Right to Additional Opportunities to Consult with Counsel: Difference between revisions

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[[fr:Droit_à_des_possibilités_supplémentaires_de_consulter_un_avocat]]
{{Currency2|January|2018}}
{{HeaderCounsel}}
{{HeaderCounsel}}
{{LevelOne}}
{{LevelOne}}
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==General Principles==
==General Principles==
{{seealso|Implementation Component to Right to Counsel}}
{{seealso|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.<ref>
Generally, once a detainee has finished exercising their right to counsel they have no further ability to access counsel again.<ref>
R v Sinclair, [http://canlii.ca/t/2cvjs 2010 SCC 35] (CanLII), [2010] 2 SCR 310{{perSCC|McLachlin CJ and Charron J}}<br>
{{CanLIIRP|Sinclair|2cvjs|2010 SCC 35 (CanLII)|[2010] 2 SCR 310}}{{perSCC-H|McLachlin CJ and Charron J}}<br>
</ref>
</ref>
The right to counsel is "essentially a one time matter", unless it falls into one of the exceptions.<ref>
The right to counsel is "essentially a one time matter", unless it falls into one of the exceptions.<ref>
Sinclair{{ibid}} at para 64</ref>
{{ibid1|Sinclair}}{{atL|2cvjs|64}}</ref>


Absent one of the exceptions, further access to counsel beyond the first consultation is entirely discretionary.<ref>
Absent one of the exceptions, further access to counsel beyond the first consultation is entirely discretionary.<ref>
R v Briscoe [http://canlii.ca/t/fqc7j 2012 ABQB 111] (CanLII){{perABQB|Yamauchi J}} at para 113<br>
{{CanLIIRP|Briscoe|fqc7j|2012 ABQB 111 (CanLII)|255 CRR (2d) 37}}{{perABQB|Yamauchi J}}{{atL|fqc7j|113}}<br>
</ref> This applies even where the police may have promised further access.<ref>Briscoe{{ibid}} at para 114, 119</ref>
</ref>  
This applies even where the police may have promised further access.<ref>
{{ibid1|Briscoe}}{{atsL|fqc7j|114|, 119}}</ref>
 
The rule against additional access applies to a single period of detention and cannot extend to subsequent encounters by police concerning the same investigation.<ref>
{{CanLIIRP|TGH|g7rs5|2014 ONCA 460 (CanLII)|314 CCC (3d) 473}}{{perONCA-H|Doherty JA}} (3:0)
</ref>


{{Reflist|2}}
{{Reflist|2}}
===Exceptions===
===Exceptions===
Several exceptions exist:<ref>
Several exceptions exist:<ref>
R v Sinclair, [http://canlii.ca/t/2cvjs 2010 SCC 35] (CanLII), [2010] 2 SCR 310{{perSCC|McLachlin CJ and Charron J}}, at para 2<br>
{{CanLIIRP|Sinclair|2cvjs|2010 SCC 35 (CanLII)|[2010] 2 SCR 310}}{{perSCC-H|McLachlin CJ and Charron J}}{{atL|2cvjs|2}}<br>
R v MacLean, [http://canlii.ca/t/fw13j 2013 ABQB 60] (CanLII){{perABQB| Ouellette J}} at para 24<Br>
{{CanLIIRP|MacLean|fw13j|2013 ABQB 60 (CanLII)|551 AR 274}}{{perABQB| Ouellette J}}{{atL|fw13j|24}}<Br>
R v M(AR), [http://canlii.ca/t/gh18d 2011 ABCA 98] (CanLII){{TheCourt}} at para 38 leave denied<br>
{{CanLIIRP|M(AR)|gh18d|2011 ABCA 98 (CanLII)|283 CCC (3d) 89}}{{TheCourtABCA}}{{atL|gh18d|38}} leave denied<br>
</ref>
</ref>
* Where during the investigation "new or non-routine procedures involving the detainee" are being applied, the accused should be permitted counsel.<ref>
* Where during the investigation "new or non-routine procedures involving the detainee" are being applied, the accused should be permitted counsel.<ref>
Sinclair{{supra}} at paras 50-52<br>
{{supra1|Sinclair}}{{atsL|2cvjs|50| to 52}}<br>
R v Ross, [http://canlii.ca/t/1ft8b 1989 CanLII 134] (SCC), [1989] 1 SCR 3{{perSCC|Lamer J}}
{{CanLIIRP|Ross|1ft8b|1989 CanLII 134 (SCC)|[1989] 1 SCR 3}}{{perSCC|Lamer J}}
</ref>
</ref>
* where the jeopardy increases due to new evidence rendering the offence more serious or new, more serious charges arise.<ref>
* where the jeopardy increases due to new evidence rendering the offence more serious or new, more serious charges arise.<ref>
Sinclair{{supra}} at paras 50-52<br>
{{supra1|Sinclair}}{{atsL|2cvjs|50| to 52}}<br>
See R v Evans, [http://canlii.ca/t/1fsml 1991 CanLII 98] (SCC), [1991] 1 SCR 869{{perSCC|McLachlin J}}<Br>
See {{CanLIIRP|Evans|1fsml|1991 CanLII 98 (SCC)|[1991] 1 SCR 869}}{{perSCC-H|McLachlin J}}<Br>
R v Black, [http://canlii.ca/t/1ft50 1989 CanLII 75] (SCC), [1989] 2 SCR 138{{perSCC|Wilson J}}  
{{CanLIIRP|Black|1ft50|1989 CanLII 75 (SCC)|[1989] 2 SCR 138}}{{perSCC|Wilson J}}  
</ref>
</ref>
* if it is learned that the previous waiver of rights was not done properly.<ref>
* if it is learned that the previous waiver of rights was not done properly.<ref>
See R v Burlingham, [http://canlii.ca/t/1frk6 1995 CanLII 88] (SCC), [1995] 2 SCR 206{{perSCC|Iacobucci J}}
See {{CanLIIRP|Burlingham|1frk6|1995 CanLII 88 (SCC)|[1995] 2 SCR 206}}{{perSCC|Iacobucci J}}
</ref>
</ref>
* the previous caution was insufficient or defective
* the previous caution was insufficient or defective
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The categories of circumstances that require additional access to counsel is not a "closed" list.<ref>
The categories of circumstances that require additional access to counsel is not a "closed" list.<ref>
Sinclair{{supra}}
{{supra1|Sinclair}}
</ref>
</ref>


