2023 ONSC 3326.

R. v. Braithwaite, [2002] O.J. No. 1955 (S.C.) [“Braithwaite”]– s. 10(b) of the Charter Does not Guarantee Quality Legal Assistance

307Braithwaite was a summary conviction appeal. The police stopped the accused to investigate him for drinking and driving. He failed a roadside screening device. He was arrested for “over 80”. He was read his right to counsel and taken to the police station to provide breath samples into an approved instrument.

308The accused spoke to duty counsel in private at the police station prior to providing samples. The accused testified that his conversation with duty counsel lasted for under sixty seconds. He said that the duty counsel made no inquiries about any of the circumstances surrounding the stop by the police. He said all the duty counsel told him was that he had to take the breathalyzer test or his license would be suspended immediately for one year. He said he did not ask any further questions of duty counsel because he was not satisfied with the advice he had been given.

309The duty counsel gave evidence about his conversation with the accused. Like this case, his recollection of the conversation was based on a check list he completed at the time of the conversation. He said the conversation with the accused lasted for approximately four minutes. This was accepted by the trial judge. The duty counsel said he covered issues such as the respondent’s right to remain silent, whether the respondent had made any statements, issues about bail, and release procedures. He said he would have told the respondent that refusing to provide a breath sample includes an automatic 90-day license suspension. The duty counsel said his understanding was that he should not tell persons not to blow because of the concern it may constitute counselling an offence. He said “essentially the practice should be to advise somebody that if there aren’t reasonable and probable grounds, that could provide a defence if they choose not to blow”.

310The duty counsel testified that he did not tailor the information he provided to the client and generally went through the same checklist with every person. However, he said depending on the questions of the client, he might “get into something further”. He subsequently agreed that there may be specifics to a case that have to be dealt with, and he did so on a case-by-case basis, based on the information he received.

311The trial judge accepted the version of events given by duty counsel over the version of events given by the accused. However, the trial judge held that the advice given by duty counsel amounted to no advice at all. He found the advice and questioning that duty counsel undertook was at best a minimal attempt at meaningful advice. The trial judge found that duty counsel relied on information from the arresting officer, failed to ask questions of the accused, and made no investigation of the night’s events. He found that duty counsel gave the accused instructions about police procedures and told him to blow into the breathalyzer instrument. He concluded that duty counsel gave the same advice to everyone on the basis of fear he could be charged by telling the accused not to blow into the approved instrument.

312The trial judge held that the duty counsel advice amounted to no advice at all “especially when there is no inquiry as to the elements of the offence or the circumstances that might support a reasonable excuse”. He concluded that on a balance of probabilities, the accused’s right to counsel was infringed because i.) the accused received incompetent legal advice; and ii.) the state is instrumental in providing and facilitating that legal advice.” The trial judge excluded the breath sample results under s. 24(2) of the Charter and entered an acquittal. The Crown appealed.

313The appeal was heard by Nordheimer J., as he then was. The three issues considered on the appeal were i.) whether the conclusion that the advice given was tantamount to no advice such that the accused’s 10(b) rights to counsel were violated was correct; ii.) whether the Charter can be invoked in respect of advice given by duty counsel to an individual; and iii.) whether the remedy was appropriate in the circumstances.

314Nordheimer J. allowed the appeal and ordered a new trial. First, he found that the trial judge mischaracterized the evidence of the duty counsel lawyer and found that he did not say he gave the same advice in every case, but rather, that he asks the same questions of everyone as outlined in the checklist he uses, and gives basic advice that does not vary from case to case. However, he made it clear that each case had its own facts that had to be dealt with. Nordheimer J. agreed with duty counsel’s approach where he might be inclined to advise the person not to blow.

315Nordheimer J. held that it was not a case that could be characterized as being equivalent to the accused not having been given advice at all. “There were a number of topics covered including the right to remain silent, whether the defendant had made a statement and like matters.”

316Nordheimer J. held “The simple fact of the matter is that the defendant was clearly able to invoke his right to counsel under s.10(b) of the Charter”. As a result, Nordheimer J. concluded that the trial judge erred when he found that the advice the accused received was the equivalent of no advice and therefore, a breach of s. 10(b) had occurred.

317Nordheimer J. then considered whether the trial judge was correct in holding that the Charter applied because “the state is instrumental in providing and facilitating that legal advice” and that “the state is in some way responsible for the advice that is given”. Nordheimer J. made a number of significant findings.

318First, he emphasized that the defence proposition that the Charter applied to deficient duty counsel advice would result in a situation where a person who received inadequate advice from duty counsel would have a Charter remedy, but a person who contracted a private lawyer and received inadequate advice would not.

319Secondly, he held that to turn the right to counsel into a guarantee by the state of the advice given “is a significant extension of the right granted by section 10(b) which I do not consider is warranted”.

320Nordheimer J. concluded that to find that the state warrants advice given whenever it is “instrumental” in providing or facilitating that advice, it would follow that the state would become responsible for the quality of all advice given by any lawyer who acts on a Legal Aid certificate.

321Nordheimer J. concluded that the Charter does not guarantee the quality of counsel. He stated as follows:

I do not believe that section 10(b) of the Charter should involve the court in embarking on a qualitative analysis of the advice given. Section 10(b) of the Charter guarantees the right to counsel. It does not guarantee the quality of the counsel (except, perhaps, for basic competency) or of his or her advice.

322Nordheimer J. did not elaborate on what was meant by “perhaps, for basic competency”. However, given his findings that this was not a case where counsel lacked basic competency, the comment was obiter. Furthermore, as set out below, the Court of Appeal subsequently held in Beierl that, it would be contrary to the Court’s findings in Pea, to conclude that duty counsel is a state actor required to give competent legal advice, and held that duty counsel is not a state actor.

323Nordheimer J. indicated that Bartle and Brydges are the leading cases on the subject and they require that a detainee be provided:

i.) with information about the existence and availability of duty counsel, and

ii.) the means necessary to access such services.

324Nordheimer J. held it was inappropriate to hold that advice that “may not have been the best or most perfect advice that was capable of being given” is a breach of the right to counsel, particularly where the advice given is preliminary and in circumstances where the range of advice that can be given is “limited”.

325As a result of his findings, that the trial judge erred in finding a violation of the accused’s s. 10(b) right to counsel. Nordheimer J. allowed the appeal, set aside the acquittal and the matter was remitted to the Ontario Court of Justice for a new trial.

R. v. LaChappelle (2007), 2007 ONCA 655, 229 O.A.C. 206

326Mr. LaChappelle was charged with impaired driving causing death, impaired driving causing bodily harm, and “over 80” following an accident in which he allegedly crossed the centre line and collided with another vehicle, killing the driver and seriously injuring the passenger. Mr. LaChappelle was also injured. He was taken to hospital by ambulance. Blood was seized from him at the hospital. While at the hospital, he spoke with duty counsel. After speaking with duty counsel, he was arrested for impaired causing death. He provided samples of his breath.

327At trial, he alleged several Charter violations including that his right to counsel was violated because he did not receive competent advice from duty counsel. The trial judge concluded that the accused had received competent advice about the breath samples but had not received competent advice about blood samples. In considering the issue, the trial judge used the two-part test for ineffective assistance of counsel, whether the accused had received ineffective assistance, and whether it had resulted in significant prejudice to the fair trial. The trial judge concluded that the accused was not prejudiced because the blood samples were already sealed at the point he received the legal advice and there was no evidence that indicated he could have asked the hospital to destroy the blood sample even if counsel had advised him to request that it be done.

328Rosenberg J.A., writing for the Court of Appeal, indicated that the issue of whether a detainee’s s. 10(b) rights are violated because he or she did not receive competent advice from duty counsel was one of first impression. For the purposes of the analysis, Rosenberg J.A. assumed that if an accused received incompetent advice from duty counsel that it was a breach of s. 10(b), but indicated that he should not be taken as having decided the issue because “the issue is a complex one that would require an analysis of the relationship between the duty counsel programme and the state’s s. 10(b) obligations”.

329Rosenberg J.A. held that assuming the Appellant was right that the provision of incompetent advice could result in a finding of a s. 10(b) violation, that because no evidence was obtained from the violation, “there was no basis for invoking s. 24(2) of the Charter and possibly excluding the results of the blood test”. Relying on R. v. Strachan⁴⁷, Rosenberg J.A. concluded that because the trial judge found that the vials had already been sealed and were no longer within the appellant's control when he finished talking to duty counsel, “There was no factual or temporal connection between the alleged breach and the obtaining of the evidence; the evidence had already been obtained before the alleged breach of the appellant's rights because of the incompetent legal advice”.

R. v. Pea (2008), 2008 CanLII 89824 (ON CA), 93 O.R. (3d) 67 (C.A.) – Incompetent Duty Counsel Advice (not to blow) does not equal Officially Induced Error

330In Pea, after failing a roadside screening test, the Appellant was arrested and given a breath demand. He was provided with his rights to counsel and spoke with duty counsel. Duty counsel told him not to give breath samples and “to reject the police request to do anything”. Pea refused to give further breath samples and was charged with refusing to provide a breath sample. The accused plead not guilty at trial and sought a stay of proceedings on the basis of an officially induced error.

331The trial judge rejected the defence and held that duty counsel was not a government official. The Appellant was convicted. His summary conviction appeal was dismissed.

332On appeal to the Ontario Court of Appeal, at issue was whether duty counsel was a government official for the purpose of the defence of “officially induced error”.

333No evidence was adduced at trial as to how the duty counsel system is organized and funded. However, the trial judge took judicial notice of several basic facts including that no fee is charged to individuals who contact duty counsel. The trial judge held that neither the fact that the police are obliged to facilitate access to duty counsel nor that duty counsel is paid by public money caused duty counsel to become a government official. The accused was found guilty.

334Gillese J.A. denied leave to appeal, because there was no merit to the assertion that duty counsel was a government official stating as follows at paras. 19 and 20:

Like the trial judge and the summary conviction appeal judge, I see the solicitor-client relationship between duty counsel and a detainee to be very similar to the relationship between a privately retained lawyer and a detainee. In that regard, I agree with the emphasis that the judges below placed on the fact that detainee’s conversation with duty counsel is protected by the same solicitor-client privilege as that which governs other solicitor-client relationships.

