Special Issues with Right to Counsel

From Criminal Law Notebook
This page was last substantively updated or reviewed February 2019. (Rev. # 95960)

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), [2008] 2 SCR 235, per Fish J, at para 21
  2. ↑ R v Strachan, 1988 CanLII 25 (SCC), [1988] 2 SCR 980, at p. 1005
  3. ↑ R v Plaha, 2004 CanLII 21043 (ON CA), 188 CCC (3d) 289, per Doherty JA, at para 45
  4. ↑ R v Goldhart, 1996 CanLII 214 (SCC), [1996] 2 SCR 463, per Sopinka J, at para 40
    Plaha, supra, 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, per McLachlin J, at para 21
  2. ↑ See R v Brissonnet, 2006 ONCJ 31 (CanLII), 205 CCC (3d) 139, per Harris J
  3. ↑ R v Prodan, 2007 ONCJ 551 (CanLII), OJ No 4567, per Armstrong J - officer heard accent, went very fast through caution
  4. ↑ R v Liagon, 2012 ABPC 56 (CanLII), 541 AR 16, per Shriar J

"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), 301 CCC (3d) 182, per Watt JA
    R v ET, 1993 CanLII 51 (SCC), 86 CCC (3d) 289, per Sopinka J
    R v Karafa, 2014 ONSC 2901 (CanLII), 311 CRR (2d) 30, per Trotter J
  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]

Right to counsel

25 (1) A young person has the right to retain and instruct counsel without delay, and to exercise that right personally, at any stage of proceedings against the young person and before and during any consideration of whether, instead of starting or continuing judicial proceedings against the young person under this Act, to use an extrajudicial sanction to deal with the young person.

Arresting officer to advise young person of right to counsel

(2) Every young person who is arrested or detained shall, on being arrested or detained, be advised without delay by the arresting officer or the officer in charge, as the case may be, of the right to retain and instruct counsel, and be given an opportunity to obtain counsel.

Justice, youth justice court or review board to advise young person of right to counsel

(3) When a young person is not represented by counsel

(a) at a hearing at which it will be determined whether to release the young person or detain the young person in custody prior to sentencing,
(b) at a hearing held under section 71 (hearing — adult sentences),
(c) at trial,
(d) at any proceedings held under subsection 98(3) (continuation of custody), 103(1) (review by youth justice court), 104(1) (continuation of custody), 105(1) (conditional supervision) or 109(1) (review of decision),
(e) at a review of a youth sentence held before a youth justice court under this Act, or
(f) at a review of the level of custody under section 87,

the justice or youth justice court before which the hearing, trial or review is held, or the review board before which the review is held, shall advise the young person of the right to retain and instruct counsel and shall give the young person a reasonable opportunity to obtain counsel.

Trial, hearing or review before youth justice court or review board

(4) When a young person at trial or at a hearing or review referred to in subsection (3) wishes to obtain counsel but is unable to do so, the youth justice court before which the hearing, trial or review is held or the review board before which the review is held

(a) shall, if there is a legal aid program or an assistance program available in the province where the hearing, trial or review is held, refer the young person to that program for the appointment of counsel; or
(b) if no legal aid program or assistance program is available or the young person is unable to obtain counsel through the program, may, and on the request of the young person shall, direct that the young person be represented by counsel.
Appointment of counsel

(5) When a direction is made under paragraph (4)(b) in respect of a young person, the Attorney General shall appoint counsel, or cause counsel to be appointed, to represent the young person.

Release hearing before justice

(6) When a young person, at a hearing referred to in paragraph (3)(a) that is held before a justice who is not a youth justice court judge, wishes to obtain counsel but is unable to do so, the justice shall

(a) if there is a legal aid program or an assistance program available in the province where the hearing is held,
(i) refer the young person to that program for the appointment of counsel, or
(ii) refer the matter to a youth justice court to be dealt with in accordance with paragraph (4)(a) or (b); or
(b) if no legal aid program or assistance program is available or the young person is unable to obtain counsel through the program, refer the matter without delay to a youth justice court to be dealt with in accordance with paragraph (4)(b).
Young person may be assisted by adult

(7) When a young person is not represented by counsel at trial or at a hearing or review referred to in subsection (3), the justice before whom or the youth justice court or review board before which the proceedings are held may, on the request of the young person, allow the young person to be assisted by an adult whom the justice, court or review board considers to be suitable.

