Right to Counsel

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General Principles

Upon arrest or detention, an accused has a constitutional right to counsel under s. 10(b) of the Charter.

10. Everyone has the right on arrest or detention...
b) to retain and instruct counsel without delay and to be informed of that right; ...


CCRF

Section 10(b) is engaged any time where an individual is "deprived of liberty and in control of the state", consequently are "vulnerable to the exercise of its power and in a position of legal jeopardy". This right attempts to "mitigate this legal disadvantage" and promote "principles of adjudicative fairness".[1]

Obligations Imposed by Right
Section 10(b), when invoked, imposes several obligations:[2]

  1. the officer must inform the detainee of his right to instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel;
  2. if the detainee has indicated a desire to exercise this right, the officer must provide the detainee with a reasonable opportunity to exercise that right, except in urgent and dangerous circumstances;
  3. the officer must refrain from eliciting evidence from the detainee until he has had that reasonable opportunity to contact counsel, except in urgent and dangerous circumstances.

The first two obligations are known as the informational component and implementation component.[3] These components impose a duty on the detaining or arresting officer to inform the accused that they have the right to counsel and to ensure that they have the opportunity to exercise the right.

Onus or Burden
The onus is upon the accused to establish they right s. 10(b) Charter rights were violated. This includes the burden to show that the detainee acted diligently.[4]

Where the detainee has invoked the right to counsel, the Crown has the onus of establishing that the detainee was provided with a reasonable opportunity to exercise that right.[5]

Purpose
The purpose of the right to counsel is to permit a detainee "to be informed of his rights and obligations" and "to obtain advice as to how to exercise those rights".[6] It is intended to "ensure a level legal terrain for the detainee".[7]

It is also to assist the detainee to determine whether to cooperate or not.[8] For this reason there should only be access to counsel once.[9]

Effect of Right
The police must inform the detainee of their right to counsel without delay and the availability of legal aid and duty counsel.[10] The police must advise the detainee "of whatever system for free and immediate, preliminary legal advice exists in the jurisdiction at the time of detention and of how such advice can be accessed".[11]

If the detainee wishes to access counsel, the police must provide a reasonable opportunity to exercise that right and stop from taking any statements. [12]

The detained person must be reasonably diligent in exercising their right. [13]

The right does not extend to guaranteeing a "right of the detainee to appreciate the evidential situation when he intersects with the police."[14]

As soon as the right is properly asserted, the police have an obligation to assist the detainee in exercising that right without delay.[15] The police must also cease questioning or otherwise attempting to elicit evidence until the detainee has been given a reasonable opportunity to retain and instruct counsel.[16] The only exception to this is where there has been a clear waiver.[17]

The police are obliged to comply with s. 10(b) "immediately".[18]

The detainee or accused does not need to "make an express request to use the telephone"[19]


Police must cease questioning while under the obligation to facilitate access to counsel unless in the case of urgency.[20]

Answering questions that are asked in violation of s. 10(b) cannot be held to be a waiver of those rights.[21]

Satisfying Right
The judge must first determine whether, in all of the circumstances, the police provided the detainee with a reasonable opportunity to exercise the right to counsel.[22]

It is suggested that in "most cases" where the detainee invokes their 10(b) rights, a caution followed by an opportunity to consult counsel will be sufficient.[23]

  1. R v Willier, 2010 SCC 37 (CanLII), at para 28
    Clarkson v The Queen, 1986 CanLII 61 (SCC), [1986] 1 SCR 383
    R v Brydges, 1990 CanLII 123 (SCC), [1990] 1 SCR 190
  2. R v Prosper, 1994 CanLII 65 (SCC), [1994] 3 SCR 236 at para 34
    R v Bartle, 1994 CanLII 64 (SCC), [1994] 3 SCR 173 at para 17
    R v MacLean, 2013 ABQB 60 (CanLII) summarizing at para 18
  3. R v Luong 2000 ABCA 301 (CanLII) at para 12
  4. Luong, ibid. at para 12
    R v Willier, 2010 SCC 37 (CanLII) - the onus is on applicant to show access to counsel did not correct "power imbalance"
  5. Luong, supra at para 12
  6. R v Manninen, 1987 CanLII 67 (SCC), [1987] 1 SCR 1233, at pp. 1242 to 43 per Lamer J (as he was)
    Brydges, supra
  7. R v Briscoe, 2015 ABCA 2 (CanLII) at para 47
  8. R v Sinclair 2010 SCC 35 (CanLII)
  9. Sinclair, ibid.
  10. R v Brydges, [1990] 1 SCR 190, 1990 CanLII 123 (SCC)
  11. R v Pozniak, [1994] 3 SCR 310, 1994 CanLII 66 (SCC)
  12. R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233
  13. R v Basko 2007 SKCA 111 (CanLII) at para 21
  14. Briscoe, supra at para 48
  15. R v Manninen at para 22
  16. R v Burlingham, 1995 CanLII 88 (SCC), [1995] 2 SCR 206 at para 13
    Manninen at para 23
  17. Manninen at para 23
  18. R v Suberu, 2009 SCC 33 (CanLII) at paras 2, 37, 39, 41-42
  19. Manninen, supra
  20. Manninen
  21. Manninen
  22. R v Luong at para 12
  23. R v Sinclair 2010 SCC 35 (CanLII) at para 2