In Lévis, the Supreme Court described a government official, for the purpose of officially induced error, as "an authorized representative of the state" - that is, a person with the power to speak on behalf of the government. In providing legal advice protected by solicitor-client privilege, duty counsel does not speak on behalf of the government or give official approval to conduct. Rather, duty counsel offers the detainee legal options and advice based on the available information. Far from being “an authorized representative of the state”, duty counsel is an independent source of legal assistance in the detainee’s confrontation against the state. Even the physical requirements emphasize this differentiation in that a detainee’s consultation with duty counsel must be confidential and take place in private, away from the eyes and ears of the police.

335Gillese J.A. did not accept that duty counsel becomes a “government official” simply as a result of being paid by public money or because police are obligated to facilitate a detainee’s contact with duty counsel. She found those factors did not diminish the fundamental nature of the relationship that exists between the detainee and duty counsel.

336Gillese J.A. held that it would be inconsistent for mistake of law to be a valid defence for those who speak to duty counsel but for the same defence to be unavailable for those who speak to privately retained lawyers. “As a matter of criminal law policy, it cannot be right that some persons could avoid conviction simply because they received erroneous advice from duty counsel instead of a private retained lawyer.”

337In Pea, the Court of Appeal, citing LaChappelle, indicated that it was an open question as to whether a detainee’s s. 10(b) right to counsel is violated if he or she is not given competent advice by a duty counsel, something that was not before the Court.

338Gillese J.A. denied leave to appeal.

R. v. Beierl, [2010] O.J. No. 2708 (S.C.), leave to appeal refused, 2010 ONCA 697, leave to appeal refused, [2011] S.C.C.A. No. 33997 – No Qualitative Component to Right to Counsel

339In Beierl, the accused was stopped at a RIDE Stop program and failed a roadside screening device. He was arrested and a demand was made for a sample of his breath. He was advised of the right to counsel and provided with information about the availability of duty counsel. He spoke with duty counsel by phone and received advice not to provide a breath sample. It was bad advice which he followed. As a result he was charged and convicted with failure to provide a breath sample.

340On summary conviction appeal, he argued his right to counsel was infringed because he received incompetent advice from counsel. “He says the state provided and funded the duty counsel and must take responsibility for the bad advice dispensed”. He sought the exclusion of the evidence of his refusal under s. 24(2) as a remedy.

341At trial in the Ontario Court of Justice, Bourque J. concluded that s. 10(b) does not require a qualitative analysis of the advice given and will not be engaged unless it can be demonstrated that the advice was the equivalent of no advice or the quality of duty counsel falls below the standard of basic competency.

342The trial judge found that the duty counsel had an 11 minute phone call with the accused and that although the advice given was wrong, it did not amount to no advice. Further, the Appellant had not made out the case on a balance of probabilities that duty counsel’s quality fell below a standard of basic competence.

343On summary conviction appeal, Boswell J. held that duty counsel are not agents of the state and there is not a qualitative component to the right to counsel –the right to counsel does not guarantee advice from a counsel meeting at least a minimum standard of competence.

344The Appellant, citing Braithwaite, urged the Court to find that the right to counsel requires counsel to meet a minimum quality standard and to find that when advice given by duty counsel amounts to no advice, a Charter breach occurs.

345Foundational to the argument was that the conduct was state conduct because the police referred the accused to duty counsel or because duty counsel is state organized and funded, and therefore the state must take responsibility for the advice given. Consideration of the relationship between the duty counsel program and the state’s 10(b) obligations was central to the decision.

346The duty counsel lawyer testified at trial. He was employed by Sykes Canada Corporation contracted by the Ontario Legal Aid Program to provide 24 hour duty counsel service. The evidence was that the service was funded entirely by Legal Aid Ontario.

347Boswell J. concluded that duty counsel are not agents of the state, stating: “Although funded by the province, duty counsel are not agents of the state. To the contrary, they have been held to be “an independent source of legal assistance in the detainee’s confrontation against the state”.⁴⁸

348Boswell J. considered the role of the police and the province in respect of duty counsel. After indicating that the police are mandated to make the availability of duty counsel known to detainees, advise detainees how to make contact with duty counsel, and to facilitate such contact if it is requested, he emphasized that police cannot monitor quality of advice because of solicitor client privilege and are not trained to do so.⁴⁹

349Noting that in Prosper the Supreme Court of Canada held there was no substantive obligation on the state to provide duty counsel service, Boswell J. held it did not follow that the provision of duty counsel advice as part of the duty counsel program is subject to Charter scrutiny:

In light of Prosper, the province is not constitutionally mandated to provide duty counsel services. Where such services are voluntarily established can it be argued that the province is then constitutionally mandated to ensure the service providers meet a minimum level of quality? In my view, the answer is no. The remedy for negligent advice is not a constitutional one, but a civil one, as in any other instance of professional negligence.

350In respect of his findings that s. 10(b) does not guarantee the quality of counsel’s advice, Boswell J. agreed with Nordheimer J’s conclusion in Braithwaite that s. 10(b) does not guarantee the quality of counsel’s advice but disagreed with the qualification “except for basic competency”, finding that s. 10(b) does not include any guarantee of legal advice meeting a minimum level of quality.⁵⁰

351Boswell J. based his conclusion that s. 10(b) does not include any guarantee of a minimum level of quality of legal advice on a list of factors set out at para. 51 as follows:

(i) As indicated, the Supreme Court in R. v. Prosper has held that s. 10 does not provide for even a relatively limited substantive right to legal assistance;

(ii) There is no constitutional obligation on the state to provide duty counsel assistance at all, much less assistance of a particular character or quality;

(iii) The duties imposed on the police are to inform the detainee of the right to counsel and of the services available to the detainee, to implement the detainee's choice in terms of contacting counsel and to hold off further questioning until the detainee has had the right to speak with counsel should he or she express the desire to do so;

(iv) Discussions between duty counsel and accused persons are protected by solicitor and client privilege. As such, there would be no realistic way for the police - or anyone else for that matter - to monitor the quality of the advice given by duty counsel in a particular matter. Apart from having an awareness of the length of the discussion between the accused and duty counsel, the police have no means of inquiring or assessing what topics were discussed or what advice was given, nor are they in a position to assess the quality of the advice;

(v) Inadequate or negligent advice from privately retained counsel does not constitute a Charter breach. Creating a s. 10(b) right applicable only to those parties wishing to speak to duty counsel would create a defence for them not available to parties retaining private counsel. As Gillese J.A. held in R. v. Pea, supra, at para. 23, "[a]s a matter of criminal law policy, it can not be right that some persons could avoid conviction simply because they received erroneous advice from duty counsel instead of a privately retained lawyer";

(vi) The purposes underlying s. 10(b) are adequately met through the informational and implementational duties established in R. v. Brydges together with the duty to hold off questioning. Although the advice received from duty counsel in this instance was wrong advice, the manner in which the Appellant was treated during his brief confrontation with the state remained fair to him. His remedy, if any, is a civil one and not a constitutional one.

352Accordingly, Boswell J. concluded there was no violation of s. 10(b) of the Charter. He found that although the advice received from duty counsel was wrong advice, the manner in which the Appellant was treated during his brief confrontation with the state remained fair to him and his remedy, if any, was a civil one and not a constitutional one.

353On an application for leave to appeal to the Court of Appeal, the Court of Appeal refused leave. The Appellant sought leave on whether the guarantee of the right to counsel under s. 10(b) ensures a minimum level of competency; and second, whether on this record, the police had a legal obligation to facilitate a further telephone call between the appellant and duty counsel.

354In refusing leave, the Court of Appeal held that there was an insufficient evidentiary record on the second ground and in respect of the first ground held :

i.) The first ground was largely foreclosed by the judgment of the Supreme Court of Canada in Willier where, the majority held that the police have no obligation under s. 10(b) to monitor the quality of the legal advice received by a detainee from duty counsel.⁵¹

ii.) That the alternative argument “that duty counsel himself (or herself) is a state actor and is required by s. 10(b) to give basically competent legal advice” ran counter to the reasoning Pea, reasoning with which the Court of Appeal indicated they agreed.

R. v. Egwu, 2023 ONSC 3326 [“Egwu”]

355In Egwu the accused was arrested for sexual assault. Prior to his arrest, he was notified by phone by a police officer that a woman had made an allegation of sexual assault against him and he would be charged. The officer told him to come into the station and told him he might want to talk to a lawyer first. Before attending the police station, the accused called a friend who was a lawyer. She was inexperienced. She had practiced family and immigration law for one or two years. The accused spoke with her briefly and she told him to turn himself in and find out from the officer who was making the allegations against him. The accused went to the police station and was arrested for sexual assault. When provided with the rights to counsel, he said he wanted to speak to a lawyer and gave the phone number for his friend. When contacted, she initially indicated she was too busy and would have a colleague contact him. However, when her colleague was not available she spoke to the accused.

356The conversation lasted 1 minute and 25 seconds. The accused testified that the lawyer did not inform him that he had the right to silence, that he did not have to speak to the police, or that his refusal to talk could not be used against him. He said the lawyer only said that the officer told her that he would be released from the police station and he should make an appointment to see her.

357After the call, the officer asked the accused if he was satisfied with the advice given by counsel. The accused said he was. He said that although she did not go into detail, his lawyer told him that he was going to be released on bail and should make an appointment to meet her after release. He declined an offer from the officer to speak to the lawyer’s colleague the lawyer was attempting to put him in contact with earlier. Immediately thereafter he gave a lengthy exculpatory statement to the police.

358The parties entered an agreed statement of facts with respect to the lawyer’s evidence that indicated that the lawyer said she did not give him legal advice. She advised that she does not practice criminal law and that she referred him to another lawyer. She advised she did not have notes of the conversation.

359At trial, the accused alleged his s. 10(b) rights were breached. A blended voir dire was held to determine the voluntariness of the statement and whether there was a violation of s. 10(b). It was agreed that the accused did not receive any information from counsel with respect to his right to silence or his right against self-incrimination and that he did not receive legal advice of any kind”.⁵²

360Harris J. conducted a thorough review of cases that considered whether the quality of legal advice is subject to scrutiny under s. 10(b) of the Charter. He concluded that the reasoning of the Alberta Court of Appeal and the Supreme Court of Canada in Willier may have overtaken earlier findings by the British Columbia Court of Appeal in Osmond, that suggested that deficiencies in the quality of legal advice could support a s. 10(b) complaint.

