“I WANT MY LAWYER”: RIGHT TO COUNSEL DURING A CUSTODIAL INTERVIEW
These materials were prepared by Megan Street, Crown Counsel, Vancouver, BC, for the CBA National Criminal
Justice Conference, Seven, Eight, Nine: Silence, Searches and Detention: April 20, 2012. Any opinions expressed
within are those of the author, not the Ministry of Justice. The author thanks Mary Ainslie for her guidance in the
writing of this paper and Joyce DeWitt-Van Oosten for her “go to” support sheet on section 10(b) jurisprudence.
© Megan A. Street
INTRODUCTION
In the 1929 decision Edwards v. Canada (Attorney General), prescient Lord Sankey
characterized our constitution as a “living tree.”1 This oft-quoted metaphor has become
most apposite in describing judicial interpretation of the Canadian Charter of Rights and
Freedoms. The focus of this paper is on the right to counsel branch of the tree after its
recent pruning by the Supreme Court of Canada in R. v. Sinclair,2 R. v. McCrimmon3
and R. v. Willier.4
In all three cases, heard together by the Supreme Court on May 12, 2009, the court was
asked to ascribe additional implementational duties to section 10(b) of the Charter. The
Appellants, Sinclair and McCrimmon, argued that section 10(b) ought to afford
detainees the right to have counsel present during custodial interviews and alternatively,
an ongoing right to re-consult counsel during interviews on request. Taking a different
approach, Willier defended an interpretation of the right to counsel that would require
police to (i) provide a Prosper-esque warning to detainees who are unsuccessful in
contacting their counsel of choice and voluntarily elect to contact another; and, (ii)
evaluate the quality of legal advice detainees receive from the counsel they contact.
This paper summarizes the facts and reasoning in the trilogy, assesses the trilogy’s
effect on extant section 10(b) jurisprudence, and identifies practice points to consider on
statement voir dires involving right to counsel during a custodial interview.
THE FUNDAMENTAL TENETS OF SECTION 10(B) REMAIN UNCHANGED
Since the inception of the Charter, much Supreme Court jurisprudence has been
devoted to defining the fundamental purposes and principles of the right to counsel. The
Supreme Court relied heavily on this body of jurisprudence in responding to the
Appellants’ respective arguments in Sinclair, McCrimmon and Willier. To appreciate the
legal climate in which the trilogy arose, it is useful to briefly review the settled law on
section 10(b).
The purpose of the right to counsel is twofold. It allows a detainee to become informed
of his or her legal rights and obligations, and to obtain advice as to the how to
implement his or her rights. It is intended to assure that a detainee’s decision whether
The predominant
to cooperate with a police investigation is “free and informed”.5
function of legal counsel on first contact with a detainee is to confirm the detainee’s right
to remain silent and to provide him or her with advice on how to exercise that right.6
1
[1930] A.C. 124, [1929] J.C.J. No. 2 at para. 44 (sub nom. Reference re: British North America Act, 1867 s. 24) (P.C.) [cited to QL]. 2
2010 SCC 35, 2010 CarswellBC 2664 [Sinclair cited to WLeC]. 3
2010 SCC 36, 2010 CarswellBC 2665 [McCrimmon cited to WLeC]. 4
2010 SCC 37, 2010 CarswellAlta 1974 [Willier cited to WLeC]. 5
R. v. Manninen, [1987] 1 S.C.R. 1233, 1987 CarswellOnt 99 at para. 23 [Manninen cited to WLeC], R. v. Poon, 2006 BCSC 869, 2006 CarswellBC 1822 at para. 7 [Poon cited to WLeC]. 6
Manninen, ibid. 2 Upon arrest or detention,7 police are obligated to undertake specific informational and
implementational duties intended to facilitate the fulfillment of these twin purposes.
(i)
Informational Duties
Police must inform a detainee of his or her right to retain and instruct counsel without
delay. This must be done immediately as opposed to “at the earliest possible
convenience”8 or “without reasonable delay.”9 Immediacy, however, is subject to officer
and public safety concerns and such other limitations as prescribed by law and justified
under section 1 of the Charter.10 In most cases, the police will be able to execute this
informational duty by reciting the right to counsel from their standard issue Charter card
and asking the detainee if he or she understands. Where, however, there is a positive
indication that the detainee does not understand his or her right to counsel, or police are
aware of language difficulties, intoxication, or a mental disability, they must take
appropriate steps to enable comprehension.11 Moreover, if the police cause a detainee
to become confused about his or her right to counsel, they must take remedial steps.12
When informing a detainee of his or her right to retain and instruct counsel, police must
also advise the detainee of the availability of whatever duty counsel and Legal Aid
systems exist in the jurisdiction in which he or she is detained.13 This includes providing
the detainee with information about how to access these systems, such as the
applicable toll-free number or a list of telephone numbers for all duty counsel.14
Police will be unable to execute their informational duty if the detainee does not have an
“operating mind.” The detainee must have the cognitive capacity to understand the
right, communicate with counsel, and understand the function of legal counsel, including
his or her right to dispense with counsel.15 It is not a requirement, however, that he or
she be able to engage in analytical reasoning.16
Although it is both preferable and simple for the police to advise a detainee that he or
she is entitled to exercise his or her right to retain and instruct counsel in private, it is
not constitutionally mandated.17 Where, however, a detainee is informed of his or her
7
See R. v. Whitfield, [1970] S.C.R. 46, R. v. Therens, [1985] 1 S.C.R. 613, and R. v. Suberu, 2009 SCC 33, 2009 CarswellOnt 4106 [Suberu cited to WLeC] for definitions of arrest and detention. 8
R. v. Debot, [1989] 2 S.C.R. 1140, 1989 CarswellOnt 111, at para. 49 [Debot cited to WLeC], Suberu, ibid. at para. 39. 9
Debot, ibid.; Suberu, ibid. 10
Suberu, ibid. at para. 42; Debot, ibid. at paras. 49, 52. 11
R. v. Evans, [1991] 1 S.C.R. 869, 1991 CarswellBC 417 at para. 39 [Evans cited to WLeC], R. v. Bartle, [1994] 3 S.C.R. 173, 1994 CarswellOnt 100 at para. 20 [Bartle cited to WLeC]. See also R. v. Cotter (1991), 62 C.C.C. (3d) 423 (BCCA), R. v. Clarkson (1986), 25 C.C.C. (3d) 207 (SCC). 12
R. v. Burlingham, [1995] 2 S.C.R. 206, 1995 CarswellBC 71 at para. 18 [Burlingham cited to WLeC]. 13
R. v. Brydges, [1990] 1 S.C.R. 190, 1990 CarswellAlta 3 at paras. 24‐5 [Brydges cited to WLeC]. 14
Bartle, supra note 11 at para. 34. 15
R. v. Whittle, [1994] 2 S.C.R. 914, 1994 CarswellOnt 91 at paras. 33, 49, 52 [Whittle cited to WLeC]. 16
Ibid. at paras. 33, 52. 17
R. v. Jackson (1993), 86 C.C.C. (3d) 233, 1993 CarswellOnt 130 at para. 20 [Jackson cited to WLeC]. 3 right to counsel in such circumstances that would lead him or her to reasonably believe
that he or she does not have or will not be granted the right to retain and instruct
counsel in private and (i) those circumstances are known or ought to be known to the
officer providing the information, and (ii) the officer knows or ought to know the effect
the circumstances may reasonably have on the detainee, the officer is under a duty to
explain to the detainee that he or she has a right to privacy and that it will be given to
him or her.18
When a detainee who has previously asserted a desire to speak with a lawyer indicates
that he or she has changed his or her mind and no longer wants to speak with counsel,
police must inform the detainee of his or her right to a reasonable opportunity to contact
a lawyer and the correlative duty on the police to hold off questioning the detainee until
he or she has had that opportunity.19 A detainee’s waiver of right to counsel must be
voluntary and unequivocal.20
Police must also re-advise a detainee of his or her right to counsel when the
investigation evolves in such a manner that the detainee finds him or herself facing
more serious jeopardy.21 The police, however, are not required to reiterate the
detainee’s right to counsel “every time that the investigation touches on a different
offence”.22 Only “when there is a fundamental and discrete change in the purpose of
the investigation, one involving a different and unrelated offence or a significantly more
serious offence than that contemplated at the time of the warning”, does the obligation
arise.23
(ii) Implementational Duties
Once a detainee asserts his or her right to counsel, several correlative implementational
duties are triggered:
(1) If a detainee wants to speak with a lawyer, the police are obligated to immediately
facilitate contact with counsel.
