Special Issues with Right to Counsel

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General Principles

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 CCC (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.")

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.