361Harris J. found that the Supreme Court in Willier held that the police cannot be expected to monitor the quality of counsel’s advice. If the accused does not complain, the police can assume that the advice received is adequate.

362He distinguished circumstances where “no advice of any kind is given” and indicated that the Braithwaite line of authority, while restricting scrutiny of the quality of content of counsel’s advice, tends to suggest that a lack of basic competency or a total lack of advice is a proper subject for judicial scrutiny.

363Harris J. concluded that in Egwu, the lawyer lacked “basic competency” as the term was used by Nordheimer J. in Braithwaite. He concluded that basic competency required that the accused be told that they have the right to silence, the right not to incriminate themselves and, to put it into as tangible and easily understood terms as possible, that a detainee does not have to talk to nor co-operate with the police. The refusal to talk cannot be used against them. The accused should also be told that if they do choose to speak, what they say can be used against them by the prosecution at trial.⁵³

364However, Harris J. then considered whether the advice given by counsel attracts Charter scrutiny. He considered the applicability of s.32(1)(a) and (b) of the Charter and citing Braithwaite, he found that “it is not possible to construe the lawyer’s advice to Mr. Egwu as a form of government action.” Referencing Broyles⁵⁴, Harris J. found that while duty counsel may be funded by the state, that has no effect whatsoever on the actions or advice of duty counsel who act independently and are officers of the court. The fact they are funded by the government does not alter or affect what they do.

365Harris J. concluded that although the informational and implementation procedures were developed under the auspices of s. 10(b) of the Charter, the content of legal advice under the implementational component remains a private, not a state, function. He found that the lawyer’s non-advice “cannot be laid to rest at the governments doorstep and it does not constitute a Charter violation.”⁵⁵ A finding he indicated that is applicable whether the advice is given by private counsel, by counsel on a Legal Aid Certificate, or by duty counsel.

366Ultimately, the issue in Egwu was the admissibility of the statement made by the accused. Harris J. concluded that there was no route to a remedy under s. 24(2) because the evidence was not obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter. “The germ of the problem was not a consequence of state action or inaction.”⁵⁶

367In Egwu, the accused was not left without a remedy where the non-advice impacted trial fairness. Harris J. concluded that evidence can be excluded at common law where its admission would render the trial unfair under s. 7 or 11(d) of the Charter.

368Harris J. concluded that having regard to the absence of any legal advice and Mr. Egwu’s personal circumstances, it was unlikely that he had an appreciation from the primary caution that he did not have to speak to the police. He did not understand that he had the right to remain silent or that any statement he might make would be used by the prosecution at trial. Harris J. concluded that admitting the full statement would impact the appearance of a fair trial. He excluded a portion of the statement as a remedy under s. 24(1).⁵⁷

369In this case, there was no assertion that the duty counsel advice and/or admission of related evidence obtained rendered the trial unfair under s. 7 or 11(d) of the Charter. This is not a case where an inculpatory statement or other self-incriminatory evidence involving the participation of the accused was obtained from Mr. Matin following the advice that rendered the trial unfair.

Dussault Did Not Find that s. 10(b) Guarantees the Quality of Legal Advice

370Mr. Hechter submitted that the reasoning in Rover and Dussault, including that s. 10(b) serves as a lifeline for detainees, has broadened the protections of s. 10(b) and that some basic standard of adequacy of legal advice is now a constitutional imperative.

371In Dussault, the Supreme Court of Canada did not recognize a right to basic adequacy of legal advice (in terms of a minimum quality of the advice given by counsel) under s. 10(b) of the Charter.

372Following his arrest for murder and arson, Mr. Dussault spoke with a lawyer for nine minutes over the phone. The lawyer was concerned that Mr. Dussault did not understand his advice. As a result, the lawyer advised the accused he would attend the police station to speak to him in person. Before ending the call, the lawyer spoke to a police officer and requested that the police suspend the investigation until he arrived to speak further with the accused. The police agreed, and the lawyer told the accused he was coming to the station to speak with him in person and that the police would put him in a cell until he arrived and he was not to say anything. The conversation between the accused and his lawyer was incomplete, and as a result, the reasonable exercise of his right to counsel was not exhausted. Both the accused and the lawyer expected the conversation to continue.

373When the lawyer arrived at the station, the police refused to allow him to see the accused. The police interviewed the accused, and when Mr. Dussault asked the police about his lawyer and told the police his lawyer said he would come to the station, the police told him that the lawyer was not there. The police subsequently obtained an inculpatory statement.

374The Quebec Court of Appeal concluded that the police had deliberately and concertedly attempted to frustrate the effective exercise of the right to counsel by Mr. Dussault, violating the accused’s s. 10(b) right to counsel. The Court of Appeal held that the police cannot behave in a way that frustrates the right to counsel. “The evidence in this case makes clear that the effective assistance of counsel was denied when investigators determined not to permit a continuation of the consultation that began on the telephone.” The determination had nothing to do with the quality of advice given by counsel and everything to do with the police conduct that frustrated the exercise of the right to counsel.⁵⁸

375The Supreme Court of Canada concluded that there was a violation of s. 10(b), but for different reasons. The Supreme Court concluded that there was a violation because of the unique circumstances of the case that required the police to give the accused a second consultation with his lawyer. The Supreme Court held there were objectively observable indicators that the police conduct undermined the legal advice the lawyer provided to Mr. Dussault. The police conduct caused the accused to believe that the lawyer had misled him when he said he would come to the station, something that undermined the advice he had given. Therefore, even if there had been a complete consultation, the police were required to provide Mr. Dussault with a second opportunity to consult counsel.

376In Dussault, neither the reasoning of the Court of Appeal nor the Supreme Court of Canada suggested that an accused is entitled to “effective” assistance of counsel in terms of a qualitative assessment of advice given, nor did either Court tie the breach to the conduct of counsel. The focus of the inquiry by both courts was on the impact of the conduct of the police on the effective exercise of the right to counsel.

377In Detention, Arrest, and the Right to Counsel, Garg and Kapoor reject the proposal that counsel providing initial advice to a detainee are in some way state agents and make the point that there is no right to effective legal assistance under s. 10(b). They emphasize that it is the police that must fulfill s. 10(b) implementational duties, not counsel who are not agents of the state. They observe that it would create a conflict for counsel to be considered state actors sharing implementational duties with the police stating as follows at pp. 405 and 406:

The law has not recognized a right to “effective” legal assistance under s. 10(b). Accordingly, there is no obligation on the police to ensure that a detainee received effective legal assistance. The effective assistance of counsel protects an accused’s fair trial rights and the reliability of the verdict. It ensures that an accused is competently represented at trial. But it is not imported into the scope of s. 10(b).

The consulting lawyer’s intention to deliver effective legal advice cannot be converted into a right that is guaranteed under s. 10(b). The advice that counsel imparts will support the purpose of s. 10(b) by advising detainees on how to exercise their rights in an informed manner. But the Charter protects individuals by regulating the state and is confined to government action. Implementational decisions cannot be downloaded to the consulting lawyer by requiring them to assert or imply that the consultation was effective before the police can commence an interview or investigative procedure. It is the police, not the consulting lawyer, who are charged with implementing a detainee’s right to counsel. Transferring implementational obligations to counsel could put them in conflict by playing a role in investigative steps, and it would put the state in the unsavoury position of later defending counsel’s conduct over which it had no control. Allowing counsel to decide when the police can elicit evidence from the detainee could also risk causing adverse delays. [citations omitted, emphasis added].⁵⁹

378Further, a finding that a basic standard of adequacy of legal advice is now a constitutional imperative under s. 10(b) is inconsistent with the well established principles governing claims of ineffective assistance of trial counsel. In cases of ineffective assistance of trial counsel, where counsel is found to lack basic competency, the route to a remedy on appeal, is that trial counsel’s performance caused a miscarriage of justice.⁶⁰ A remedy exists for the incompetence of counsel where there is a violation of the right to make full answer and defence and the right to a fair trial under sections 7 and 11(d) of the Charter; not due to a breach of the right to counsel under section 10(b).

Summary of Prior Findings

379Thus, Superior Courts of Ontario and the Ontario Court of Appeal have held that:

i.) Under s. 10(b), as established in Brydges and Bartle, the police must inform a detainee of the existence and availability of duty counsel and provide the means necessary to access (contact) duty counsel and the manner in which they can be contacted.

ii.) Section 10(b) of the Charter does not guarantee the quality of legal advice received.

iii.) The police have no obligation under s. 10(b) to monitor the quality of legal advice received from duty counsel.

iv.) Duty counsel is not a government official.

v.) Duty counsel is not a state actor.

vi.) The state does not become responsible for advice given merely because it is in some way instrumental in providing and facilitating that legal advice.

vii.) It would be inconsistent to find that deficient duty counsel advice attracts Charter scrutiny under s. 10(b) while deficient advice from private counsel, or counsel funded through a Legal Aid certificate does not.

380In my view, in accordance with R. v. Sullivan⁶¹, I am bound by vertical stare decisis in respect of the findings of the Ontario Court of Appeal in Beierl and by horizontal stare decisis in respect of the findings in Braithwaite and Egwu. Judicial comity as well as the rule of law principles supporting stare decisis mean that prior decisions should be followed unless some binding authority in case law or some relevant statute was not considered, or the earlier decision was not fully considered.

381I do not agree with the submission of the Applicant that Beierl, Braithwaite, and Egwu were decided per incuriam because they did not explicitly reference Eldridge. In my view, the cases consider what is at the core of the reasoning in Eldridge, which is whether the conduct of a non-governmental actor or private entity attracts Charter scrutiny because of certain inherently governmental actions. The reasoning in Braithwaite, Beierl, and Egwu, each scrutinized “the quality of the act at issue” and whether the act was truly "governmental" in nature, ultimately concluding it was not.

382Even if I were not so bound, I agree with the conclusions reached by the previous courts as set out above and find that Brydges duty counsel are not state actors, and the advice Mr. Melady provided to Mr. Matin is not subject to Charter scrutiny under s. 10(b) of the Charter.