As discussed above, the Supreme Court has made it clear that the plain meaning of the
word “immediately” is applicable in this context, subject to officer and public safety
concerns, and such other limitations as prescribed by law and justified under section 1
of the Charter. In addition, the peculiar impracticalities of an arrest may be considered
in assessing police compliance with the immediacy requirement.24 A Charter breach will
18
Jackson, ibid. at para. 24. But see R. v. Butler (1995), 104 C.C.C. (3d) 198 (BCCA), leave to appeal to S.C.C. refused, [1996] S.C.C.A. No. 90 [QL]. 19
R. v. Prosper, [1994] 3 S.C.R. 236, 1994 CarswellNS 25 at para. 44 [Prosper cited to WLeC]. 20
Ibid. 21
Evans, supra note 11 at para. 42. 22
Ibid. at para. 43. 23
Ibid. 24
See e.g., R. v. Nelson, 2010 ABCA 349. 4 likely be found, however, where no evidence of the safety concerns or impracticalities
advanced as an explanation for a delay in facilitating access to counsel is proffered.25
(2) If a detainee wishes to consult counsel, he or she must be afforded a reasonable
opportunity to speak with his or her counsel of choice in private.
If a detainee has expressed a preference to speak with a particular counsel and that
counsel is not immediately available, the detainee is entitled to wait a reasonable period
of time for contact from his or her counsel of choice.26 What constitutes a reasonable
period of time is dependent on a number of factors, including, the urgency of the
investigation, the availability of duty counsel, and the diligence of the detainee in
exercising his or her right to counsel. Reasonableness in this context must therefore be
assessed on a case-by-case basis.27
(3) The opportunity to contact counsel afforded a detainee must be a genuine
opportunity.
A detainee cannot be said to have exercised his or her right to counsel within the
meaning of section 10(b) if the counsel contacted refuses to provide any legal advice or
discuss the subject matter with the detainee.28 This also means that the police cannot
turn a “blind eye” to a detainee’s mistaken belief that he or she has spoken to legal
counsel.29
(4) Once a detainee indicates he or she wishes to contact counsel, the police are
required to refrain from gathering evidence from the detainee until he or she has been
afforded a reasonable opportunity to contact counsel.
In order for the purposes of the right to counsel to be actualized, a detainee must have
access to legal advice before he or she is questioned, or compelled to “make a decision
or participate in a process which could ultimately have an adverse effect in the conduct
of an eventual trial”.30 There may, however, be exigent or compelling circumstances
which necessitate proceeding with questioning before providing the detainee with a
reasonable opportunity to exercise right to counsel.31
25
See e.g., R. v. Smith, 2011 BCSC 1695. R. v. LeClair, [1989] 1 S.C.R. 3, 1989 CarswellOnt 67 at para. 16 (sub nom. Leclair and Ross v. R.) [Leclair cited to WLeC]. 27
LeClair, ibid., R. v. Mastin (1991), 65 C.C.C. (3d) 204, 1991 CarswellBC 420 at paras. 28‐9 (Mastin cited to WLeC) (CA), R. v. Smith, [1989] 2 S.C.R. 368, 1989 CarswellBC 154 at para 15 [Smith cited to WLeC], Prosper, supra note 19 at para. 36. 28
Mastin, ibid. at para. 33. 29
R. v. Vukasovic, 2010 ONCJ 661 at paras. 31‐35. 30
Manninen, supra note 5 at para. 23; LeClair, supra note 26 at para. 20. 31
Manninen, ibid. at para. 24; LeClair, ibid. at para. 20, Burlingham, supra note 12 at para. 13, Prosper, supra note 19 at para. 46. 26
5 (5) The police must refrain from besmirching the lawyer contacted by the detainee such
that the detainee’s confidence in, or relationship with, that counsel is undermined.32
The magnitude of the issues the court was asked to decide in Sinclair, McCrimmon and
Willier, provided it with an opportunity to rethink and redefine the fundamental purposes
and principles of the right to counsel. As will be illustrated in the next section of this
paper, the court was divided in its application of the canons of section 10(b). The
majority, however, recognized the respective changes sought by the Appellants and the
dissent as overgrowth and elected to leave the fundamental tenets of section 10(b)
untouched. Clarification was provided on when a detainee is constitutionally entitled to
re-consult counsel but was grounded in current section 10(b) principles.
No new
implementational duties were assigned.
THE FACTUAL BASIS OF THE TRILOGY
A. Sinclair
Sinclair was charged with second-degree murder, but convicted by a jury of the lesserincluded offence of manslaughter. Sinclair did not want to contact counsel immediately
upon his arrest. At the police detachment, however, he indicated he wanted to speak
with a lawyer he had previously retained. The police facilitated contact and Sinclair
spoke privately with his counsel of choice for approximately three minutes. When asked
if he was satisfied with the call, Sinclair responded, “Yeah, he’s taking my case.” Three
hours later police contacted Sinclair’s counsel of choice to determine whether he was
going to attend the police station to meet with Sinclair. The lawyer advised he would
not attend the station, but requested to speak with Sinclair again. This second
consultation lasted approximately three minutes. Sinclair’s custodial interview began
approximately six and a half hours later.
