 |
| Patrick J Ducharme |
Where a person is detained for a search, as in the case of a body search incident to arrest, the detainee has the right to be informed of the right to counsel under s. 10(b) of the Charter. But, the police are not obligated to suspend the search incident to arrest until the detainee has the opportunity to retain counsel. They are required to suspend the search only when the lawfulness of the search is dependent on the detainee’s consent or where the statute gives a person a right to seek review of the decision to search.1
Recent Supreme Court of Canada cases have tightened the available avenues of challenge to evidence based on a failure of the authorities to provide rights to counsel. In R. v. Sinclair2 the accused was arrested for murder. In due course he was advised of his rights to counsel, and, in fact, spoke by telephone with his counsel twice. After speaking with his counsel, however, he was interviewed by a police officer for several hours.
During that lengthy interrogation the accused stated on a number of occasions that he had, “nothing to say” and, “I want to speak to my lawyer again”. The police officer, while confirming that he did have a right to choose whether to talk to him, still refused to allow the accused to consult with his lawyer again. Eventually, the resistance of the accused was worn down and he provided incriminating statements. In addition, he was later placed into a cell with an undercover officer and made further incriminating statements.
The court found that the rights under subsection 10(b) of the Charter do not convey the right to the presence of a defence counsel throughout an interrogation. The court found that the protection does not contemplate the continued availability of advice from counsel, with one narrow exception. That is, in the context of a custodial interrogation, the police must give the accused an additional opportunity to receive advice from counsel where developments in the course of the investigation make it necessary to serve the purpose underlying the protections offered by rights to counsel.
But police tactics allow interrogating officers, short of a dramatic change in circumstances that might require additional consultation, to continue their efforts to obtain a statement. The court did point out that there is nothing to prevent counsel from being present at an interrogation as long as, “all sides consent”. There is, however, no requirement that the police consent to the presence of counsel, and, in fact, they rarely do.
Similarly, in Singh the Supreme Court of Canada found, “no error in law in the approach adopted by the courts below.” The accused was charged with second-degree murder in the shooting death of an innocent bystander who was killed by a stray bullet. The accused was provided with rights to counsel, consulted with counsel and was then subjected to subsequent interviews with the police. During the subsequent interviews the accused stated on numerous occasions that he did not want to talk about the incident and continued to insist that he wished to call his lawyer again.
Despite the interviewing officer’s attempts to get the accused to provide an inculpatory statement, the accused did not actually confess to the crime. He did, however, make a number of admissions that, when combined with other evidence, were found to be admissible on the issue of identification. The approach of the courts below was adopted by the Supreme Court of Canada. The court found the two subsequent interviews did not result in the police systematically breaking down the operating mind of the accused or undermining his right to silence.
In contrast consider the case of R. v. Suberu. The Supreme Court of Canada found in Suberu that the duty placed upon the police under 10(b) is to inform an individual of his or her rights to counsel at the “outset of an investigative detention”. From the moment an individual is detained, the police have an obligation to inform the person of his rights to counsel, “without delay” meaning, “immediately”.
The immediacy of this obligation upon the police is subject only to concerns for officer or public safety, or to (unspecified) reasonable limitations prescribed by law and justified by section 1 of the Charter. The court also stated, however, that not every interaction with the police will amount to a detention for the purposes of the Charter, even if a person is under investigation for criminal activity and is asked questions, or, is physically delayed by contact with the police. Likewise, not every police encounter, even with a person who is a suspect of the police, will trigger the right to counsel. The Supreme Court of Canada’s strongest statement on the immediacy of this obligation is found in R. v. Taylor.
In this regard one would do well to remember the approach adopted by the Supreme Court of Canada in Grant6, namely, that detention under sections 9 and 10 of the Charter refers to a suspension of an individual’s liberty, “by a significant physical or psychological restraint”. Psychological detention is established either when an individual has a legal obligation to comply with a restrictive request or demand by the police, or, when a person would reasonably conclude that he has no choice but to comply with a police demand.
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.
Subscribe to Patrick Ducharme's Youtube Channel