383For completeness, I have summarized the principles established by the Supreme Court in Eldridge to explain why in my view Eldridge does not support a finding that Mr. Melady, in giving advice to Mr. Matin, as Brydges duty counsel is not a state actor.

F. Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624

384The Applicant places significant reliance on Eldridge in submitting that Mr. Melady, in providing advice to Mr. Matin, was a state actor. The Applicant argues that previous authorities, including Beierl have failed to consider the principles established by the Supreme Court of Canada in Eldridge, and as a result, they are not binding. The Applicant argues that application of the principles established in Eldridge leads to the conclusion that the advice given by Mr. Melady is subject to Charter scrutiny.

385I disagree. The findings in Eldridge are distinguishable. Application of the principles in Eldridge leads to the conclusion that Mr. Melady, in providing advice to Mr. Matin, was not a state actor.

386In Eldridge, the Supreme Court of Canada considered whether the failure of hospitals to provide sign language interpretation for deaf patients violated s. 15 of the Charter.

387At issue in Eldridge was i.) whether and in what manner, the Charter applies to the hospital and Medical Service Commission decision not to provide sign language interpreters for the deaf as part of the publicly funded scheme for the provision of medical care; ii.) Whether the decision constitutes a prima facie violation of s. 15(1) of the Charter; and iii.) whether the decision is saved by s.1 of Charter.

388The Supreme Court of Canada held it was not the legislation that infringed the Charter, rather it was the actions of hospitals and the Medical Services Commission, exercising discretion conferred by the legislation that violated s. 15. As a result, the Supreme Court considered whether the Charter applied to those entities.

389 Section 32(1) of the Charter provides that the Charter applies to:

(a) the Parliament and the Government of Canada in respect of all matters within the authority of Parliament including all matters related to the Yukon Territory and Northwest Territories.

(b) the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

390Under s. 32(1)(b), the Charter applies to provincial legislation. There are two ways in which it applies:

i.) Legislation may be found to be unconstitutional on its face because it violates a Charter right and is not saved by s. 1. In such cases the legislation will be invalid, and the Court is compelled to declare it of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982.

ii.) The Charter may be infringed, not by the legislation itself, but by the actions of a delegated decision maker in applying it. In such cases the legislation remains valid, but a remedy for the unconstitutional action may be sought pursuant to s. 24(1) of the Charter.⁶²

391In Eldridge, the Court considered whether the alleged breach of s. 15(1) arose from the impugned legislation itself or from the actions of entities exercising decision-making authority pursuant to the legislation. The Court concluded what was at issue was not the legislation itself but rather the actions of delegated decision makers applying the legislation.

392Sign language interpretation was not expressly provided for under the Medical and Health Care Service Act (MHCSA). The Act did not list the services that are to be considered benefits under the Act. It delegated the power to make that determination to a subordinate authority, and it was the decision of the subordinate authority that was constitutionally suspect, not the statute itself. The purpose of the discretion was to ensure that all medically required services are paid for by the government. The Act gave individual hospitals considerable discretion as to the way the services they provided were delivered. The potential violation of s. 15(1) lay in the discretion wielded by a subordinate authority, not the legislation itself.

393A legislature can give authority to a body that is not subject to the Charter. For example, corporations are creatures of statute and have no power or authority that does not derive from the legislation that created them. However, the Charter does not apply to them, because the legislature has not entrusted them to implement specific government policies. “Governments may desire corporations to serve certain social and economic purposes, and may adjust the terms of their existence to accord with those goals. Once brought into being, however, they are completely autonomous from government; they are empowered to exercise only the same contractual and proprietary powers as are possessed by natural persons.” As a result, while the legislation creating corporations is subject to the Charter, corporations themselves are not part of “government” for the purposes of s. 32 of the Charter.⁶³

394However, legislatures have created many other statutory entities that are not as clearly autonomous from government. There are a myriad of public or quasi-public institutions that may be independent from government in some respects, but in other respects may exercise delegated governmental powers or be otherwise responsible for the implementation of government policy. When it is alleged that an action of one of these bodies, and not the legislation that regulates them, violates the Charter, it must be established that the entity, in performing that particular action, is part of “government” within the meaning of s. 32 of the Charter.⁶⁴

395In Eldridge, the Supreme Court of Canada observed that in the companion cases of McKinney⁶⁵, Harrison⁶⁶, Stoffman⁶⁷, and Douglas/Kwantlen Facutly Assn⁶⁸, the Court considered whether the mandatory retirement polices adopted by certain colleges, universities, and hospitals, were subject to Charter review. In each case, the majority of the Supreme Court of Canada confirmed the view taken by McIntyre J. in Dolphin Delivery⁶⁹, that the Charter applies only to Parliament, the provincial legislatures and entities that constitute part of the executive or administrative branches of government, and not to private activity.⁷⁰ In McKinney, Stoffman, and Harrison, the majority of the Supreme Court held the Charter did not apply because the institutions whose policies were impugned were not themselves part of the apparatus of government in the sense required by s. 32(1), nor were they putting into place a government program or acting in a governmental capacity in adopting those policies. However, in Douglas/Kwantlen Faculty Assn, the same majority found that the Charter did apply to the mandatory retirement policy at issue because Douglas College, in light of its constituent Act, was simply an emanation of government.

396The Supreme Court explained the differences between McKinney, Harrison, and Douglas College:

Douglas College was a Crown agency established by the government to implement government policy.
Although the government could choose to permit the college board to exercise a measure of discretion, the board was appointed and removable at pleasure by government; and the government at all times by law could direct its operation.

The college’s constituent Act expressly described it as an agent of the Crown. The college in form and substance was part of the government and in carrying out its acts, the college was performing acts of government.

397The Supreme Court contrasted the status of Douglas College with that of the universities in McKinney and Harrison, which “although extensively regulated and funded by government, are essentially autonomous bodies.”⁷¹

398The Supreme Court of Canada also referenced Lavigne⁷², wherein the majority of the Supreme Court of Canada considered whether a provision of a collective agreement requiring the Appellant to pay union dues to OPSEU was subject to Charter scrutiny. The Supreme Court held that the appellant’s employer, the Ontario Council of Regents for Colleges of Applied Arts and Technology was, by virtue of the terms of its empowering Act, an emanation of the provincial government. The Court found that although the Act did not expressly describe it as an agent of the Crown, as in Douglas, the Act gave the Minister power to conduct and govern the colleges and, in this endeavor, the Minister was to be “assisted” by the Council. The Court held the reality was the same as in Douglas because “the government, through the Minister, has the same power of “routine or regular control”.⁷³

399In Lavigne, the Supreme Court rejected the view that the Charter does not apply to government when it engaged in activities that are private, commercial, contractual or non-public in nature and found that when an entity is determined to be part of the fabric of government, the Charter will apply to all of its activities, including those that in other circumstances may be thought of as private. The Charter applies to all the activities of government whether or not those activities may be otherwise characterized as private.⁷⁴

400In Eldridge, the Court clarified that the Charter can apply to a private entity when it is engaged in activities that can in some way be attributed to the government, “if it can fairly be said that the decision is that of the government, or that the government sufficiently partakes in the decision as to make it an act of government.” A private entity may be subject to the Charter in respect of certain inherently governmental actions.⁷⁵ The Court stated at para. 42:

McKinney makes clear, however, that the Charter applies to private entities in so far as they act in furtherance of a specific governmental program or policy. In these circumstances, while it is a private actor that actually implements the program, it is government that retains responsibility for it. The rationale for this principle is readily apparent. Just as governments are not permitted to escape Charter scrutiny by entering into commercial contracts or other “private” arrangements, they should not be allowed to evade their constitutional responsibilities by delegating the implementation of their policies and programs to private entities.

401The mere fact that an entity performs what may loosely be termed a “public function”, or the fact that a particular activity may be described as “public” in nature, will not be sufficient to bring it within the purview of “government” for the purposes of s. 32 of the Charter. In order for the Charter to apply to a private entity, it must be found to be implementing a specific government policy or program.⁷⁶

402The Supreme Court explained that the Charter may be found to apply to an entity on one of two bases: i.) that the entity is inherently governmental by its nature; or ii.) that a particular action of the entity is governmental, in which case the entity is subject to Charter scrutiny in relation to the Act, but not its other private activities. The Supreme Court explained as follows at para. 44:

First, it may be determined that the entity is itself “government” for the purposes of s. 32. This involves an inquiry into whether the entity whose actions have given rise to the alleged Charter breach can, either by its very nature or in virtue of the degree of governmental control exercised over it, properly be characterized as “government” within the meaning of s. 32(1). In such cases, all of the activities of the entity will be subject to the Charter, regardless of whether the activity in which it is engaged could, if performed by a non-governmental actor, correctly be described as “private”. Second, an entity may be found to attract Charter scrutiny with respect to a particular activity that can be ascribed to government. This demands an investigation not into the nature of the entity whose activity is impugned but rather into the nature of the activity itself. In such cases, in other words, one must scrutinize the quality of the act at issue, rather than the quality of the actor. If the act is truly "governmental" in nature - for example, the implementation of a specific statutory scheme or a government program - the entity performing it will be subject to review under the Charter only in respect of that act, and not its other, private activities.⁷⁷

403Ultimately, in Eldridge, the Supreme Court of Canada found that the hospital, in failing to provide sign language interpretation, was subject to Charter scrutiny. Central to the conclusion were the following findings:

The failure to provide sign language interpretation was distinguishable from hospital mandatory retirement policies because the mandatory retirement policies of hospitals (considered in McKinney and found not to be state action) was not instigated by government. There was a great variety in the approaches to retirement.
Although the medical services provided to the public under the Hospital Insurance Act are delivered and administered through private institutions, it is the government and not hospitals, that is responsible for defining both the content of the service to be delivered and the persons entitled to receive it.
The net effect of the Act is to entitle every qualified person to receive and to require hospitals to supply a complete range of medically required hospital services.
That in providing medically necessary services, hospitals carry out a specific government objective. It provides for the delivery of a comprehensive social program.