Cautioning Without Detention or Arrest

Anytime where a peace officer is interviewing a person for whom "there are reasonable grounds to suspect that the person ... has committed an offence", the officer should caution them.[1]

The basis of suspicion must be based on more than "mere speculation...or...even...reliable information that may warrant further inquiry".[2]

  1. R v Singh, 2007 SCC 48 (CanLII) at para 32
  2. R v AD, [2003] OJ No 4901 (SCJ)(*no link) at para 75
    R v Chui, 2015 ONSC 552 (CanLII)

Informational Component

Implementation Component

Post-Fulfillment

Once the right to speaking with counsel has been fulfilled the officer need to cease the interview simply because the accused does not want to speak with them.[1]

Once the obligations have been fulfilled the police may undertake questioning at will and do not need to stop by further requests for a chance to speak with a lawyer.[2] However, if counsel is on the way, they must wait for counsel to arrive.[3]

The police do not need to cease a lawful search while the accused seeks counsel.[4]

Once the suspect has been given access to counsel, the police may interview him even after he has been remanded under a detention order without any need to provide him with counsel again.[5]

The exercise of the right to silence in response to any question, unless justified another another rule of evidence, cannot be admitted against the accused for any purpose.[6]

  1. R v Baidwan
    R v Singh, [2007] 3 SCR 405, 2007 SCC 48 (CanLII)
    R v Bohnet, 2003 ABCA 207(CanLII)
    R v Gormley, 1999 CanLII 4160 (PE S.C.A.D.)
    R v Reddick (1987), 77 NSR 92d) 439 (NSCA)
  2. R v Wood, 1994 CanLII 3976 (NS CA)
  3. R v Howard (1983) Ont.C.A.
  4. R v Borden 1994 CanLII 63 (SCC), [1994] 3 SCR 145
  5. R v Bhander, 2012 BCCA 441 (CanLII)
    c.f. R v Precourt, 1976 CanLII 692 (ON CA), (1976), 39 CCC (2d) 311 (Ont. C.A.)
  6. R v Chambers, [1990] 2 SCR 1293, 1990 CanLII 47 (SCC), per Cory J

Additional Opportunities to Consult with Counsel

Special Issues

Where there has been a breach of s. 10(b) right for a statement and then a later statement was taken that on its face may not be an independent breach, the subsequent breach may still be "tainted" by the earlier breach allowing for a potential remedy under s. 24(2).[1]

The court have adopted a "purposive and generous approach" when considering tainting by earlier Charter breaches. The accused does not need to establish a strict causal relationship between the breach and subsequent statement. The statement is tainted where the breach and subsequent statement were "part of the same transaction or course of conduct.[2] The connection is "temporal, contextual, causal, or combination of the three."[3]

A "remote" or "tenuous" connection is not sufficient.[4]

  1. R v Wittwer, 2008 SCC 33 (CanLII) at para 21
  2. R v Strachan at p. 1005
  3. R v Plaha, 2004 CanLII 21043 (ONCA) at para 45
  4. R v Goldhart, 1996 CanLII 214 (SCC), [1996] 2 SCR 463 at para 40
    R v Plaha at para 45

Communication Difficulties

Where a detainee may not understand the information being told to them, it cannot be resolved by simply reading the standard text.[1]

Limited signs of comprehension of English can be enough for the court to find that the accused did not understand his rights.[2]

Where the officer is aware that the person's first language is not English, then they should be cautious and slow when going through the instructions.[3]

It should only be in exceptional circumstances where the officer is under an obligation to arrange for an interpreter to ensure that they understand their rights.[4]

  1. R v Evans 1991 CanLII 98 (SCC), [1991] 1 SCR 869 at para 21
  2. See R v Brissonnet 2006 ONCJ 31 (CanLII)
  3. R v Prodan 2007 ONCJ 551 (CanLII) - officer heard accent, went very fast through caution
  4. R v Liagon, 2012 ABPC 56 (CanLII)