At the outset of the interview Sinclair confirmed that he had been informed of and
exercised his right to counsel. Sinclair was also read the official caution and advised of
the use of recording equipment. A few times during the initial rapport-building portion of
the interview, Sinclair indicated that he did not want to speak to the officer without his
lawyer present. The officer advised Sinclair that he did not have the right to have his
counsel present during the interview but that he had the right to choose whether to
speak with the officer and then continued building rapport. When the focus shifted to
the hotel in which the murder occurred, Sinclair alternated in his expressions of wishing
to remain silent and wishing to re-consult his lawyer, and on one occasion, indicated he
was uncertain about what he should do. The interviewer persisted with his questioning
and eventually Sinclair incriminated himself. Following the five-hour interview, Sinclair
made additional incriminating statements to an undercover officer who had been placed
in his holding cell.
Sinclair later accompanied police to the crime scene and
participated in a re-enactment of the offence.
After a voir dire, the trial judge ruled that Sinclair’s interview, statements to the
undercover officer and the re-enactment were neither involuntary nor taken in breach of
32
Burlingham, ibid. at para. 14. 6 either section 7 or 10(b). Sinclair appealed. Frankel J.A., for the British Columbia Court
of Appeal, dismissed Sinclair’s appeal, noting that the trial judge’s reasons were
comprehensive in fact and law.
B. McCrimmon
McCrimmon was arrested at his residence on a number of charges in relation to eight
assaults involving five different women. Upon arrest he wanted to speak with a lawyer.
At the police detachment he specified that he wanted to speak with a particular lawyer.
The police were unable to connect with that lawyer by telephone but left a voicemail
message. McCrimmon did not request that the police attempt to locate a home
telephone number for the lawyer nor did the police take the initiative to do so.
McCrimmon explained that he had only used his counsel of choice on one prior
occasion and expressed doubt about whether the lawyer would respond to the
message. He also said that he did not have experience with lawyers. When asked if he
would like to contact Legal Aid, McCrimmon responded in the affirmative but also stated
that he preferred his counsel of choice. McCrimmon then spoke privately with duty
counsel for approximately five minutes. At the conclusion of the telephone
conversation, McCrimmon expressed satisfaction with the call and confirmed that he
understood the advice provided. Approximately five hours later, Mr. McCrimmon was
escorted to an audio and video-recording-enabled interview room. The interview opened with McCrimmon’s confirmation of having spoken with a Legal Aid
lawyer and his recitation of the advice he received about his right to remain silent. The
interviewer affirmed McCrimmon’s right to silence and provided him with the official
caution. When questioned about the offences, McCrimmon said he did not want to
answer without first speaking with his lawyer. The interviewer again reaffirmed
McCrimmon’s right to silence and explained that he could not have his lawyer present
during the interview. Ten minutes after the interviewer explained the significance of
potential DNA evidence, McCrimmon again asked to speak with his lawyer. The
interviewer denied this request and reminded McCrimmon that he had already
exercised his right to counsel and was satisfied with the advice he received.
McCrimmon then requested that he be taken back to his holding cell. This request was
not accommodated and the interviewer pressed on with information about the offences
known to police and references to witness statements. When asked to provide his account, McCrimmon expressed feeling vulnerable without
his counsel, inexperienced with the legal system, and certain that he would not answer
without his lawyer present. The interviewer again affirmed McCrimmon’s assertion of his
right to silence. After the interviewer had engaged in lengthy rapport building, and
showed McCrimmon photographs of the victims and still shots from a store surveillance
system, McCrimmon made a number of incriminating statements. At a pre-trial concurrent voir dire, McCrimmon’s statements were impugned as
involuntary and in the alternative, as having been obtained in contravention of sections
7 and 10(b) of the Charter. McCrimmon did not call any evidence on the voir dire. The
trial judge concluded the statements were neither involuntary nor obtained in violation of
7 McCrimmon’s right to silence or right to counsel. McCrimmon was found guilty of
sexual assault, assault causing bodily harm and two charges of administering a noxious
substance. He had also entered guilty pleas to two other counts. He appealed the
convictions entered by the trial judge and represented himself at the British Columbia
Court of Appeal.
On appeal, McCrimmon argued that the trial judge erred in admitting his statement in
evidence because it was (i) the product of an atmosphere of oppression and thus,
involuntary; (ii) obtained in violation of his right to silence because he requested to go to
his cell and repeatedly asserted his desire to remain silent; and (iii) obtained in violation
of his right to counsel because he was questioned without being afforded an opportunity
to speak with counsel of choice and in the face of repeated requests to speak with a
lawyer.
Frankel J.A. (Huddart, Neilson JJ.A. concurring) dismissed the appeal. He concluded
there was no reason to disturb the trial judge’s finding on voluntariness and that
McCrimmon’s statement to the police was not obtained in violation of either section 7 or
10(b) based on the principles in R. v. Singh33 and the British Columbia Court of Appeal’s
decision in R. v. Sinclair.34 C. Willier
Willier was arrested on a Saturday afternoon at his brother’s apartment in relation to the
stabbing death of a woman with whom he had a personal relationship. Shortly after his
arrest Willier was transported to hospital because the police were concerned with his
physical well-being. When the arresting officers advised Willier of their intention to
speak with him after his health needs were addressed, Willier asserted his right to
counsel and to remain silent. While in the emergency department of the hospital, the
police informed Willier of the reason for his arrest and his right to retain and instruct
counsel without delay. They also corrected Willier’s misunderstanding about the
availability of Legal Aid. Willier elected to wait until the next day to contact counsel. Willier was discharged from the hospital at midnight and transported to the police
detachment, where he was re-informed of his right to counsel. Upon requesting Legal
Aid, he was placed in a private room, and provided with a telephone and contact
numbers. He had a three-minute telephone conversation with duty counsel and then
spent the remainder of the evening in a holding cell. The following morning, Willier was offered another opportunity to contact counsel.
Willier accepted this opportunity and the police attempted to facilitate contact with his
counsel of choice. Willier left a voicemail message for his counsel of choice and
expressed his preference to wait for his lawyer to call back instead of contacting another
lawyer. After being advised that his preferred counsel would not likely be accessible
33
34
2007 SCC 48, 2007 CarswellBC 2588 [Singh cited to WLeC]. 2008 BCCA 127. 8 until Monday and of the immediate availability of Legal Aid, Willier chose to speak with
duty counsel for a second time. This second consultation lasted approximately one
minute. Fifty minutes later the police interviewed Willier. At the commencement of the interview, Willier confirmed his prior consultations with
Legal Aid and was again provided his right to counsel and another opportunity to
contact a lawyer. After he advised the interviewer that he was satisfied with the legal
advice he had received, the interviewer reminded Willier of his right to remain silent and
read him the official caution. That he understood the caution was demonstrated by his
ability to explain its significance back to the interviewer. Finally, before beginning the
interview, Willier was advised that he would be free at any point during the interview to
contact a lawyer. Willier proceeded to provide a lengthy incriminating statement. At a voir dire held at the commencement of trial, Willier’s statement was ruled voluntary
but excluded under section 24(2) of the Charter on the basis that the police violated
Willier’s right to counsel by failing to (i) immediately inform him of this right upon his
arrest and (ii) provide him with a reasonable opportunity to contact his counsel of
choice. The exclusion of the statement led to Willier’s acquittal because the Crown
could not adduce other evidence. The Crown appealed Willier’s acquittal.