404The Court in Eldridge explained why the failure of hospitals to provide sign language interpretation attracted Charter scrutiny at para. 51:

Unlike Stoffman, then, in the present case there is a “direct and . . . precisely-defined connection” between a specific government policy and the hospital’s impugned conduct. The alleged discrimination -- the failure to provide sign language interpretation -- is intimately connected to the medical service delivery system instituted by the legislation. The provision of these services is not simply a matter of internal hospital management; it is an expression of government policy. Thus, while hospitals may be autonomous in their day-to-day operations, they act as agents for the government in providing the specific medical services set out in the Act. The Legislature, upon defining its objective as guaranteeing access to a range of medical services, cannot evade its obligations under s. 15(1) of the Charter to provide those services without discrimination by appointing hospitals to carry out that objective. In so far as they do so, hospitals must conform with the Charter.

405The test established in Eldridge was recently applied in York Regional District School Board v. Elementary Teachers’ Federation of Ontario⁷⁸, in which the Supreme Court of Canada concluded that the Charter applies to the actions of school boards and officials under the first branch of Eldridge because by its very nature or the degree of governmental control exercised over it, the entity is akin to government. Because the school board was inherently governmental the Charter was found to apply to all of the school board’s (or officials) actions, including those that would otherwise be described as “private” if they were carried out by a non-governmental actor. Ontario public school boards are, in effect, an arm of government, in that they exercise powers conferred on them by provincial legislatures, powers, and functions which they would otherwise have to perform themselves. The Charter applied to the principal’s actions when he acted in his official capacity as an agent of the Board, a statutory delegate and not in his personal capacity. Accordingly, the principal’s search of a teacher’s computer was subject to Charter scrutiny.

Legislative Framework – Duty Counsel Ontario

LAO, Foundever, and Duty Counsel are not Inherently Governmental By Their Nature

406As noted, in respect of non-government entities, the Charter may be found to apply to an entity on one of two bases: i.) that the entity is inherently governmental by its nature; or ii.) that a particular action of the entity is governmental, in which case the entity is subject to Charter scrutiny in relation to the Act, but not its other private activities.

407Legal Aid Ontario, Foundever, and Brydges duty counsel are not inherently governmental entities by nature. This is clearly not a circumstance where all of the activities of the entity are subject to the Charter. Secondly, the action of duty counsel providing advice is not governmental, and as such, the entity is not subject to Charter scrutiny in relation to the act of provision of advice.

408The Legal Aid Services Act, 1998, S.O. 1998, c. 26, established Legal Aid Ontario as a corporation without share capital with the purpose of promoting access to justice through Ontario for low-income individuals. It is continued under the Legal Aid Services Act, 2020 S.O. 2020, c. 11, Sched. 15.

409Section (1) of the Legal Aid Services Act, 1998, sets out the purpose of the Act as follows:

(1) The purpose of this Act is to facilitate the establishment of a flexible and sustainable legal aid system that provides effective and high-quality legal aid services throughout Ontario in a client-focused and accountable manner while ensuring value for money.

410“Legal aid services” is defined in s. 2 to mean the legal and other related services provided by the Corporation (defined as Legal Aid Ontario) to individuals under the Legal Aid Services Act, 1998.

411Regarding Legal Aid services, s. 3(b) of the Legal Aid Services Act, 2020, provides:

The corporation may, subject to the regulations, provide as legal aid services any legal or other related services that it considers appropriate, including:

(b) legal and other related assistance for individuals wholly or partly representing themselves in a proceeding, including limited scope representation and the provision of summary advice or legal information;

412 Section 5(2) of the Legal Aid Services Act, 2020, provides:

(2) The Corporation may provide legal aid service by,

(a) Employing lawyers and other persons to provide the services; and

(b) Authorizing, in accordance with the rule, lawyers, law firms, community legal organizations, Indigenous legal services organizations, student legal services organizations or other persons or entities to provide the services as service providers.

413 Section 16 of the Legal Aid Services Act, 2020, provides as follows:

(1) Legal Aid Ontario is continued as a corporation without share capital under the name Legal Aid Ontario in English and Aide juridique Ontario in French.

(2) The Corporation shall consist of the members of its board of directors.

(3) Despite the Crown Agency Act, the Corporation is not an agent of the Crown for any purpose. [emphasis added]

(4) The Corporation is independent from, but accountable to, the Government of Ontario as set out under this Act. [emphasis added]

(5) Without limiting subsection (4), the Corporation is independent from the Government of Ontario in relation to,

(a) Determinations respecting the provision of legal aid services to individuals; and

(b) The exercise of the Corporation’s discretion under subsection 5(2).

414 Section 17(1) of the Legal Aid Services Act, 2020, sets out the objects of Legal Aid Ontario as follows:

(a) to establish and administer a flexible and sustainable system for providing legal aid services to individuals in Ontario;

(b) to establish policies and priorities for the provision of legal aid services based on its financial resources;

(c) to facilitate co-ordination among the different legal aid services that are provided and the manners in which they are provided, including through different service providers;

(d) to monitor and supervise the provision of legal aid services in Ontario; and

(e) to advise the Minister on all aspects of legal aid services in Ontario, including any features of the justice system that affect or may affect the demand for or quality of legal aid services.

415 Section 17(2) of the Legal Aid Services Act, 2020, sets out the Principles of Legal Aid Ontario as follows:

(2) The Corporation shall carry out its objects in accordance with the following principles:

That legal aid services should,

i. promote access to justice,

ii. be efficient, effective and high-quality,

iii. be provided in a client-focused, innovative, transparent and accountable manner,

iv. be responsive to the needs of low-income individuals and disadvantaged communities in Ontario,

v. promote early resolution, where appropriate, and

vi. be co-ordinated with other aspects of the justice system and with community services.

That continual efforts should be made by the Corporation to maintain and improve the effectiveness and quality of legal aid services while ensuring value for money.

416The affairs of Legal Aid Ontario are governed and managed by its board of directors.

417Legal Aid Ontario receives funding from the Government of Ontario.

418Matters for which Legal Aid Ontario requires the approval of government include:

Acquiring or encumbering property
Borrowing or lending money
Creating a subsidiary
Entering into agreements with other federal or provincial governments, agencies, boards or commissions.
Registration as a Charity or acting in association with entities that conduct fundraising for the Corporation.

419The minister may require Legal Aid Ontario to report on any aspect of its affairs or to provide information on its activities, operations, and financial affairs.

420The Legal Aid Services Act does not explicitly reference provision of Brydges duty counsel services. However, summary legal advice is included in the legal services the Corporation may provide under s. 3(b) of the Legal Aid Services Act, 2020.

421Section 5(2) permits Legal Aid Ontario to provide legal aid services by authorizing other persons or entities to provide services as service providers.

422Similarly, the Legal Aid Services Rules (“the Rules”) do not explicitly reference the Brydges duty counsel services. However, section 15(1) provides that any individual is financially eligible to receive “summary legal advice” and public legal education from an “entity” service provider.

423Section 78 of the Rules provides that the Corporation may enter into a service agreement with an entity or entity service provider to provide entity services.

424Entity service providers include an entity that has entered into a service agreement with the Corporation.

425Section 79(1) of the Rules provides that the relationship between an entity service provider and the Corporation is governed by the Act, the Rules and the agreement. The entity service provider is not an agent of the Corporation. Employees and contractors of the entity service provider who are licensees of the Law Society of Ontario must satisfy their professional obligation under the Law Society Act, R.S.O, 1990, c. L.8.

426There are additional provisions that provide for the funding of entity service providers and termination of the agreement.

427As previously outlined, Foundever is a private corporation that contracted with Legal Aid Ontario to deliver the Brydges duty counsel service.

428Duty counsel are independent contractors who contract with Foundever to provide Brydges duty counsel services.

429It is clear from the Legal Aid Act that Legal Aid Ontario, unlike Douglas College or York Region District School Board⁷⁹, operates autonomously from the government. By statute, it is not an agent of the Crown and operates independently from the government. While it reports to the government and receives funding from government, it is not directed in its day to day operations by government. Government does not engage in routine and regular control over Legal Aid Ontario.

430Foundever and individual duty counsel are further removed from government than LAO.

431LAO, Foundever, and individual duty counsel are not inherently governmental by their nature.

The Provision of Advice by Duty Counsel, (the Action of the Entity) is Not Governmental

432In Eldridge, the Court held that the hospital, in failing to provide sign language interpretation to all hearing impaired patients, was a state actor because the decision was a manifestation of government policy regarding the services to be delivered and the persons entitled to receive it under the Hospital Insurance Act. The hospital was not a state actor by its very nature, but because of the specific policy decision by the hospital that was governmental in nature.

433Unlike in York Region District School Board⁸⁰, where the Supreme Court found that the Charter applied to all the actions of school boards and officials because the entity is akin to government, Eldridge did not decide that hospitals (and hospital employees and hospital independent contractors) for all purposes and in all acts were state actors. The hospital was found to be subject to Charter scrutiny only in respect of the inherently governmental act, and not its other, private activities. Thus, Eldridge did not establish that doctors providing medical services for individual patients at the hospital were subject to Charter scrutiny. The conduct of a doctor may be subject to professional regulatory scrutiny and may result in civil liability, but Eldridge does not support a finding that individual doctors carrying out their inherently private professional duties are subject to Charter scrutiny.

434Similarly, even if Legal Aid Ontario or Foundever were found to be subject to constitutional scrutiny because they implement a specific government policy (a conclusion I have not reached), individual duty counsel lawyers providing advice to clients are not implementing a specific government policy. Far from it. They act independently from the government in providing their advice. They act as the guardians of the constitutional rights of an accused and as a check and balance to the exercise of state power. Duty counsel “is an independent source of legal assistance in the detainee’s confrontation against the state.”⁸¹

435In determining the advice they provide, and in providing advice, duty counsel are not implementing a government policy, their advice is governed by the law and their professional responsibilities under the Rules of Professional Conduct. The advice is inherently private. It is protected by solicitor client privilege. The provision of legal advice by a lawyer is not a state function. It is an inherently private one.⁸²

436Mr. O’Connor described the relationship between Legal Aid Ontario and defence counsel where an accused is funded by a Legal Aid Certificate. The fact that the government funds LAO, and LAO monitors and places restrictions on defence funding, does not cause defence counsel to become an agent of the state or the defence to be an expression of government policy. A lawyer operating under a Legal Aid Certificate is not an agent of the state merely because their funding originates from the state, or the funding is regulated. Similarly, Brydges duty counsel is not an agent of the state merely because the state has put a program of funding in place for the availability of 24 hour a day Brydges duty counsel services.⁸³

437The Applicant has not established that the particular action of the entity is governmental such that the entity, individual Brydges duty counsel contracted to provide duty counsel services for Foundever, is subject to Charter scrutiny.

