Provincial and Criminal Offences
In the conclusion to a paper discussing law reform and text-based online violence against women (OVAW), Barker and Jurasz (2021) asserted that ‘the law itself cannot (and should not) be charged with tackling the phenomenon’ (261). The following is a critical discussion of this statement. The paper begins with a review of the government’s current legislative approach to OVAW. It then reviews the limited case law available. The discussion proceeds to cite relevant recommendations, and closes with remarks on efforts in Scotland to expand the law to address the phenomenon.
It's unlikely. In R v LS (2021 ONSC 4429), the defence was looking forward to cross-examining a witness. The Crown changed its mind about calling her. The resourceful defence, relying on R v Finta (1994 SCC 129), asked the Court to call the witness.
The Court decided the circumstances were "very far removed" from those of Finta:
In our case, it is not at all necessary for this Court to call A.C. as a witness at trial. The defence is perfectly capable of doing so. In fact, the defence has the fortunate assurance of knowing that A.C. cannot easily resile from the evidence that the defence wants to elicit at trial because I am told that the said evidence is contained, expressly, in the statement that she gave to the police. Hence, the full toolkit will be available to Mr. Edgar, experienced defence counsel, including sections 9(1) and 9(2) of the Canada Evidence Act, RSC 1985, c C-5, as amended, if necessary. (23)
I admit, the title is a bit of an exaggeration. Detainees have the right to counsel, and police have a positive duty to implement this right. However, the detainee also has duties. In R. v. Sivalingam, 2019 ONCJ 239, Schwarzl, J. provided a good overview of the principles involved. The decision has been cited dozens of times throughout Canada though not, as of June 2021, by a higher court.
[40.] First, where the police assist the detainee or control the means of exercising his rights to counsel, the police must be reasonably diligent, which is the same standard to which the detainee is held if he was implementing his rights on his own: R. v. Wilding, 2007 ONCA 853 (CanLII),  O.J. No. 4776 (C.A.); R. v. Vernon, 2015 ONSC 3943 (CanLII),  O.J. No. 4157 (S.C.J.), leave to appeal refused 2016 ONCA 211; R. v. O’Shea,  O.J. No. 1178 (S.C.J.).
[41.] Second, while police must be reasonably diligent in assisting the detainee in exercising his rights to counsel, they are not required to exhaust all reasonable means for the detainee to speak with a lawyer: R. v. Winterfield, 2010 ONSC 1288 (CanLII),  O.J. No. 952 (S.C.J.) ¶ 46 – 67; R. v. Sharma,  O.J. No. 2991 (S.C.J.).
[42.] Third, having consideration for the circumstances of each case, the test is not whether the police could or should have done more, but rather whether the police provided the detainee with the necessary information and assistance to allow him to exercise his rights: R. v. Gentile,  O.J. No. 3664 (S.C.J.) at ¶ 24; R. v. Blackett,  O.J. No. 2999 (S.C.J.) at ¶ 23 – 24, and 29; R. v. Antoninas, 2014 ONSC 4220 (CanLII),  O.J. No. 5226 (S.C.J.) at ¶ 93; and R. v. Vernon, supra.
[43.] Fourth, the detainee is required to be reasonably diligent in the pursuit of his rights: R. v. Leclair and Ross (1989), 1989 CanLII 134 (SCC), 46 C.C.C. (3d) 129 (S.C.C.) at p. 135; R. v. Littleford, 2001 CanLII 8559 (ON CA),  O.J. No. 2437 (C.A.); R. v. Richfield (2003), 2003 CanLII 52164 (ON CA), 178 C.C.C. (3d) 23 (Ont. C.A.); R. v. Clarke, 2005 CanLII 15452 (ON CA),  O.J. No. 1825 (C.A.) at ¶ 31-33; R. v. Van Binnendyk,  O.J. No. 2899 (C.A.).
[44.] Fifth, where a detainee wants to call a specific lawyer or a third party to access counsel, he has a duty to tell the police who he wants to call and why: R. v. Williams,  O.J. No. 2559 (C.A.) at ¶ 39; R. v. Johnston (2004), 2004 BCCA 148 (CanLII), 183 C.C.C. (3d) 157 (B.C.C.A.); R. v. Antoninas, 2014 ONSC 4220 (CanLII),  O.J. No. 5226 (S.C.J.); R. v. Cheema, 2018 ONSC 229 (CanLII),  O.J. No. 121 (S.C.J.) at ¶ 31; R. v. Mumtaz,  O.J. No. 229 (S.C.J.) at ¶ 25 – 28.
[45.] Sixth, unless the detainee expresses to the police dissatisfaction with the legal advice received, he is not entitled to Charter relief: R. v. Neziol,  O.J. No. 4372 (S.C.J.); R. v. Kumarasamy,  O.J. No. 303 (S.C.J.); R. v. Cairns, 2004 CanLII 17588 (ON CA),  O.J. No. 210 (C.A.); R. v. Burley (2004), 2004 CanLII 9437 (ON CA), 181 C.C.C. (3d) 463 (Ont. C.A.); R. v. Clarke, supra at ¶ 31- 33; R. v. Traicheff,  O.J. No. 4361 (S.C.J.), aff’d  O.J. No. 5355 (C.A.); R. v. Shoker,  O.J. No. 4563 (S.C.J).
On the facts, the court found that the Defendant had not demonstrated that it was more likely than not that the police breached his right to counsel.
As cross-examiner, you can (and should) be vigorous and thorough. It is not "abusive" to challenge a witness on unpleasant things, for example, their biases or their criminal record, as long as your question is asked in good faith and is not intended to mislead the witness. But there are limits.
There are three types of provincial offences: mens rea, strict liability and absolute liability. The type of offence has consequences for both the prosecutor and the defendant. A two-step analysis may be used to identify the type of offence.