Informational Component to Right to Counsel

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2019. (Rev. # 95877)

General Principles

See also: Right to Counsel and Implementation Component to Right to Counsel

The informational duty component to the right to counsel requires the peace officer to inform the detainee of his right to retain and instruct counsel without delay. This includes clear and unambiguous information that conveys that:

  • access to counsel is immediate
  • access to counsel will be facilitated by police
  • access to counsel is free if they do not have a lawyer of choice
Purpose of Informational Component

The right to counsel can only be properly realized where the accused is given an opportunity to fully understand the jeopardy that they are in and appreciate the consequences of the decision to speak to counsel. Thus, they must be informed of the offence as part of the informational component.[1]

Burden of Proof

Absent proof of circumstances showing that the accused did not understand his right to counsel when he was informed of it, then the onus is on the detainee to prove that he was denied an opportunity to ask for counsel at the time of detention.[2]

The language used should be clear to discharge the informational obligation to the right. Wording that has multiple reasonable interpretations, not all of which comply with the obligation, may result in a breach.[3]

Notice of Availability of Legal Aid

The police must inform the detainee of the availability of duty counsel and legal aid.[4] The police must provide details on accessing 24 hours duty counsel phone by giving a toll-free number to call.[5] The failure to provide a specific telephone number to Legal Aid is fatal to the fulfillment of the right.[6]

No Obligation to Ensure Comprehension

The police are under no positive duty to ensure that the detainee understands all what their rights under s. 10(b) entail.[7] Unless shown otherwise, it is presumed that a properly spoken notice to the detainee is understood.[8] Only if there are "special circumstances" such as "language difficulties or a known or obvious mental disability" does the officer need to do anything more.[9]

Where the detainee "positively indicates a failure to understand" their rights, determination of the information duty of the right to counsel may be complicated.[10] When such an indication exists "police cannot rely on a mechanical recitation of those rights". Instead, the officer "must make a reasonable effort to explain those rights to the detainee."[11]

Choice of Counsel

There is a right to an opportunity to contact counsel of choice.[12]

If the accused asks for a specific lawyer but that lawyer is not available, then they are expected to choose someone else.

Consequence of Invoking the Right

The police have an obligation to hold off from questioning while the accused is given reasonable opportunity to contact a lawyer.[13]

  1. ↑ R v Black, 1989 CanLII 75 (SCC), [1989] 2 SCR 138, per Wilson J
    R v O'Donnell, 1991 CanLII 2695 (NB CA), 66 CCC (3d) 56, per Angers JA
  2. ↑ R v Baig, 1987 CanLII 40 (SCC), 37 CCC (3d) 181, per curiam
  3. ↑ e.g. R v Chisholm, 2001 NSCA 32 (CanLII), 42 CR (5th) 121, per Saunders JA
  4. ↑ R v Brydges, 1990 CanLII 123 (SCC), [1990] 1 SCR 190, per Lamer J
    R v Luong, 2000 ABCA 31 (CanLII), 250 AR 264, per curiam
  5. ↑ R v Bartle, 1994 CanLII 64 (SCC), [1994] 3 SCR 173, per Lamer CJ
    R v Pozniak, 1994 CanLII 66 (SCC), [1994] 3 SCR 310, per Lamer CJ
    R v Cobham, 1994 CanLII 69 (SCC), [1994] 3 SCR 360, per Lamer CJ
    R v Matheson, 1994 CanLII 67 (SCC), [1994] 3 SCR 328, per Lamer CJ
  6. ↑ R v Deabreu, 1994 CanLII 1186 (ON CA), per curiam
  7. ↑ R v Culotta, 2018 ONCA 665 (CanLII), 364 CCC (3d) 191, per Nordheimer JA, at para 38 ("police do not have a duty to positively ensure that a detainee understands what the rights under s. 10(b) entail. Officers are only required to communicate those rights to the detainee.") upheld at 2018 SCC 57 (CanLII), per Moldaver J
  8. ↑ R v Anderson, 1984 CanLII 2197 (ON CA), 10 CCC (3d) 417, per Tarnopolsky JA
    R v Reyat, 1993 CanLII 2312 (BC CA), 80 CCC (3d) 210, per McEachern CJ
  9. ↑ Culotta, ibid., at para 38
    Bartle, supra, at p. 193 (“absent special circumstances indicating that a detainee may not understand the s. 10(b) caution, such as language difficulties or a known or obvious mental disability, police are not required to assure themselves that a detainee fully understands the s. 10(b) caution”)
    See also R v Baig, 1987 CanLII 40 (SCC), [1987] 2 SCR 537, per curiam, at p. 540
    R v Evans, 1991 CanLII 98 (SCC), [1991] 1 SCR 869, per McLachlin J, at p. 891
    R v Feeney, 1997 CanLII 342 (SCC), [1997] 2 SCR 13, per L’Heureux-Dubé (dissenting), at paras 108 to 109
    R v Willier, 2010 SCC 37 (CanLII), [2010] 2 SCR 429, per McLachlin CJ and Charron J, at para 31
  10. ↑ Culotta, supra, at para 29 ("Satisfaction of the informational duty may be complicated in certain cases where the detainee positively indicates a failure to understand his or her rights to counsel")
  11. ↑ Culotta, supra, at para 29 Evans, supra, at p. 892
  12. ↑ R v Kowalchuk, 1999 CanLII 12437 (SK QB), 67 CRR (2d) 307, per Matheson J
    R v Keagan, 2003 NLSCTD 48 (CanLII), 106 CRR (2d) 54, per Fowler J
    R v Top, 1989 ABCA 98 (CanLII), 48 CCC (3d) 493, per Cote JA
    R v Nelson, 1991 CanLII 1446 (BC CA), per MacFarlane JA
    R v Tremblay, 1987 CanLII 28 (SCC), [1987] 2 SCR 435, per Lamer J
    R v Playford, 1987 CanLII 125 (ON CA), 40 CCC (3d) 142, per Goodman JA
  13. ↑ R v Cutknife, 2000 ABQB 641 (CanLII), 272 AR 172, per Marceau J
    R v Russell, 2000 NBCA 53 (CanLII), 150 CCC (3d) 243, per Deschênes JA