438If duty counsel are state agents because of the contractual terms and conditions between Legal Aid Ontario and Foundever, and because the state has chosen to provide Brydges duty counsel services, then so too is every lawyer who represents a client on a Legal Aid Certificate. Such a finding would be a distortion of the principles established by the Supreme Court of Canada in Eldridge.

439In R. v. Dorsay⁸⁴, the British Columbia Supreme Court reached the same conclusion in finding that the Legal Services Society (British Columbia Legal Aid) was not part of the government for the purposes of s. 32 of the Charter. In Dorsay, the Court considered a Rowbotham application following a legal aid refusal to fund counsel for related proceedings in the United States. The Court held it did not have jurisdiction to order the Attorney General to pay the cost of retaining counsel in the United States. The Applicant claimed that the Legal Services Society (Legal Aid) violated the accused’s Charter rights in denying funding for the American proceedings.

440The Court considered whether the Legal Services Society in carrying out its objects under s. 3 of the Legal Services Society Act, R.S.B.C. 1979, c.227, possessed a sufficient degree of autonomy that it avoided becoming part of government for the purposes of s. 32 of the Charter. The Act contained similar provisions to the Ontario Legal Aid Services Act, including ss. 4(2) that provided that the “society is not an agent of the government or of the law society.” Ninety percent of the funding for the Society was provided by the government. Section 5 of the Act made a provision for a board of 15 members, 5 of whom were appointed by the Lieutenant Governor in Council on the recommendation of the Attorney General. There was also evidence that the Board refused to implement significant budget cuts as directed by the government and as a result, the board was dismissed, and a trustee was appointed and directed to implement the budget.

441Nonetheless, the Court in Dorsay, after considering the principles in Eldridge, concluded that the board did not exercise control or direction over specific matters (court files/cases) and there was no suggestion that the government exercised any control over who may receive legal aid or interfered in the application for funding in the case.

442The Court held that there is a degree of autonomy of the Society in carrying out its statutory mandate which negates the possibility of finding that it is government within the meaning of s. 32 of the Charter and held the Legal Services Society was not subject to Charter scrutiny.

G. Conclusions – State Agency

443Duty Counsel providing summary legal advice to detained persons are not agents of the state and as such, the Charter is not implicated in respect of the advice given by Mr. Malady. The advice provided by Mr. Malady to Mr. Matin is not subject to Charter scrutiny.

[444] In regards to the principles enunciated by the Supreme Court of Canada in Eldridge relied upon by the Applicant, on the facts of this case, I am not satisfied that the conduct of Legal Aid Ontario in contracting with Foundever to provide duty counsel services or Foundever in implementing those services supports a finding that there was a violation of Mr. Matin’s s. 10(b) Charter rights as a result of state action. The Applicant has failed to establish that the actions of a delegated decision maker in applying legislation or in exercising decision making authority violated Mr. Matin’s rights.

445In this case, Mr. Malady worked as an independent contractor for Foundever to provide summary legal advice to detainees. Foundever was contracted by Legal Aid to implement a program available for 24 hours a day to provide summary legal advice. Having regard to the nature of the activity, the act of providing legal advice – fulfilled by Mr. Malady – is an inherently private act and is not subject to Charter scrutiny. The state does not become responsible for advice given merely because it is in some way instrumental in providing and facilitating that legal advice. While duty counsel may be funded by the state, duty counsel acts independently and are officers of the court that must act in accordance with their ethical and professional obligations. Advice that is not competent may be subject to professional regulatory scrutiny, and may result in civil liability.

446The content of legal advice remains a private and not state function. There is no proper basis to find that deficient duty counsel advice attracts Charter scrutiny under s. 10(b) whereas deficient advice from private counsel or counsel funded through a Legal Aid Certificate does not.

447The circumstances in Eldridge, wherein the Supreme Court of Canada concluded that the failure of hospitals to provide sign language interpretation attracted Charter scrutiny, are distinguishable.

448 Section 10(b) of the Charter guarantees access to counsel. It does not guarantee the quality of counsel or of his or her advice. It does not provide a guarantee of a minimum level of quality of legal advice.

449Even if the quality of advice of duty counsel were to attract Charter scrutiny, Mr. Matin has failed to establish on a balance of probabilities that Mr. Malady’s advice was so deficient that it violated s. 10(b) of the Charter. This is not a circumstance where the advice amounted to no advice, or where the Applicant has established that the advice failed to meet the threshold of “basic competency”.

450I have concluded that:

i.) Mr. Malady in providing advice to Mr. Matin was not an agent of the state and as such the Charter was not implicated in respect of the advice he gave because he was not a state actor.

ii.) Section 10(b) of the Charter does not guarantee the quality of legal advice received by a detainee.

iii.) The police fulfilled their informational and implementational duties under s.10(b) of the Charter.

iv.) The circumstances of the case did not require the police to take further steps to implement Mr. Matin’s 10(b) rights following the call with duty counsel.

v.) The police were not required to provide a second consultation with a lawyer prior to the routine procedure of seizure of Mr. Matin’s clothing and taking photographs and swabbing his hands.

451There was no violation of Mr. Matin’s section 10(b) right to counsel.

