Right to Additional Opportunities to Consult with Counsel

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General Principles

See also: Implementation Component to Right to Counsel

Generally, once a detainee has finished exercising their right to counsel they have no further ability to access counsel again.[1] The right is "essentially a one time matter", unless it falls into one of the exceptions.[2]

Absent one of the exceptions, further access to counsel beyond the first consultation is entirely discretionary.[3] This applies even where the police may have promised further access.[4]

  1. R v Sinclair, 2010 SCC 35 (CanLII), [2010] 2 SCR 310, per McLachlin C.J. and Charron J.
  2. Sinclair, ibid. at para 64
  3. R v Briscoe 2012 ABQB 111 (CanLII) at para 113
  4. Briscoe, ibid. at para 114, 119

Exceptions

Several exceptions exist:[1]

  • Where during the investigation "new or non-routine procedures involving the detainee" are being applied, the accused should be permitted counsel.[2]
  • where the jeopardy increases due to new evidence rendering the offence more serious or new, more serious charges arise.[3]
  • if it is learned that the previous waiver of rights was not done properly.[4]
  • the previous caution was insufficient or defective
  • "change in circumstances results from new procedures involving the detainee"
  • "developments in the investigation" such that they accuse must chose "whether they should ... cooperate with the investigation or not"

The categories of circumstances that require additional access to counsel is not a "closed" list.[5]

Change in Circumstances Exception
The detainee will get an additional chance to consult with counsel where there had been a "change in circumstances" that are objectively observable that renders access "necessary to fulfill s. 10(b)’s purpose of providing the detainee with advice in the new or emergent situation".[6]

  1. R v Sinclair, 2010 SCC 35 (CanLII), [2010] 2 SCR 310, per McLachlin C.J. and Charron J., at para 2
    R v MacLean, 2013 ABQB 60 (CanLII) at para 24
    R v M(AR), 2011 ABCA 98 (CanLII) at para 38 leave denied
  2. Sinclair, supra at paras 50-52
    R v Ross, 1989 CanLII 134 (SCC), [1989] 1 SCR 3
  3. Sinclair, supra at paras 50-52
    See R v Evans, 1991 CanLII 98 (SCC), [1991] 1 SCR 869 R v Black, 1989 CanLII 75 (SCC), [1989] 2 SCR 138;
  4. See R v Burlingham, 1995 CanLII 88 (SCC), [1995] 2 SCR 206
  5. Sinclair, supra
  6. Sinclair, supra at para 54

New Procedure

Where new or non-routine procedures involving the detainee arise, the detainee should be permitted new access to counsel.[1]

The applicable procedures will not be those that are part of "predictable police questioning".[2]

The procedure will arise where the detainee's participation is "essential" and they have a right to decline participation or a right to understand the procedure.[3]

"Non-routine" procedures will include participation in a life-up or submitting to a polygraph.[4]

A "re-enactment" is not considered a non-routine procedure. It is merely a "statement by conduct".[5]

  1. R v M(AR), 2011 ABCA 98 (CanLII)
  2. R v Briscoe, 2015 ABCA 2 (CanLII) at para 48
  3. R v Biscoe at para 48
  4. R v Sinclair at para 50
  5. R v Ashmore, 2011 BCCA 18 (CanLII)

Change of Jeopardy

While a detainee is in custody on charges and has received access to counsel, but at some point later the circumstances of the detainment change and further charges are being investigated resulting in a change in jeopardy in the detainee, the accused must be given a further opportunity to consult with counsel on the new situation.[1]

A change in circumstances "must be objectively observable in order to trigger additional implementational duties for the police".[2] The change in circumstances must suggest "that the choice faced by the accused has been significantly altered" requiring advice in order to fill the purposes of the charter right.[3]

There will only be a breach 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".[4]

Where a person was given access to counsel on arrest, a laying of the charge on the offence for which he was arrested is not a change of circumstances.[5]

Police may assume that the initial legal advice received was sufficient and correct in relation to how the detainee should exercise his rights in the context of the police investigation.[6]

  1. R v Black, 1989 CanLII 75 (SCC), [1989] 2 SCR 138
    R v Sinclair, 2010 SCC 35 (CanLII), [2010] 2 SCR 310
  2. Sinclair
  3. Sinclair
  4. Sinclair
  5. R v Bhander, 2012 BCCA 441 (CanLII) at para 40 to 46
  6. Sinclair