Slatter J.A. of the Alberta Court of Appeal allowed the appeal after noting several errors
of law, including, the trial judge’s “reliance on an inferred inadequacy of the advice
received by the respondent” and “an over-extension of the police’s informational
duty.”35 On the issue of the quality of legal advice received by Willier, Slatter J.A. wrote:
The police are required to notify the detained person that he has a right to
counsel, not to audit that advice once given. The police should not be
expected to stand by the interview room with a stopwatch, and insist that the
detained person and counsel stay on the line for some minimum amount of
time.36
THE ARGUMENTS IN SINCLAIR AND McCRIMMON
Gil McKinnon, Q.C., represented Sinclair and McCrimmon at the Supreme Court. He
argued that the court should recognize a continuing right to counsel under section 10(b)
because such a finding is consistent with the court’s long-standing purposive
interpretation of the right and compelled by policy. Below is a summary of the key
points argued in his factum:
1. An interpretation of section 10(b) that guarantees detainees an ongoing right to
counsel during a custodial interview is consistent with the right’s purpose of
ensuring adjudicative and investigative fairness.
35
36
2008 ABCA 126, [2008] A.J. No. 327 at para. 65 [cited to QL]. Ibid. at para. 28. 9 The Supreme Court has recognized section 10(b) as having a multi-faceted purpose. It
is intended to promote fairness in the criminal justice process; ensure detainees receive
advice about how to meaningfully exercise their legal rights when dealing with people in
authority; and correct the imbalance created by detention.37 Denying detainees the right
to have counsel present during custodial interviews precludes the achievement of any of
these purposes.38
2. A constitutional right to have ongoing access to counsel during a custodial
interview is consistent with the definition of the word “instruct” and the French
language wording of section 10(b).
Seeking instructions from clients is a continual endeavour given the fluid nature of
investigations and prosecutions. The word “instruct” as used in the legal profession
implies “a continuing right that can be exercised whenever and wherever the client
needs legal assistance.”39 The words “l’assistance d’un avocat” in the French language
text of section 10(b) also recognize the continuing role of counsel in giving or lending
assistance.40
3. An ongoing right to consult counsel in a custodial interview protects the
vulnerable.
While all detainees face a psychological disadvantage upon detention, this
disadvantage is heightened for those with a mental or intellectual disability, those at a
cultural disadvantage, women, and those overtaken by grief or guilt who fail to
appreciate they may have a legal excuse for their conduct. Only with an ongoing right
to legal advice “whenever and wherever the detainee needs it” can the disadvantage be
neutralized.41
Mr. McKinnon also argued that declaring the presence of defence counsel in custodial
interviews a constitutional right would be consistent with the provisions in the Youth
Criminal Justice Act, S.C. 2002, c. 1, governing the taking of a statement from a young
person, Canada’s international obligations pursuant to the Rome Statute of the
International Criminal Court, 17 July 1998, A/CONF. 183/9, and the rights afforded
detainees in other liberal democracies.42
Much of the Crown’s argument in reply focused on the lack of support in the current
jurisprudence on s. 10(b) for the Appellants’ arguments and the lack of cogent
justification for divergence from this body of settled law. Below is a summary of the main
arguments from the Crown’s factum:
37
Appellant’s Factum (Sinclair) at para. 52. Ibid. at para. 53. 39
Ibid. at para. 59. 40
Ibid. at para. 63. 41
Ibid. at paras. 84‐6. 42
Ibid. at paras. 64‐83. 38
10 1. The sought expansion of section 10(b) is neither supported by provincial nor
appellate jurisprudence.
Provincial and appellate courts across Canada have repeatedly declined the opportunity
to broaden section 10(b) to provide detainees with a right to have counsel present
during custodial interviews. Appellate courts nationwide have also rejected the
argument that detainees must be given ongoing access to counsel on demand
throughout custodial interviews to ensure the achievement of the objectives of the right
to counsel.43
In addition, the judicial interpretation of the informational and implementational duties
imposed on police by section 10(b) has always restricted the right to counsel to the
front-end of investigations. For example, detainees must be advised of their right to
retain and instruct counsel “without delay” and must also be informed of their right to
access free, immediate and temporary legal advice through duty counsel service and
the police are obligated to refrain from questioning a detainee “until” the right to counsel
has been exercised.44
This settled body of law collectively and correctly endorses the view that section 10(b) is
a limited right designed provide detainees with “immediate access to preliminary legal
advice that is intended to assist detainees in making an informed choice about whether
to speak with the authorities.”45
2. Broadening section 10(b) as suggested by the Appellants would render right to
counsel a greater protector of a detainee’s right to silence than section 7.
In Singh, the Supreme Court held that police are not obligated to stop questioning a
detainee whenever he or she asserts his or her right to silence. To give effect to the
Appellants’ arguments would undermine the thoughtful balance between the public
interest in investigating crime and the individual right to silence reached by the court in
Singh. Detainees would have the power to stop custodial interviews whenever they
request a re-consultation with counsel or the presence of counsel in the interview.
Ultimately, the right to counsel would be broadened to such an extent that it would
supplant section 7 as the primary protector of the right to silence.46
3. The implementation of section 10(b) as envisioned by the Appellants would
present a number of significant practical difficulties, including the following: how
to facilitate the presence of counsel in remote jurisdictions; what should be done
if counsel is unavailable to attend the detachment for a long period of time; and
what should be done if a detainee cannot afford to have counsel attend in
person.47
43
Respondent’s factum (Sinclair) at paras. 31‐38. Ibid. at paras. 62‐5, 72‐6. 45
Ibid. at para. 38. 46
Ibid. at paras. 50‐56. 47
Ibid. at para. 57. 44
11 4. The common law confessions rule is the most appropriate and constitutionally
consistent framework to employ when assessing police denials of detainee
requests for the presence of counsel or opportunities to re-consult counsel.
The application of the confession rules mandates consideration of the full context of an
accused’s statement to a person in authority. This would include review of refusals to
accommodate a detainee’s request to have a lawyer present during questioning or to reconsult a lawyer during questioning. If there is a reasonable doubt about the effect on a
detainee’s decision to speak with police of the physical absence of counsel during the
interview or a refusal to facilitate further contact with counsel, the detainee’s statement
will be excluded. 48
SINCLAIR and McCRIMMON: NO RIGHT TO HAVE COUNSEL PRESENT DURING
AN INTERVIEW OR TO RE-CONSULT ON DEMAND
In Sinclair and McCrimmon, the majority reached four conclusions that collectively reject
the significant expansion of the current set of implementational duties imposed on police
officers by section 10(b) sought by the Appellants:
1. S. 10(b) does not entitle detainees to the presence of defence counsel during
custodial interviews.