'''Change in Circumstances Exception'''<br>
; 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".<ref>
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."<ref>
Sinclair{{supra}} at para 54<br>
{{supra1|Sinclair}}{{atL|2cvjs|54}}<br>
</ref>
</ref>


Line 50: Line 58:
==Procedure==
==Procedure==
Where new or non-routine procedures involving the detainee arise, the detainee should be permitted new access to counsel.<ref>
Where new or non-routine procedures involving the detainee arise, the detainee should be permitted new access to counsel.<ref>
''R v ARM'', [http://canlii.ca/t/gh18d 2011 ABCA 98] (CanLII){{TheCourt}}<Br>
{{CanLIIRP|ARM|gh18d|2011 ABCA 98 (CanLII)|283 CCC (3d) 89}}{{TheCourtABCA}}<Br>
</ref>
</ref>


The applicable procedures will not be those that are part of "predictable police questioning".<ref>
The applicable procedures will not be those that are part of "predictable police questioning."<ref>
R v Briscoe, [http://canlii.ca/t/gfv1v 2015 ABCA 2] (CanLII){{perABCA|Watson JA}} at para 48<Br>
{{CanLIIRP|Briscoe|gfv1v|2015 ABCA 2 (CanLII)|593 AR 102}}{{perABCA|Watson JA}}{{atL|gfv1v|48}}<Br>
</ref>
</ref>


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.<Ref>
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.<ref>
Biscoe{{ibid}} at para 48<br>
{{ibid1|Biscoe}}{{atL|gfv1v|48}}<br>
</ref>
</ref>


"Non-routine" procedures will include participation in a line-up or submitting to a polygraph.<ref>
"Non-routine" procedures will include participation in a line-up or submitting to a polygraph.<ref>
R v Sinclair, [http://canlii.ca/t/2cvjs 2010 SCC 35] (CanLII), [2010] 2 SCR 310{{perSCC|McLachlin CJ and Charron J}} at para 50<br>
{{CanLIIRP|Sinclair|2cvjs|2010 SCC 35 (CanLII)|[2010] 2 SCR 310}}{{perSCC-H|McLachlin CJ and Charron J}}{{atL|2cvjs|50}}<br>
</ref>
</ref>


A "re-enactment" is not considered a non-routine procedure. It is merely a "statement by conduct".<Ref>
A "re-enactment" is not considered a non-routine procedure. It is merely a "statement by conduct."<ref>
R v Ashmore, [http://canlii.ca/t/2fdf7 2011 BCCA 18] (CanLII){{perBCCA|Frankel JA}}<br>
{{CanLIIRP|Ashmore|2fdf7|2011 BCCA 18 (CanLII)|267 CCC (3d) 108}}{{perBCCA|Frankel JA}}<br>
</ref>
</ref>


Line 72: Line 80:


==Change of Jeopardy==
==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.<Ref>
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.<ref>
R v Black, [http://canlii.ca/t/1ft50 1989 CanLII 75] (SCC), [1989] 2 SCR 138{{perSCC|Wilson J}}<br>
{{CanLIIRP|Black|1ft50|1989 CanLII 75 (SCC)|[1989] 2 SCR 138}}{{perSCC|Wilson J}}<br>
R v Sinclair, [http://canlii.ca/t/2cvjs 2010 SCC 35] (CanLII), [2010] 2 SCR 310{{perSCC|McLachlin CJ and Charron J}}<br>
{{CanLIIRP|Sinclair|2cvjs|2010 SCC 35 (CanLII)|[2010] 2 SCR 310}}{{perSCC-H|McLachlin CJ and Charron J}}<br>
</ref>
</ref>