Secondary Caution

See also: Right Against Self-Crimination#Secondary Caution

When Detainee Changes Their Mind (Prosper Warning)

If a detainee initially expresses a desire to access counsel and then changes their mind after being "diligent but unsuccessful", the police have an obligation to to "inform the detainee of his or her right to a reasonable opportunity to contact counsel."[1] The police also have an obligation to hold off on questioning until after they have informed the detainee of this additional right.[2]

The purpose behind the warning is to ensure the detainee is properly informed that they are giving up they waive their right to counsel.[3]

  1. ↑ R v Willier, 2010 SCC 37 (CanLII), [2010] 2 SCR 429, per McLachlin CJ and Charron J ("[W]hen a detainee, diligent but unsuccessful in contacting counsel, changes his or her mind and decides not to pursue contact with a lawyer, s. 10(b) mandates that the police explicitly inform the detainee of his or her right to a reasonable opportunity to contact counsel and of the police obligation to hold off in their questioning until then.")
    R v Fountain, 2017 ONCA 596 (CanLII), 136 OR (3d) 625, at para 27 ("It is needed only if a detainee has asserted the right [to counsel] and then apparently change[s] his mind after reasonable efforts to contact counsel have been frustrated:" [quotation marks removed])
  2. ↑ Prosper, ibid.
  3. ↑ Fountain, supra, at para 27 ("The “Prosper warning” is meant to equip detainees with the information required to know what they are giving up if they waive their right to counsel.")

Other Consequences

Police are not obliged to notify the detainee that the access to counsel will occur at the police station.[1]

The instructions asking whether they want to speak to counsel "now" does not oblige on-site access to counsel.[2]

It does not necessarily result in a breach if the officer fails to re-advise the detainee of the right to counsel once they are at the station. However, it is generally preferable that officers do so.[3]

  1. ↑ R v Devries, 2009 ONCA 477 (CanLII), 244 CCC (3d) 354, per Doherty JA
  2. ↑ Devries, ibid.
  3. ↑ Devries, ibid.

Procedure

Typically, the officer will read from a script such as this:

I am arresting you for [name of offence(s)].

You have the right to retain and instruct counsel without delay. You also have the right to free and immediate legal advice from duty counsel by making free telephone calls to [toll-free phone number(s)] during business hours and [toll-free phone number(s)] during non-business hours.

Do you understand?

Do you wish to call a lawyer?

You also have the right to apply for legal assistance through the provincial legal aid program.

Do you understand?

– N/A

See Also

Retrieved from "https://criminalnotebook.ca/index.php?title=Informational_Component_to_Right_to_Counsel&oldid=95877"