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| Patrick J Ducharme |
continued from Part 1.
In Grant the majority of the court noted that while there is no absolute exclusionary rule against statements obtained following a Charter violation, the courts have tended to exclude such statements. But the court in Grant was establishing new rules related to the exclusion of evidence. The new framework the court said would “support a presumptive general, although not automatic, exclusion of statements obtained in breach of the Charter”
In Sinclair, the accused was arrested for second degree murder. After being advised of his rights to counsel, he spoke to counsel of his choice twice, after which the police interviewed him for approximately five hours. During this lengthy interrogation he stated many times that he did not wish to say anything to anyone and wanted to speak to his lawyer again. During the course of the interrogation the police officer who was questioning the accused acknowledged that the accused had the right to choose whether to talk to him or not talk to him, but despite this he did not stop the interview or permit the accused to consult with his lawyer again.
The officer did tell the accused that he did not have the right to have his lawyer present during the interview. Again, predictably, the accused eventually provided incriminating statements. After those statements the accused accompanied the police to the scene of the murder and participated in a re-enactment of the murder. In dismissing the appeal of the accused the Supreme Court of Canada concluded as follows:
1. The accused did not have to be given another opportunity to consult with his counsel because his jeopardy remained the same throughout the interrogation;
2. The police did not at any time request his participation in a line-up;
3. The accused did not have any doubt about his choices that allowed him legally to continue to insist upon his constitutional right to remain silent; and,
4. The accused just decided to go against the previous advice of his lawyer, which he was entitled to do.
Consequently, according to the majority, the purpose of section 10 (b) of the Charter is simply to provide a detained person with an opportunity to obtain legal advice relevant to his or her legal circumstances. Anything beyond that is purely within the choice of the detained person. Detained persons are entitled, in effect, to be unwise or even stupid about their rights, and, most importantly, they are entitled to be influenced by persuasive police officers, even if their persuasion effectively undermines the earlier advice of counsel. Unless there is some intervening event that can be said to change the jeopardy of the accused, the police have no obligation to provide the detained person with further access to counsel.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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