"Fresh Start" to Correct Errors

Where police realize that they made a "constitutional mis-step" in their procedure comply with s. 10(a) or (b) Charter rights, the police can engage in a "fresh start" to rehabilitate the process. [1] This process can have the effect of "severing" the link between the original tainted evidence and the new evidence obtained after the fresh start.[2] This severance will come into play at the s. 24(2) contextual Charter analysis.[3]

The "fresh start" principle applies not only to successive statements to persons in authority.[4]


  1. R v Manchulenko, 2013 ONCA 543 (CanLII), per Watt JA
    R v ET (1993), 1993 CanLII 51 (SCC), 86 C.C.C. (3d) 289 (S.C.C.)
    R v Karafa, 2014 ONSC 2901 (CanLII)
  2. Manchulenko, supra
  3. Manchulenko, supra
  4. Mancheulenko, supra ("No principled reason exists to confine the "fresh start" jurisprudence to cases involving successive statements made to persons in authority. The rationale that underpins the "fresh start" principle is the same irrespective of the specific form the evidence proposed for admission takes.")

Waiver of Right to Counsel

The onus is on the Crown to prove that there was a valid waiver of Charter rights.[1]

A line of cases suggests that answers along the line of “no, not right now” is a equivocal answer due to its ambiguity of interpretation.[2]

Answers such as “what will they do for me?” was equivocal and so was not sufficient.[3] Other equivocal answers include:

  • "no, what for?"[4]
  • "I don't have a lawyer, it's just a waste of time, I'm fine to drive" [5]

However, several answers have been found to be unequivocal and so amount to a waiver:

  • “No, I have no use to call one”[6]
  • “No, I’ll talk to one tomorrow”[7]

In response to a comment such as “not right now”, if the officer explains how to engage the right at a later point--such as stating, “if you change your mind at any time tonight during this whole process”--then the waiver will be considered valid.[8]

Wording such as “no, I don’t think so” will often turn on the wording used, including whether it was confidently said, quickly said, or subjectively showed some doubt to the officer.[9]

  1. R v Luong 2000 ABCA 301 (CanLII) at para 12
  2. e.g. R v Jackman 2008 ABPC 201 (CanLII)
    R v Turcott 2008 ABPC 16 (CanLII)
    R v Bruno 2009 ABPC 232 (CanLII)
  3. R v Shaw 2001 ABPC 84 (CanLII)
  4. R v Wycislak, 2011 BCPC 175 (CanLII)
  5. R v Watt, 2009 MBQB 297 (CanLII)
  6. R v Moore 2007 ABQB 638 (CanLII)
  7. R v Mwangi, 2010 ABPC 243 (CanLII) - court said it was unequivocal because there was only one interpretation of wording
  8. R v MacGregor, 2012 NSCA 18 (CanLII) at para 31
    R v Seehra, 2009 BCPC 194 (CanLII)
  9. e.g. R v Korn, 2012 ABPC 20 (CanLII) at para 46

Prosper Warning

Where an accused is detained and asserts the right to counsel in a diligent manner and then changes their mind, the police must administer a “Prosper Warning”. This warning requires the officer to tell the detainee that he still has a right to a reasonable opportunity to contact a lawyer, and that during this time the police cannot take any statements until he had had a reasonable opportunity to contact a lawyer.[1] If the officer fails to give the Prosper warning, there will be a Charter violation.

  1. R v Prosper, 1994 CanLII 65 (SCC), [1994] 3 SCR 236 at p. 378-79

Young Persons

Section 25(1) of the YCJA gives the youth a right to retain and instruct counsel without delay.[1]

The basic adult rights regarding counsel are still in effect for a youth. However, section 146 creates additional benefits upon the young accused and obligations upon the police when providing the right to counsel. The additional rights not otherwise available to adults include:

  • the youth will be given a reasonable opportunity to consult with a parent or responsible adult
  • any statement must be given in front of a lawyer and parent or responsible adult unless the right is waived;
  • the waiver of this right must be audio or video taped or be in writing.

Proof of compliance with these standards is proof beyond a reasonble doubt.[2]

The reason for these additional protections and high standard of proof on the Crown is because of the constitutional requirement of a separate system arising from the youth's reduced moral blameworthiness and culpability.[3] More to the point, youths are "far more easily impressed and influenced by authoritarian figures".[4]

  1. YCJA
  2. R v L.T.H., 2008 SCC 49 (CanLII), [2008] 2 SCR 739
  3. R v DB 2008 SCC 25 (CanLII)
  4. R v JTJ 1990 CanLII 85 (SCC), [1990] 2 SCR 755 at p. 766

Foreign Nationals

Upon arrest of a foreign national, the accused has a right to contact the consul of his native country pursuant to Article 36 of the Vienna Convention which states:

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;
(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph;
(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

2. The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended.


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See Also