2. In most situations, an initial consultation with legal counsel will supply detainees
with the information they need to make a meaningful decision about whether to
cooperate with a police investigation. Only where the investigation develops in
such a manner as to leave detainees without the information required to make
such a decision is re-consultation with counsel constitutionally mandated.
3. The types of investigative developments that obligate police to facilitate a reconsultation include requests for the detainee’s participation in non-routine
procedures, changes in the detainee’s legal jeopardy and the presence of
objective indicia that the detainee may not understand his or her s. 10(b) right.
4. The categories of developments that compel a re-consultation are not closed but
ought to be expanded only on a principled basis.
Detainees Are Not Entitled to Have Counsel Present During Custodial Interviews
The majority started with first principles by assessing Sinclair and McCrimmon’s
arguments for constitutional entitlement to the presence of defence counsel during
custodial interviews against the text and purposes of the right to counsel. Neither the
text of the right nor its twin purposes, however, were found to demand any change to
the status quo:
The language of s. 10(b) does not appear to contemplate this requirement.
Mr. Sinclair relies on an expansive construction of the word "instruct",
together with an emphasis on the French "l'assistance d'un avocat". He
argues that this wording "invites a broad and unrestricted interpretation
48
Ibid. at para. 58. 12 focused on meeting the needs of [the detainee] whenever and wherever
required". While "retain and instruct" and their French equivalent reasonably
connote more than a perfunctory consultation prior to interrogation, as
discussed above, they do not necessarily imply the continued presence of
counsel throughout the interview process.
This returns us to the purpose of s. 10(b). As discussed above, it is to inform
the detainee of his or her rights and provide the detainee with an opportunity
to get legal advice on how to exercise them. These purposes can be
achieved by the right to re-consult counsel where developments make this
necessary, as discussed below. They do not demand the continued presence
of counsel throughout the interview process.
...
We conclude that s. 10(b) should not be interpreted as conferring a
constitutional right to have a lawyer present throughout a police interview.
There is of course nothing to prevent counsel from being present at an
interrogation where all sides consent, as already occurs. The police remain
free to facilitate such an arrangement if they so choose, and the detainee
may wish to make counsel’s presence a precondition of giving a statement.49
Re-Consultation is Seldom Necessary
The twin purposes of section 10(b) are intended to equip a detainee with the information
he or she requires to make a decision about whether to cooperate with a police
investigation. An initial consultation with counsel, either at the time of or shortly after
detention or arrest, will so prepare detainees in most cases. A re-consultation is
required only where developments occur in the investigation that would otherwise leave
the detainee ill-informed and therefore ill-equipped to make a meaningful decision about
whether to cooperate with the investigation.50 In reaching this conclusion, the court drew
on its section 10(b) jurisprudence as well as that from appellate courts.
To provide guidance to police officers, the majority identified three categories of
investigational developments that would necessitate a re-consultation:
1. New Procedures Involving the Detainee
An initial consultation with counsel is expected to involve a discussion about the likely
intention of the police to question the detainee, the detainee’s right to silence and
advice on how he or she can assert his or her right to silence. Non-routine procedures
are generally not canvassed with the detainee at this point.51 Consequently, when a
detainee is asked to participate in a non-routine procedure, a re-consultation is required
in order to allow the detainee to gather the information he or she needs to decide
49
Sinclair, supra note 2 at paras. 35‐6, 42. McCrimmon, supra note 3 at para. 21. 51
Sinclair, supra note 2 at para. 50. 50
13 whether to participate.52 In R. v. Briscoe, the Alberta Court of Queen’s Bench
interpreted the majority decision in Sinclair as requiring re-consultation only before the
detainee participates in a non-routine procedure. On this reading of the decision, the
police can discuss a non-routine procedure with the detainee without having to facilitate
further contact with counsel.53
The majority in Sinclair identified requests to participate in a line-up or submit to a
polygraph as examples of non-routine procedures. The investigative technique of
gradually revealing real or fake evidence to illustrate or exaggerate the strength of the
case mounting against the detainee, however, is not a non-routine procedure.54 Nor is
the recording of a detainee’s voice during a custodial interview.55 Given the facts in
Sinclair, a re-enactment also does not appear to qualify as a non-routine procedure.56
Many other investigative strategies, for example, requests to provide DNA, consent to
release medical information or to search one’s home, cellular phone or computer, would
likely demand a re-consultation.
2. Changes in Jeopardy
When an investigation leads to more serious allegations, a re-consultation is required
because the initial legal advice likely concentrated on the allegations as known at the
time.57
3. Reason to Doubt the Detainee’s Understanding of his or her S. 10(b) right
If there are indicia that the detainee may not have understood the advice he or she
received or has become confused about his or her choices, a re-consultation is
required. Likewise, if the police undermine the initial advice received, they are obligated
to facilitate a re-consultation.58
The majority held that the indicia of a need for re-consultation must be “objectively
observable.”59 Although this prerequisite was not explicitly confined to the third
category, the court appears to have recognized that the third category is where it will
likely have the most application:
The change of circumstances, the case suggest, must be objectively
observable in order to trigger additional implementational duties for the
police. It is not enough for the accused to assert, after the fact, that he was
confused or needed help, absent objective indicators that renewed legal
52
Ibid. 2012 ABQB 111, [2012] A.J. No. 196 at para. 101 [Briscoe cited to WLeC] [reasons on voir dire]. 54
Sinclair, supra note 2at para. 60; McCrimmon, supra note 3 at para. 23. 55
R. v. Wu, 2010 ABCA 337, [2010] A.J. No. 1327 at paras. 65‐71 [Wu cited WLeC]. 56
Sinclair, supra note 2 at para. 66. 57
Ibid. at para. 51. 58
Ibid. at para. 52. 59
Ibid. at para. 54. 53
14 consultation was required to permit him to make a meaningful choice as to
whether to cooperate with the police investigation or refuse to do so.60
Where a detainee reveals during a custodial interview, for example, that he or she does
appreciate that he or she had been put in contact with a lawyer, further contact with
counsel will be constitutionally required.61
The majority held that where it is alleged that a detainee did not understand or became
confused about his or her legal advice, the question for reviewing courts to ask is
whether the totality of the circumstances “indicate that the detainee required further
legal advice in order to fulfill the purpose of s.10(b) of providing legal advice on his
choice as to whether to cooperate with the police or not”62
Although the court did not close the categories in which a re-consultation is
constitutionally required, it cautioned that “additions to them should be developed only
where necessary to ensure that s. 10(b) has achieved its purpose.”63
Moreover, it remains open to investigators to facilitate re-consultations with counsel
even where not necessary to uphold the detainee’s section 10(b) right:
The police, of course, are at liberty to facilitate any number of further
consultations with counsel. In some circumstances, the interrogator may
even consider it a useful technique to reassure the detainee that further
access to counsel will be available if needed. For example, in the companion
case of R. v. Willier [citation omitted], a skilled interrogator commenced the
interview by making it clear to the detainee that he would be free at any time
during the interview to stop and call a lawyer.64
The majority concluded that neither Sinclair nor McCrimmon were presented with nonroutine police procedures or a change in jeopardy during their respective interviews.