Counsel independent of parents

(8) If it appears to a youth justice court judge or a justice that the interests of a young person and the interests of a parent are in conflict or that it would be in the best interests of the young person to be represented by his or her own counsel, the judge or justice shall ensure that the young person is represented by counsel independent of the parent.

Statement of right to counsel

(9) A statement that a young person has the right to be represented by counsel shall be included in

(a) any appearance notice or summons issued to the young person;
(b) any warrant to arrest the young person;
(c) any promise to appear given by the young person;
(d) any undertaking or recognizance entered into before an officer in charge by the young person;
(e) any notice given to the young person in relation to any proceedings held under subsection 98(3) (continuation of custody), 103(1) (review by youth justice court), 104(1) (continuation of custody), 105(1) (conditional supervision) or 109(1) (review of decision); or
(f) any notice of a review of a youth sentence given to the young person.
Recovery of costs of counsel

(10) Nothing in this Act prevents the lieutenant governor in council of a province or his or her delegate from establishing a program to authorize the recovery of the costs of a young person’s counsel from the young person or the parents of the young person. The costs may be recovered only after the proceedings are completed and the time allowed for the taking of an appeal has expired or, if an appeal is taken, all proceedings in respect of the appeal have been completed.

Exception for persons over the age of twenty

(11) Subsections (4) to (9) do not apply to a person who is alleged to have committed an offence while a young person, if the person has attained the age of twenty years at the time of his or her first appearance before a youth justice court in respect of the offence; however, this does not restrict any rights that a person has under the law applicable to adults.

– YCJA (CanLII), (DOJ)

Note up: 25(1), (2), (3), (4), (5), (6), (7), (8), (9), (10), and (11)

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 LTH, 2008 SCC 49 (CanLII), [2008] 2 SCR 739, per Fish J
  3. ↑ R v DB, 2008 SCC 25 (CanLII), [2008] 2 SCR 3, per Abella J
  4. ↑ R v JTJ, 1990 CanLII 85 (SCC), [1990] 2 SCR 755, per Corey J and Sopinka J, at p. 766

Detained 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.

– VC

When Obligation Exists

The police are under an obligation to notify the detainee of their consular right at the point where they become aware or ought to have been aware the at the detainee is a foregin national.[1]

The policy manual for CBSA agents requires that upon arrest the agent provide the detainee with in a right to access their consulate and to notify Citizen and Immigration Canada.[2]

Consequence of Breach of Duty

A breach of the Vienna Convention does not necessarily amount to a breach of the Charter of Rights and Freedoms.[3]

It has generally been found that there must be proven "serious prejudice" for there to be a remedy for the breach of the Vienna Convention.[4]

  1. ↑ R v Partak, 2001 CanLII 28411 (ON SC), 160 CCC (3d) 553, per Epstein J, at para 28(" In my view, a foreign national’s entitlement to be advised of his or her consular rights arises at the time that the authorities know or reasonably ought to be aware that the detainee is a foreign national.")
  2. ↑ Brown v Deputy Head (Canada Border Services Agency), 2019 FPSLREB 2 (CanLII) per Jaworski (board member), at para 33
  3. ↑ R v Walters, 2013 ABCA 204 (CanLII), per Slatter JA, at para 11 ("The Vienna Convention is not, however, a part of the Constitution. Not every breach of duty engages the Charter. For example, there are many procedural protections in the Criminal Code, the breach of which may result in a new trial or another remedy. But not every breach of the Criminal Code is a breach of the Charter, and there is no basis on which international treaties should be given higher status. International obligations may inform the content of the Charter, but they are not independent sources of Charter rights:...")
  4. ↑ Walters, supra, at para 12 ("There is binding authority that “serious prejudice” must be shown in order to warrant a remedy for a breach of the Vienna Convention: .... The trial judge found that the appellant had not demonstrated any prejudice to his position: ... . This conclusion demonstrates no reviewable error.")
    R v Van Bergen, 2000 ABCA 216 (CanLII), 261 AR 387, per Wittmann JA, at paras 16 to 17, leave refused [2000] 2 SCR xiv
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