Justice M. Henschel

Released: June 3, 2026

CITATION: R. v. Daniil Matin, 2026 ONSC 3232

COURT FILE NO.: 23-91107307

DATE: 20260603

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

DANIIL MATIN

Defendant

REASONS FOR JUDGMENT on personal

s. 10(b) application

Justice M. Henschel

Released: June 3, 2026

Footnotes

Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [“Charter”].
[1990] 1 S.C.R. 190, 1990 CanLII 123 (SCC) [“Brydges”].
Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624 [“Eldridge”]; 1997 CarswellBC 1940.
The Applicant relies on R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 25 in advancing this argument.
R. v. Beierl, [2010] O.J. No. 2708 (S.C.), leave to appeal refused, 2010 ONCA 697, leave to appeal refused, [2011] S.C.C.A. No. 33997 [“Beierl”].
R. v. Pea, 2008 CanLII 89824 (ON CA), 93 O.R. (3d) 67 (C.A.).
Supra, note 5.
R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135 [“Rover”].
R. v. Dussault, 2022 SCC 16, [2022] 1 S.C.R. 306 [“Dussault”].
The pre-requisites of past recollection recorded were met: Mr. Melady had no present recollection of his interaction with Mr. Matin. The document was created by Mr. Melady at a time when his memory was fresh so that it was vivid and probably accurate. Mr. Melady’s evidence establishes that the log accurately represents his recollection at the time it was made. Witnesses who do not have a present memory of a fact or event may with leave of the court, “refresh their memory” in court from a document or an electronic record that reliably recorded their memory at, or soon after the time of the event. Where the “past recollection recorded” doctrine applies, witnesses can present the recorded memory as part of their testimony, even if seeing the record does not spark a present memory. See David M. Paciocco, Palma Paciocco, and Lee Stuesser. The Law of Evidence. 8th Edition. Irwin Law. 2020. Toronto, Ontario., a pp. 539-540.
R. v. Braithewaite, [2002] O.J. No. 1955 (S.C.J.)
R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 40 [“Subero”]; R. v. LaFrance, 2022 SCC 32, [2022] 2 S.C.R. 393, at paras. 78-79 [“LaFrance”].
Suberu, at para. 40; LaFrance, at para. 78, citing R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 28.
R. v. Dussault, 2022 SCC 16, [2022] 1 S.C.R. 306, at para. 30, citing R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 24 [“Sinclair”].
Brydges, at pp. 202-203. R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 SCR 1233, at pp. 1242-1243 [“Manninen”].
Rover, at para. 45. In Dussault, at para. 56, the Supreme Court of Canada endorsed Doherty JA’s description of the right to counsel as a “lifeline” through which detained persons obtain legal advice.
R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at paras. 24-25. Dussault, at para. 31; Sinclair, at para. 27; and Manninen, at pp. 1242-1243.
Brydges, at para. 24; R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at p. 201. “A detainee is entitled under the informational component of s. 10(b)…to be advised of whatever system for free, preliminary legal advice exists in the jurisdiction and how such advice can be accessed (e.g. by calling a 1-800 number or being provided with a list of telephone numbers for lawyers acting as duty counsel).”R. v. Pozniak, 1994 CanLII 66 (SCC), [1994] 3 S.C.R. 310. Notably, in R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236, the Supreme Court of Canada held that there is no constitutional right to state funded duty counsel per se.
Dussault, at para. 32, citing Sinclair, at para. 47.
R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 42 [“Willier”].
Willier, at para. 41.
LaFrance, at para. 73.
Dussault, at para. 34.
Sinclair, at para. 48.
LaFrance, at paras. 47-55. Sinclair, at para. 2; Dussault, at para. 34. These categories are not closed and there may be additional circumstances that could result in an accused being entitled to further consultation with counsel.
Dussault, at para. 34. One example of the third category identified by the Supreme Court of Canada is where the police undermine confidence in counsel or the advice given by counsel because it undercuts the purpose of s. 10(b). As a result, the Supreme Court of Canada held that it is necessary in such circumstances for the police to give the detainee a further opportunity to consult counsel to counteract these effects because the earlier advice may have been nullified or distorted.
Sinclair, at para. 57.
In R. v. Edwards, 2024 ONCA 135, at paras. 36- 44, the Ontario Court of Appeal speaks of the joint effort of the police and a detainee to implement his right to counsel. While Edwards is a decision regarding whether the police were reasonably diligent in implementing counsel of choice, it makes it clear that the obligation of the police to facilitate contact with counsel and the responsibility of the detainee to take reasonable steps to contact counsel work in tandem. The police must take reasonable steps to connect a detainee with counsel of choice, and the detainee must exercise reasonable diligence in connecting with counsel of choice.
Willier, at paras. 40 and 41.
Willier, at para. 42.
R. v. Beauregard, 2016 ABCA 37 [“Beauregard”].
Beauregard, at para. 7.
Beauregard, at paras. 14-17. See also R. v. Liew, 1998 ABCA 98, where the police gave access to the accused to a phone to contact counsel. He was only able to leave a message on his lawyer’s phone. The police never asked if he had been successful in contacting counsel and the accused did not tell the police he had not reached his lawyer. The Alberta Court of Appeal held that the police fulfilled their s. 10(b) duties at para. 18: “They informed Liew of his right to counsel and provided him with a reasonable opportunity to exercise that right. There was nothing that would have alerted the police to the fact that Liew had been unable to contact counsel. He did not tell them of his difficulty. The police are not mind-readers and, as this Court has said in the past, they are not there to play ‘Twenty Questions’.”
R. v. Osmond, 2007 BCCA 470.
Davin Michael Garg, Anil Kapoor, Detention, Arrest, and the Right to Counsel. (Toronto: Emond Publishing, 2024) at 406 [“Detention, Arrest, and the Right to Counsel”].
Lafrance, at para. 17.
Lafrance, at paras. 83 and 84.
Lafrance, at para. 85.
Lafrance, at para. 86.
Willier, at para. 42; R. v. Stevens, 2016 QCCA 1707, at para. 78.
Sinclair, at para. 50. Detention, Arrest, and the Right to Counsel, at p. 412.
Sinclair, at para. 50.
R. v. Madison, 2022 ONSC 2537, at para. 84, aff’d 2025 ONCA 42 [“Madison”]. In Madison, the Ontario Court of Appeal considered the voluntariness of the statement, but the findings on s. 10(b) were not raised as a ground of appeal. Justice Dambrot’s conclusion that taking swabs of the hands and photographs of the accused was a routine procedure was not considered by the Court of Appeal. See also Renaud c. R, 2022 QCCS 767, at para. 63. Detention, Arrest, and the Right to Counsel, at p. 413. In R. v. Briscoe, 2015 ABCA 2, 593 A.R. 102, the Alberta Court of Appeal stated at para. 48 that second consultation is required in “some special form of evidence gathering situation which significantly differs from what counsel could be reasonably expected to have told the detainee about” and which requires the accused’s consent or participation.
Madison (ONSC), at para. 84.
R. v. Pietz, 2025 MBCA 5, at para. 44. In Pietz, the Court of Appeal considered whether the police taking the accused on a drive around to relevant areas of a homicide was a non-routine procedure that entitled the accused to a second consultation with counsel. See also R. v. Ashmore, 2011 BCCA 18.
No evidence was tendered on the Charter application that the external swabs taken from Mr. Matin were relied upon for any further purpose including as comparison samples to other samples seized.
R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980.
Beierl, at para. 38.
Beierl, at paras. 41-44.
Beierl, at para. 51.
Willier, at para. 41.
Egwu, at para. 2.
Egwu, at para. 40
R. v. Broyles, 1991 CanLII 15 (SCC), [1991] 3 S.C.R. 595, at pp. 610-611. In Broyles, the Supreme Court of Canada considered whether the accused’s right to silence was breached when the police arranged for a friend of the accused to visit him in custody while wearing a body pack recording device to seek to elicit information about the killing the accused was charged with. The Supreme Court of Canada held that s. 7 and the right to silence will be engaged where the evidence was obtained by an agent of the state and was elicited. The court held that in determining whether the informer is a state agent, one should focus on the effect of the relationship between the informer and the authorities on the particular contact with the accused. There is a simple test: would the exchange between the accused and the informer have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents?
Egwu, at para. 44.
Egwu, at para. 60.
Egwu, at paras. 60-73.
Dussault, at para. 24.
Dussault, at paras. 3 and 28.
R. v. G.D.B., 2000 SCC 22 at paras. 26-29. A claim of ineffective assistance of counsel has two distinct components, performance and prejudice. To succeed, the appellant must establish both that counsel's acts or omissions were incompetent (performance) and that, as a result, a miscarriage of justice occurred (prejudice). Professional incompetence is assessed on a standard of reasonableness and it must be proven on a balance of probabilities. A miscarriage of justice resulting from professional incompetence may take many forms: In some instances, counsel's performance may have resulted in procedural unfairness. In others, the reliability of the trial's result may have been compromised. “In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis. The object of an ineffectiveness claim is not to grade counsel's performance or professional conduct. The latter is left to the profession's self-governing body. If it is appropriate to dispose of an ineffectiveness claim on the ground of no prejudice having occurred, that is the course to follow.”
R. v. Sullivan, 2022 SCC 19, [2022] 1 S.C.R. 460.
Eldridge, at para. 20.
Eldridge, at para. 35.
Eldridge, at para. 36.
McKinney v. University of Guelph, 1990 CanLII 60 (SCC), [1990] 3 S.C.R. 229 [“McKinney”].
Harrison v. University of British Columbia, 1990 CanLII 61 (SCC), [1990] 3 S.C.R. 451 [“Harrison”].
Stoffman v. Vancouver General Hospital, 1990 CanLII 62 (SCC), [1990] 3 S.C.R. 483 [“Stoffman”].
Douglas/Kwantlen Faculty Assn. v. Douglas College, 1990 CanLII 63 (SCC), [1990] 3 S.C.R. 570 [“Douglas”].
RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573 [“Dolphin Delivery”].
Eldridge, at para. 37.
Eldridge, at para. 38, citing Douglas, at pp. 584-585.
Lavigne v. O.P.S.E.U., [1992] 2 S.C.R. 211 [“Lavigne”].
Eldridge, at para. 39.
Eldridge, at paras. 40 and 41.
Eldridge, at paras.41 and 42.
Eldridge, at para. 43.
Eldridge, at para. 44. This test was recently applied in York Regional District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22, at para. 73 in which the Supreme Court of Canada concluded that the Charter applies to the actions of school boards and officials under the first branch of Eldridge because by its very nature or the degree of governmental control exercised over it, the entity is akin to government. As such, the Charter was found to apply to all of a school board’s (or officials) actions, including those that would otherwise be described as “private” and where they are carried out by a non-governmental actor. Ontario public school boards are, in effect, an arm of government, in that they exercise powers conferred on them by provincial legislatures, powers, and functions which they would otherwise have to perform themselves. Ontario public school boards did not fit under the second branch of Eldridge because they are not private entities carrying out a governmental activity. As such, all actions carried on by Ontario public school boards are subject to Charter scrutiny, including the principal’s actions when he acted in his official capacity as an agent of the Board, a statutory delegate and not in his personal capacity.
2024 SCC 22, at para. 7.
Ibid.
Ibid.
Pea, at para. 19.
Egwu, at para. 43.
Egwu, at para. 46.
R. v. Dorsay, 2002 BCSC 1807 [“Dorsay”].