After a detailed and contextual analysis of their requests to re-consult their counsel, the
majority further concluded that neither became confused about their respective rights to
remain silent or were subject to police denigration of that right.65
SINCLAIR and McCRIMMON: THE DISSENT
Like the majority, Binnie J. rejected an interpretation of section 10(b) that would entitle
detainees to the presence of defence counsel upon request.66 His central point of
dissent is with the majority’s assessment of what is required to constitutionally protect a
detainee’s right to silence in a custodial interview. In his view, the majority took too
narrow a view of the challenging task thrust on defense counsel in equipping detainees
60
Ibid. at para. 55. See e.g., R. v. Somogyi, 2010 ONSC 5585. 62
R. v. McCrimmon, supra note 3 at para. 67. 63
Sinclair, supra note 2 at para. 49; McCrimmon, ibid. 64
Sinclair, ibid. at para. 49. 65
Sinclair, ibid. at paras. 22‐5, McCrimmon, supra note 3 at para. 71. 66
Sinclair, ibid. at paras. 82, 100‐03. 61
15 with the information they need to make meaningful decisions about cooperating with
police:
That said, I believe the majority view expressed by the Chief Justice and
Charron J. undershoots the right. Their interpretation presupposes that a
detainee is faced with a stark binary choice between cooperation and noncooperation, whereas a properly informed detainee may choose to cooperate
with the police in whole or in part on some issues but not on others. A
lawyer’s “one size fits all” instruction to a detained individual to keep quiet
and decline to cooperate may turn out to be terrible advice. As more
information is put to the detainee in the course of the interrogation regarding
the date, time, and circumstances of the offence, for example, it may emerge
that he has an alibi but he will fail to disclose it – because the lawyer told him
over the phone to say nothing – despite the fact it would be in the detainee’s
interest to make such disclosure immediately…. There will be many matters
unknown to the lawyer (and perhaps to the detainee) in their initial
conversation. Preliminary advice might provide a snapshot of the applicable
law and is, of course, a good start, but it hardly discharges the detainee’s
right to meaningful legal “assistance.”67
In his view, the proper interpretation lies between the majority’s narrow approach and
the “ambitious”68 position of Sinclair and McCrimmon that detainees are entitled to have
defence counsel present at custodial interview.
Detainees would be allowed
“reasonable access to legal advice from time to time in the course of a police
interrogation … without defence counsel being present”.69 “Reasonable access” is that
which is (i) “related to the need for legal assistance” as opposed to access sought for
the purpose of thwarting the investigation, and (ii) objectively supported by
circumstances specific to the interview.70 Objective support for re-consultation could
include the following:
1. The extent of prior contact with counsel. Was it an extended
consultation or a cursory telephone call?
2. The length of the interview at the time of the request. A request
made after an hour of questioning may carry more weight than one
made as soon as the questioning begins.
3. The extent of other information (true or false) provided by the
police to the detainee about the case during the interrogation, which
may reasonably suggest to the detainee that the advice in the initial
consultation may have been overtaken by events.
67
Sinclair, ibid. at para. 104. Sinclair, ibid. at para. 82. 69
Sinclair, ibid. at para. 105, McCrimmon, supra note 3 at para. 29. 70
Sinclair, ibid. at para. 106, McCrimmon, ibid. 68
16 4. The existence of exigent or urgent circumstances that militate
against any delay in the interrogation.
5. Whether an issue of a legal nature has arisen in the course of the
interrogation, e.g. if the police bring forward "similar fact"
occurrences allegedly involving the detainee, he or she might
legitimately want to understand how a response to questions on
those collateral events might impact potential liability on the crime
charged.
6. The mental and physical condition of the detainee, including
signs of fatigue or confusion, to the extent that this is or ought to be
apparent to the interrogator.71
The remaining three dissenting judges (LeBel, Fish and Abella JJ.) would also interpret
section 10(b) as including an ongoing right to counsel,72 but disagree with the Binnie J.’s
framework for determining when that ongoing right can be exercised.73
SINCLAIR and McCRIMMON: THE EFFECT OF REFUSING RE-CONSULTATIONS
ON A DETAINEE’S RIGHT TO SILENCE
In R. v. Hebert, the majority of the Supreme Court identified freedom of choice in
speaking with the police as a theme tying the right to silence to the right to retain and
instruct counsel, the privilege against self-incrimination, and the common law
confessions rule.74 On the interplay of the right to silence and the right to counsel,
Madam Justice McLachlin (as she then was) wrote:
The guarantee of the right to consult counsel confirms that the essence of the
right is the accused’s freedom to choose whether to make a statement or not.
The state is not obliged to protect the suspect against making a statement;
indeed, it is open to the state to use legitimate means of persuasion to
encourage the suspect to do so. The state is, however, obliged to allow the
suspect to make an informed choice about whether or not he will speak to the
authorities. To assist in that choice, the suspect is given the right to
counsel.75
Charron J., writing for the majority in Singh, affirmed the interrelation of the right to
silence and the confessions rule. She noted that the broad ambit of the confessions
71
Sinclair, ibid. at para. 106. Sinclair, ibid. at para. 179. 73
McCrimmon, supra note 3 at paras. 37‐8. 74
[1990] 2 S.C.R. 151, 1990 CarswellYukon 7 at paras. 99‐100, 104 [Hebert cited to WLeC]. 75
Ibid. at para. 110. 72
17 rule has long subsumed the principle of the right to silence,76 resulting in a functional
equivalency between the tests for voluntariness and a breach of the right to silence in
situations involving a statement provided by a detainee to a person in authority:
A finding of voluntariness will therefore be determinative of the s. 7 issue. In
other words, if the Crown proves voluntariness beyond a reasonable doubt,
there can be no finding of a Charter violation of the right to silence in respect
of the same statement.
The converse holds true as well.
If the
circumstances are such that an accused is able to show on a balance of
probabilities a breach of his or her right to silence, the Crown will not be in a
position to meet the voluntariness test.77
Singh sought an interpretation of the right to silence that would prevent police from
questioning any detainee who asserts his or her right to silence absent a signed waiver
of their right. Singh was arrested on a charge of second-degree murder and subjected
to two custodial interviews. During the interviews Singh asserted his right to silence 18
times. After each assertion, the interviewing officer either affirmed Singh’s right to
silence or explained that he had a duty/wished to provide Singh with the evidence
against him and then proceeded with the interview.
