Criminal Law Notebook

Informational Component to Right to Counsel

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General Principles

See also: Right to Counsel

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]

The informational duty requires the officer to inform the detainee of his right to retain and instruct counsel without delay.

Legal Aid
The police must also inform the accused of the availability of duty counsel and legal aid.[2] The police must provide details on accessing 24 hours duty counsel phone by giving a toll-free number to call.[3] The failure to provide a specific telephone number to Legal Aid is fatal to the fulfillment of the right.[4]

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.[5]

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.[6] 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.[7]

However, where the detainee "positively indicates a failure to understand" their rights, determination of the information duty of the right to counsel may be complicated.[8] 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".[9] Choice of Counsel
There is a right to an opportunity to contact counsel of choice.[10]

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.[11]

  1. ↑ R v Black, 1989 CanLII 75 (SCC), [1989] 2 SCR 138, per Wilson J
    R v O'Donnell, 1991 CanLII 2695 (NB C.A.), per Angers JA
  2. ↑ R v Brydges, [1990] 1 SCR 190 1990 CanLII 123 (SCC), per Lamer J
    R v Luong, 2000 ABCA 31 (CanLII), per curiam
  3. ↑ R v Bartle, [1994] 3 SCR 173, 1994 CanLII 64 (SCC), per Lamer CJ
    R v Pozniak, [1994] 3 SCR 310, 1994 CanLII 66 (SCC), per Lamer CJ
    R v Cobham, [1994] 3 SCR 360, 1994 CanLII 69 (SCC), per Lamer CJ
    R v Matheson, [1994] 3 SCR 328, 1994 CanLII 67 (SCC), per Lamer CJ
  4. ↑ R v Deabreu, 1994 CanLII 1186 (ON C.A.), per curiam
  5. ↑ R v Baig, 1987 CanLII 40 (SCC), [1987] 2 SCR 537, per curiam
  6. ↑ R v Culotta, 2018 ONCA 665 (CanLII), 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
  7. ↑ 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] 1 SCR 869, 1991 CanLII 98 (SCC), per McLachlin J at p. 891
    R v Feeney, 1997 CanLII 342 (SCC), [1997] 2 SCR 13, at paras. 108-09, per L’Heureux-Dubé (dissenting)
    R v Willier, 2010 SCC 37 (CanLII), per McLachlin CJ and Charron J at para. 31
  8. ↑ 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")
  9. ↑ Culotta, supra, at para 29 Evans, supra, at p. 892
  10. ↑ R v Kowalchuk, 1999 CanLII 12437 (SK QB), per Matheson J
    R v Keagan, 2003 NLSCTD 48 (CanLII), per Fowler J
    R v Top, 1989 ABCA 98, per Cote JA
    R v Nelson, 1991 CanLII 1446 (BC CA), per MacFarlane JA
    R v Tremblay, [1987] 2 SCR 435 1987 CanLII 28, per Lamer J
    R v Playford, 1987 CanLII 125 (ON CA), per Goodman JA
  11. ↑ R v Cutknife, 2000 ABQB 641 (CanLII), per Marceau J
    R v Russell, 2000 NBCA 53 (CanLII), per Deschênes JA

Secondary Caution

See also: Right Against Self-Crimination#Secondary Caution

When Detainee Changes Their Mind (Prosper Warning)

If a detainee changes their mind after initially expressing a desire to access counsel and then changes their mind about counsel 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]

  1. ↑ R v Willier, 2010 SCC 37 (CanLII), 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.")
  2. ↑ Prosper, ibid.

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), 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?

See Also

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