Footnotes

Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [“Charter”].
[1990] 1 S.C.R. 190, 1990 CanLII 123 (SCC) [“Brydges”].
Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624 [“Eldridge”]; 1997 CarswellBC 1940.
The Applicant relies on R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 25 in advancing this argument.
R. v. Beierl, [2010] O.J. No. 2708 (S.C.), leave to appeal refused, 2010 ONCA 697, leave to appeal refused, [2011] S.C.C.A. No. 33997 [“Beierl”].
R. v. Pea, 2008 CanLII 89824 (ON CA), 93 O.R. (3d) 67 (C.A.).
Supra, note 5.
R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135 [“Rover”].
R. v. Dussault, 2022 SCC 16, [2022] 1 S.C.R. 306 [“Dussault”].
The pre-requisites of past recollection recorded were met: Mr. Melady had no present recollection of his interaction with Mr. Matin. The document was created by Mr. Melady at a time when his memory was fresh so that it was vivid and probably accurate. Mr. Melady’s evidence establishes that the log accurately represents his recollection at the time it was made. Witnesses who do not have a present memory of a fact or event may with leave of the court, “refresh their memory” in court from a document or an electronic record that reliably recorded their memory at, or soon after the time of the event. Where the “past recollection recorded” doctrine applies, witnesses can present the recorded memory as part of their testimony, even if seeing the record does not spark a present memory. See David M. Paciocco, Palma Paciocco, and Lee Stuesser. The Law of Evidence. 8th Edition. Irwin Law. 2020. Toronto, Ontario., a pp. 539-540.
R. v. Braithewaite, [2002] O.J. No. 1955 (S.C.J.)
R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 40 [“Subero”]; R. v. LaFrance, 2022 SCC 32, [2022] 2 S.C.R. 393, at paras. 78-79 [“LaFrance”].
Suberu, at para. 40; LaFrance, at para. 78, citing R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 28.
R. v. Dussault, 2022 SCC 16, [2022] 1 S.C.R. 306, at para. 30, citing R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 24 [“Sinclair”].
Brydges, at pp. 202-203. R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 SCR 1233, at pp. 1242-1243 [“Manninen”].
Rover, at para. 45. In Dussault, at para. 56, the Supreme Court of Canada endorsed Doherty JA’s description of the right to counsel as a “lifeline” through which detained persons obtain legal advice.
R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at paras. 24-25. Dussault, at para. 31; Sinclair, at para. 27; and Manninen, at pp. 1242-1243.
Brydges, at para. 24; R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at p. 201. “A detainee is entitled under the informational component of s. 10(b)…to be advised of whatever system for free, preliminary legal advice exists in the jurisdiction and how such advice can be accessed (e.g. by calling a 1-800 number or being provided with a list of telephone numbers for lawyers acting as duty counsel).”R. v. Pozniak, 1994 CanLII 66 (SCC), [1994] 3 S.C.R. 310. Notably, in R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236, the Supreme Court of Canada held that there is no constitutional right to state funded duty counsel per se.
Dussault, at para. 32, citing Sinclair, at para. 47.
R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 42 [“Willier”].
Willier, at para. 41.
LaFrance, at para. 73.
Dussault, at para. 34.
Sinclair, at para. 48.
LaFrance, at paras. 47-55. Sinclair, at para. 2; Dussault, at para. 34. These categories are not closed and there may be additional circumstances that could result in an accused being entitled to further consultation with counsel.
Dussault, at para. 34. One example of the third category identified by the Supreme Court of Canada is where the police undermine confidence in counsel or the advice given by counsel because it undercuts the purpose of s. 10(b). As a result, the Supreme Court of Canada held that it is necessary in such circumstances for the police to give the detainee a further opportunity to consult counsel to counteract these effects because the earlier advice may have been nullified or distorted.
Sinclair, at para. 57.
In R. v. Edwards, 2024 ONCA 135, at paras. 36- 44, the Ontario Court of Appeal speaks of the joint effort of the police and a detainee to implement his right to counsel. While Edwards is a decision regarding whether the police were reasonably diligent in implementing counsel of choice, it makes it clear that the obligation of the police to facilitate contact with counsel and the responsibility of the detainee to take reasonable steps to contact counsel work in tandem. The police must take reasonable steps to connect a detainee with counsel of choice, and the detainee must exercise reasonable diligence in connecting with counsel of choice.
Willier, at paras. 40 and 41.
Willier, at para. 42.
R. v. Beauregard, 2016 ABCA 37 [“Beauregard”].
Beauregard, at para. 7.
Beauregard, at paras. 14-17. See also R. v. Liew, 1998 ABCA 98, where the police gave access to the accused to a phone to contact counsel. He was only able to leave a message on his lawyer’s phone. The police never asked if he had been successful in contacting counsel and the accused did not tell the police he had not reached his lawyer. The Alberta Court of Appeal held that the police fulfilled their s. 10(b) duties at para. 18: “They informed Liew of his right to counsel and provided him with a reasonable opportunity to exercise that right. There was nothing that would have alerted the police to the fact that Liew had been unable to contact counsel. He did not tell them of his difficulty. The police are not mind-readers and, as this Court has said in the past, they are not there to play ‘Twenty Questions’.”
R. v. Osmond, 2007 BCCA 470.
Davin Michael Garg, Anil Kapoor, Detention, Arrest, and the Right to Counsel. (Toronto: Emond Publishing, 2024) at 406 [“Detention, Arrest, and the Right to Counsel”].
Lafrance, at para. 17.
Lafrance, at paras. 83 and 84.
Lafrance, at para. 85.
Lafrance, at para. 86.
Willier, at para. 42; R. v. Stevens, 2016 QCCA 1707, at para. 78.
Sinclair, at para. 50. Detention, Arrest, and the Right to Counsel, at p. 412.
Sinclair, at para. 50.
R. v. Madison, 2022 ONSC 2537, at para. 84, aff’d 2025 ONCA 42 [“Madison”]. In Madison, the Ontario Court of Appeal considered the voluntariness of the statement, but the findings on s. 10(b) were not raised as a ground of appeal. Justice Dambrot’s conclusion that taking swabs of the hands and photographs of the accused was a routine procedure was not considered by the Court of Appeal. See also Renaud c. R, 2022 QCCS 767, at para. 63. Detention, Arrest, and the Right to Counsel, at p. 413. In R. v. Briscoe, 2015 ABCA 2, 593 A.R. 102, the Alberta Court of Appeal stated at para. 48 that second consultation is required in “some special form of evidence gathering situation which significantly differs from what counsel could be reasonably expected to have told the detainee about” and which requires the accused’s consent or participation.
Madison (ONSC), at para. 84.
R. v. Pietz, 2025 MBCA 5, at para. 44. In Pietz, the Court of Appeal considered whether the police taking the accused on a drive around to relevant areas of a homicide was a non-routine procedure that entitled the accused to a second consultation with counsel. See also R. v. Ashmore, 2011 BCCA 18.
No evidence was tendered on the Charter application that the external swabs taken from Mr. Matin were relied upon for any further purpose including as comparison samples to other samples seized.
R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980.
Beierl, at para. 38.
Beierl, at paras. 41-44.
Beierl, at para. 51.
Willier, at para. 41.
Egwu, at para. 2.
Egwu, at para. 40
R. v. Broyles, 1991 CanLII 15 (SCC), [1991] 3 S.C.R. 595, at pp. 610-611. In Broyles, the Supreme Court of Canada considered whether the accused’s right to silence was breached when the police arranged for a friend of the accused to visit him in custody while wearing a body pack recording device to seek to elicit information about the killing the accused was charged with. The Supreme Court of Canada held that s. 7 and the right to silence will be engaged where the evidence was obtained by an agent of the state and was elicited. The court held that in determining whether the informer is a state agent, one should focus on the effect of the relationship between the informer and the authorities on the particular contact with the accused. There is a simple test: would the exchange between the accused and the informer have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents?
Egwu, at para. 44.
Egwu, at para. 60.
Egwu, at paras. 60-73.
Dussault, at para. 24.
Dussault, at paras. 3 and 28.
R. v. G.D.B., 2000 SCC 22 at paras. 26-29. A claim of ineffective assistance of counsel has two distinct components, performance and prejudice. To succeed, the appellant must establish both that counsel's acts or omissions were incompetent (performance) and that, as a result, a miscarriage of justice occurred (prejudice). Professional incompetence is assessed on a standard of reasonableness and it must be proven on a balance of probabilities. A miscarriage of justice resulting from professional incompetence may take many forms: In some instances, counsel's performance may have resulted in procedural unfairness. In others, the reliability of the trial's result may have been compromised. “In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis. The object of an ineffectiveness claim is not to grade counsel's performance or professional conduct. The latter is left to the profession's self-governing body. If it is appropriate to dispose of an ineffectiveness claim on the ground of no prejudice having occurred, that is the course to follow.”
R. v. Sullivan, 2022 SCC 19, [2022] 1 S.C.R. 460.
Eldridge, at para. 20.
Eldridge, at para. 35.
Eldridge, at para. 36.
McKinney v. University of Guelph, 1990 CanLII 60 (SCC), [1990] 3 S.C.R. 229 [“McKinney”].
Harrison v. University of British Columbia, 1990 CanLII 61 (SCC), [1990] 3 S.C.R. 451 [“Harrison”].
Stoffman v. Vancouver General Hospital, 1990 CanLII 62 (SCC), [1990] 3 S.C.R. 483 [“Stoffman”].
Douglas/Kwantlen Faculty Assn. v. Douglas College, 1990 CanLII 63 (SCC), [1990] 3 S.C.R. 570 [“Douglas”].
RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573 [“Dolphin Delivery”].
Eldridge, at para. 37.
Eldridge, at para. 38, citing Douglas, at pp. 584-585.
Lavigne v. O.P.S.E.U., [1992] 2 S.C.R. 211 [“Lavigne”].
Eldridge, at para. 39.
Eldridge, at paras. 40 and 41.
Eldridge, at paras.41 and 42.
Eldridge, at para. 43.
Eldridge, at para. 44. This test was recently applied in York Regional District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22, at para. 73 in which the Supreme Court of Canada concluded that the Charter applies to the actions of school boards and officials under the first branch of Eldridge because by its very nature or the degree of governmental control exercised over it, the entity is akin to government. As such, the Charter was found to apply to all of a school board’s (or officials) actions, including those that would otherwise be described as “private” and where they are carried out by a non-governmental actor. Ontario public school boards are, in effect, an arm of government, in that they exercise powers conferred on them by provincial legislatures, powers, and functions which they would otherwise have to perform themselves. Ontario public school boards did not fit under the second branch of Eldridge because they are not private entities carrying out a governmental activity. As such, all actions carried on by Ontario public school boards are subject to Charter scrutiny, including the principal’s actions when he acted in his official capacity as an agent of the Board, a statutory delegate and not in his personal capacity.
2024 SCC 22, at para. 7.
Ibid.
Ibid.
Pea, at para. 19.
Egwu, at para. 43.
Egwu, at para. 46.
R. v. Dorsay, 2002 BCSC 1807 [“Dorsay”].

R. v. Daniil Matin, 2026 ONSC 3232

Case Summary

Reasons for Judgment on Personal s. 10(b) Application

A. OvERView

B. Summary of the Evidence on Voir Dire

C. Findings of Fact

D. Governing Legal Principles s. 10(b):

E. Duty Counsel is not A State Actor

R. v. Braithwaite, [2002] O.J. No. 1955 (S.C.) [“Braithwaite”]– s. 10(b) of the Charter Does not Guarantee Quality Legal Assistance

R. v. LaChappelle (2007), 2007 ONCA 655, 229 O.A.C. 206

R. v. Pea (2008), 2008 CanLII 89824 (ON CA), 93 O.R. (3d) 67 (C.A.) – Incompetent Duty Counsel Advice (not to blow) does not equal Officially Induced Error

R. v. Beierl, [2010] O.J. No. 2708 (S.C.), leave to appeal refused, 2010 ONCA 697, leave to appeal refused, [2011] S.C.C.A. No. 33997 – No Qualitative Component to Right to Counsel

R. v. Egwu, 2023 ONSC 3326 [“Egwu”]

Dussault Did Not Find that s. 10(b) Guarantees the Quality of Legal Advice

F. Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624

G. Conclusions – State Agency

CITATION: R. v. Daniil Matin, 2026 ONSC 3232

SUPERIOR COURT OF JUSTICE

Footnotes

R. v. Daniil Matin, 2026 ONSC 3232

Case Summary

Reasons for Judgment on Personal s. 10(b) Application

A. OvERView

B. Summary of the Evidence on Voir Dire

C. Findings of Fact

D. Governing Legal Principles s. 10(b):

E. Duty Counsel is not A State Actor

R. v. Braithwaite, [2002] O.J. No. 1955 (S.C.) [“Braithwaite”]– s. 10(b) of the Charter Does not Guarantee Quality Legal Assistance

R. v. LaChappelle (2007), 2007 ONCA 655, 229 O.A.C. 206

R. v. Pea (2008), 2008 CanLII 89824 (ON CA), 93 O.R. (3d) 67 (C.A.) – Incompetent Duty Counsel Advice (not to blow) does not equal Officially Induced Error

R. v. Beierl, [2010] O.J. No. 2708 (S.C.), leave to appeal refused, 2010 ONCA 697, leave to appeal refused, [2011] S.C.C.A. No. 33997 – No Qualitative Component to Right to Counsel

R. v. Egwu, 2023 ONSC 3326 [“Egwu”]

Dussault Did Not Find that s. 10(b) Guarantees the Quality of Legal Advice

F. Eldridge v. British Columbia (Attorney General), 1997 CanLII 327 (SCC), [1997] 3 S.C.R. 624

G. Conclusions – State Agency

CITATION: R. v. Daniil Matin, 2026 ONSC 3232

SUPERIOR COURT OF JUSTICE

Footnotes