The majority rejected Singh’s proposed construction of the right to silence on the bases
that it exceeded the protection of a detainee’s choice to speak afforded by both section
7 and the confessions rule, and ignored the careful balancing of the public interest in
investigating crime and individual rights struck by the court.78 The court endorsed the
prerogative of the police to use legitimate means of persuasion to elicit a statement from
a detainee, but also warned that the decision to continue questioning a detainee who
has repeatedly asserted his or her right to silence, “may well raise a strong argument
that any subsequently obtained statement was not the product of a free will to speak to
the authorities”.79
How do Requests for Additional Contact with Counsel Affect Voluntariness?
The majority in Sinclair and McCrimmon provided a caution similar to the one articulated
in Singh:
We conclude that the principles and case-law do not support the view that a
request, without more, is sufficient to re-trigger the s. 10(b) right to counsel
and to be advised thereof. What is required is a change in circumstances that
suggests that the choice faced by the accused has been significantly altered,
requiring further advice on the new situation, in order to fulfill the purpose of
s. 10(b) of providing the accused with legal advice relevant to the choice of
whether to cooperate with the police investigation or not. Police tactics short
76
Singh, supra note 33 at paras. 31‐2, 39. Ibid. at para. 37. 78
Ibid. at paras. 43, 47. 79
Ibid. at para. 47. 77
18 of such a change may result in the Crown being unable to prove beyond a
reasonable doubt that a subsequent statement was voluntary, rendering it
inadmissible. But it does not follow that the procedural rights granted by s.
10(b) have been breached.80
Thus, even where a re-consultation with counsel is constitutionally unnecessary –
meaning it is not necessary to ensure the detainee is provided with legal advice on his
or her choice to speak with police – it is open to the court to consider the effect of a
refusal on behalf of the police to accommodate additional contact on the voluntariness
of any subsequent statement. The concern about the “subjective impact” on a detainee
of disallowing access to counsel was recognized by the Supreme Court nine years
before the trilogy in R. v. Oickle:
Under these circumstances, it is no surprise that the Court of Appeal
concluded the statement was involuntary. Under inhumane conditions, one
can hardly be surprised if a suspect confesses purely out of a desire to
escape those conditions. Such a confession is not voluntary. For similar
examples of oppressive circumstances, see R. v. Owen (1983), 4 C.C.C. (3d)
538 (N.S. C.A.); R. v. Serack (1973), [1974] 2 W.W.R. 377 (B.C. S.C.).
Without trying to indicate all the factors that can create an atmosphere of
oppression, such factors include depriving the suspect of food, clothing,
water, sleep, or medical attention; denying access to counsel; and
excessively aggressive, intimidating questioning for a prolonged period of
time.81
The bottom line is this: Unlike the right to silence and the confessions rule, there is no
functional equivalency of legal tests for voluntariness and a breach of section 10(b). If a
detainee is unable to discharge his or her burden of proving a section 10(b) breach for
failure to facilitate further contact with counsel, it does not follow that the statement is
voluntary. Refusals to arrange additional access to counsel may fall short of infringing a
detainee’s section 10(b) rights yet create or contribute to an atmosphere of oppression
which negates the detainee’s free will.
McCRIMMON and WILLIER: THE MAJORITY ON COUNSEL OF CHOICE AND
ADEQUACY OF ADVICE FROM COUSEL
Recall that both McCrimmon and Willier expressed a desire to speak with particular
counsel but chose to contact Legal Aid after contact with their preferred counsel could
not be arranged immediately and they were advised of the immediate availability of
Legal Aid. At trial and on appeal, they both alleged that their statements were obtained
in violation of section 10(b) because they were denied the opportunity to contact their
counsel of choice.
80
81
Sinclair, supra note 2 at para. 65. Also see McCrimmon, supra note 3 at para. 26. 2000 SCC 38, 2000 CarswellNS 257 at para. 60 [cited to WLeC]. 19 Willier advanced the specific argument that s. 10(b) should require the police to provide
a Prosper-esque type warning to detainees who are unsuccessful in contacting their
preferred counsel and elect to contact different counsel. He also made the related
argument that the police failed to discharge their implementational duties because they
should have known from the brevity of his consultations with duty counsel that he
received inadequate legal advice and subsequently arranged further contact with
counsel. The court rejected both McCrimmon’s and Willier’s arguments.
Counsel of Choice
The court reaffirmed that when a detainee requests to speak with a particular counsel,
the police must refrain from questioning that detainee until he or she has been given a
reasonable opportunity to contact his or her preferred counsel. If the detainee’s
preferred choice is unavailable, the detainee is entitled to reject the option of contacting
a different lawyer and wait for a reasonable period of time for his or her counsel of
choice.82 The detainee, however, is required to exercise “reasonable diligence” in
exercising his or her right to counsel.83 Where a detainee is demonstrating diligence,
the police must refrain from questioning or eliciting information from the detainee until
he or she has contacted his or her preferred counsel.84 If a reasonable period of time
has passed and the detainee has not been successful in contacting his or her selected
counsel, the detainee “is expected to exercise his or her right to counsel by calling
another lawyer, or the police duty to hold off will be suspended.”85
On the definition of “reasonable”, the court offered the following guidance:
What amounts to a reasonable period of time depends on the circumstances
as a whole, including factors such as the seriousness of the charge and the
urgency of the investigation. It is also informed by the purpose of the
guarantee. The right to counsel upon arrest or detention is intended to
provide detainees with immediate legal advice on his or her rights and
obligations under the law, mainly regarding the right to remain silence.86
No Prosper-esque Warning Where Another Lawyer is Voluntarily Chosen
In response to Willier’s argument that he should have been provided a Prosper-esque
warning after his failure to contact his preferred counsel, the court distinguished the
circumstances in Prosper from those of Willier:
A Prosper warning is warranted in circumstances where a detainee is diligent
but unsuccessful in contacting a lawyer and subsequently declines any
opportunity to consult with counsel….
82
McCrimmon, supra note 3 at para. 17. Ibid. 84
Ibid. 85
Ibid. 86
Ibid. at para. 18. 83
20 The circumstances of this case are not analogous. The concerns animating
the provision of a Prosper warning do not arise when a detainee is
unsuccessful in contacting a specific lawyer and simply opts to speak with
another. In no way did Mr. Willier attempt to relinquish his right to counsel
and thus any opportunity to mitigate his legal advantage. He made no
attempt to waive his s. 10(b) right. Instead, unsuccessful in contacting Mr.
Royal, he exercised his right to counsel by opting to speak with Legal Aid.