A change in circumstances "must be objectively observable in order to trigger additional implementational duties for the police".<ref>
A change in circumstances "must be objectively observable in order to trigger additional implementational duties for the police."<ref>
Sinclair{{ibid}}<br>
{{ibid1|Sinclair}}<br>
</ref>
</ref>
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.<ref>Sinclair{{ibid}}<br>
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.<ref>
{{ibid1|Sinclair}}<br>
</ref>
</ref>


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".<ref>
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."<ref>
Sinclair{{ibid}}<br>
{{ibid1|Sinclair}}<br>
</ref>
</ref>


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.<ref>
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.<ref>
R v Bhander, [http://canlii.ca/t/ftnc4 2012 BCCA 441] (CanLII){{perBCCA|Saunders JA}} at para 40 to 46</ref>
{{CanLIIRP|Bhander|ftnc4|2012 BCCA 441 (CanLII)|292 CCC (3d) 545}}{{perBCCA|Saunders JA}}{{atsL|ftnc4|40| to 46}}</ref>
 
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.<ref>
{{ibid1|Sinclair}}<br>
</ref>


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.<ref>Sinclair{{ibid}}<br>
A change in the identity of the victim does not change the jeopardy of the detainee.<ref>
{{CanLIIRx|Thomas|fx63f|2013 ABQB 223 (CanLII)}}{{perABQB|Jerke J}}
</ref>
</ref>


{{reflist|2}}
{{reflist|2}}

Latest revision as of 14:39, 14 July 2024

This page was last substantively updated or reviewed January 2018. (Rev. # 95510)

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 to counsel 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]

The rule against additional access applies to a single period of detention and cannot extend to subsequent encounters by police concerning the same investigation.[5]

  1. ↑ R v Sinclair, 2010 SCC 35 (CanLII), [2010] 2 SCR 310, per McLachlin CJ and Charron J
  2. ↑ Sinclair, ibid., at para 64
  3. ↑ R v Briscoe, 2012 ABQB 111 (CanLII), 255 CRR (2d) 37, per Yamauchi J, at para 113
  4. ↑ Briscoe, ibid., at paras 114, 119
  5. ↑ R v TGH, 2014 ONCA 460 (CanLII), 314 CCC (3d) 473, per Doherty JA (3:0)

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 CJ and Charron J, at para 2
    R v MacLean, 2013 ABQB 60 (CanLII), 551 AR 274, per Ouellette J, at para 24
    R v M(AR), 2011 ABCA 98 (CanLII), 283 CCC (3d) 89, per curiam, at para 38 leave denied
  2. ↑ Sinclair, supra, at paras 50 to 52
    R v Ross, 1989 CanLII 134 (SCC), [1989] 1 SCR 3, per Lamer J
  3. ↑ Sinclair, supra, at paras 50 to 52
    See R v Evans, 1991 CanLII 98 (SCC), [1991] 1 SCR 869, per McLachlin J
    R v Black, 1989 CanLII 75 (SCC), [1989] 2 SCR 138, per Wilson J
  4. ↑ See R v Burlingham, 1995 CanLII 88 (SCC), [1995] 2 SCR 206, per Iacobucci J
  5. ↑ Sinclair, supra
  6. ↑ Sinclair, supra, at para 54

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 line-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 ARM, 2011 ABCA 98 (CanLII), 283 CCC (3d) 89, per curiam
  2. ↑ R v Briscoe, 2015 ABCA 2 (CanLII), 593 AR 102, per Watson JA, at para 48
  3. ↑ Biscoe, ibid., at para 48
  4. ↑ R v Sinclair, 2010 SCC 35 (CanLII), [2010] 2 SCR 310, per McLachlin CJ and Charron J, at para 50
  5. ↑ R v Ashmore, 2011 BCCA 18 (CanLII), 267 CCC (3d) 108, per Frankel JA

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]

A change in the identity of the victim does not change the jeopardy of the detainee.[7]

  1. ↑ R v Black, 1989 CanLII 75 (SCC), [1989] 2 SCR 138, per Wilson J
    R v Sinclair, 2010 SCC 35 (CanLII), [2010] 2 SCR 310, per McLachlin CJ and Charron J
  2. ↑ Sinclair, ibid.
  3. ↑ Sinclair, ibid.
  4. ↑ Sinclair, ibid.
  5. ↑ R v Bhander, 2012 BCCA 441 (CanLII), 292 CCC (3d) 545, per Saunders JA, at paras 40 to 46
  6. ↑ Sinclair, ibid.
  7. ↑ R v Thomas, 2013 ABQB 223 (CanLII), per Jerke J
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