As such, the police were under no obligation to provide him with a Prosper
warning and its absence fails to establish a Charter breach.87
The court also held that when a detainee’s preferred choice is not immediately
available, it is correct for the police to inquire about the detainee’s desire to contact
Legal Aid instead. If a detainee opts to do so, and after the consultation expresses
satisfaction with the legal advice received and awareness of his or her legal rights, the
police are not required to refrain from questioning the detainee.88
Of course, had there been evidence that McCrimmon or Willier called duty counsel
under coercion or the impression that they had no other option, the police would likely
have been found in breach.89
No Obligation On Police to Exercise Quality Control
The court noted that by asking it to infer from the brevity of the consultations Willier had
with Legal Aid that he received inadequate legal advice, Willier was asking the court to
impose a duty on police to ensure a threshold standard of legal advice before
undertaking a custodial interview.90 This argument was succinctly rejected:
While s. 10(b) requires the police to afford a detainee a reasonable
opportunity to contact counsel and to facilitate that contact, it does not
require them to monitor the quality of the advice once contact is made. The
solicitor-client relationship is one of confidence, premised upon privileged
communication. Respect for the integrity of this relationship makes it
untenable for the police to be responsible, as arbiters, for monitoring the
quality of legal advice received by a detainee. To impose such a duty on the
police would be incompatible with the privileged nature of the relationship.
The police cannot be required to mandate a particular qualitative standard of
advice, nor are they entitled to inquire into the content of the advice provided.
Further, even if such a duty were warranted, the applicable standard of
adequacy is unclear. As this Court recognized in R. v. B. (G.D.), 2000 SCC
22, [2000] 1 S.C.R. 520 (S.C.C.), at para. 27, there is a "wide range of
87
Willier, supra note 4 at paras. 38‐9. McCrimmon, supra note 3 at para. 19. 89
Willier, supra note 4 at para. 43. 90
Ibid. at para. 40. 88
21 reasonable professional assistance", and as such what is considered
reasonable, sufficient, or adequate advice is ill defined and highly variable.91
The police are entitled to assume a detainee is satisfied with his or her contact with
legal counsel and to begin eliciting information from the detainee in the absence of a
“reasonable and diligent” indication by the detainee that he or she has received
inadequate advice.92 Moreover, a detainee cannot express satisfaction with legal advice
received, fail to accept additional offers to contact legal counsel prior to the
commencement of an interview, and then fail to testify in a voir dire about the alleged
inadequacies of the advice and ask a court to infer inadequacy from the length of the
consultation.93
DOES THE TRILOGY OVERRULE OSMOND?
Although the majority decisions in the trilogy did not expressly overrule the British
Columbia Court of Appeal’s decision in R. v. Osmond,94 the British Columbia Court of
Appeal has recognized that Willier may have brought the reasoning in Osmond into
question.95
Osmond was arrested on a Friday for the first-degree murder of a thirteen-year-old girl.
He was twenty-one years old at the time of his arrest and had not completed high
school. He lived in a remote community on the west coast of Vancouver Island, where
he worked as labourer.
En route to the police detachment, Osmond asked what was happening. One of the
officers explained that he was under arrest for murder and advised him of his right to
retain and instruct counsel and his right to remain silent. Osmond interrupted to advise
that he understood his rights because he had taken a grade twelve law course. At the
detachment Osmond tried to get particulars about the offence from the officers before
deciding whether to contact counsel. Osmond explained that he did not commit the
murder and therefore was confused as to whether he needed a lawyer. The arresting
officer repeated the reason for Osmond’s arrest and opined that anyone who gets
arrested for murder should talk to a lawyer. He then placed Osmond in the telephone
room and explained that he was being given an opportunity to call a lawyer. Osmond
continued to ask the officer for more facts in order to determine whether he should get a
lawyer and then ultimately said the only lawyer he knew was someone from Port Hardy
or Port McNeil with a name like Seamore. The officer who had been in the vehicle with
the arresting officer and Osmond for the drive to the detachment knew the name of
Osmond’s former counsel and where he practiced. He, however, did not volunteer the
91
Ibid. at para. 41. Ibid. at para. 42. 93
Ibid. 94
2007 BCCA 470, 2007 CarswellBC 2349, leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 545 [Osmond cited to WLeC] [QL]. 95
R. v. Ashmore, 2011 BCCA 18, 2011 CarswellBC 86 at para. 63, leave to appeal to S.C.C. refused, [2011] S.C.C.A. No. 280 [cited to WLeC] [QL]. 92
22 name of the lawyer. The arresting officer did not inquire with Osmond whether this was
his counsel of choice. Osmond was also prohibited from visiting with either his girlfriend
or father, who could have arranged counsel. Instead, the officers began to explain the
24-hour availability of Legal Aid. The police then dialled the Brydges line and left a
message explaining that Osmond had been arrested for first-degree murder and wished
to speak with duty counsel. Osmond was not provided with a telephone book or a list of
local lawyers who accept Legal Aid. When the duty counsel phoned back, Osmond
spoke with him for approximately two minutes. The police began interviewing Osmond
after this consultation. The interview lasted for a portion of Friday evening and
continued the next morning.
During the interview, Osmond continued to try to elicit from the police what incriminating
evidence they had in their possession. He also tried to argue his case with the police by
pointing to conduct he considered inconsistent with having committed the offence.
When the officer expressed his desire to assure Osmond’s father and girlfriend, as well
as the community, that this murder was not the act of a predator, Osmond confessed to
having caused the victim’s death.
At trial Osmond’s statements were impugned as involuntary and derived in breach of
Osmond’s section 10(b) rights in two voir dires. Osmond only testified on the Charter
voir dire. The duty counsel who spoke to Osmond on the Friday evening also testified
on the Charter voir dire.
The duty counsel testified that on the evening he spoke with Osmond he was the only
lawyer on call for the whole of British Columbia, and that he dealt with approximately 44
calls during an average shift. He had no independent recollection of the phone call but
refreshed his memory by resort to a form on which he made notations during the call.
From his perspective, his mandate as duty counsel was threefold: to ascertain whether
the detainee was likely to remain in custody over the weekend; to advise the detainee of
his or her right to silence; and to tell the detainee several times to refrain from speaking
to the police or anyone in cells. He testified that the average call lasts between two and
four minutes, during which time he does not consider it necessary to learn the details of
the case against the detainee.
Donald J.A. concluded that the consultation Osmond had with duty counsel did not
constitute access to counsel within the meaning of section 10(b) because the advice
received did not provide Osmond with direction on how to exercise his right to silence.
In arriving at this decision, he undertook a comprehensive analysis of the entire context
of the custodial interrogation:
In this case, the Brydges call was entirely inadequate. Consider, first, the
appellant, who was 21 years old at the time of interrogation, had not
completed high school, worked as a labourer, came from a remote, tiny,
resource-based community on the west coast of Vancouver Island, and was
obviously unsophisticated. The judge said he was intelligent. He evidently
had an operating mind, but the transcript reveals an immature and over23 confident individual who foolishly thought he could talk his way out of a very
bad predicament. He did not have the savoir faire to know that he was
hopelessly outmatched by a trained R.C.M.P. officer from the Serious Crimes
Unit.
Consider, also, the isolation of the appellant. Having been arrested in the late
afternoon on a Friday, his access to a lawyer was problematic. He wanted to
speak to his father and girlfriend. That was denied until after the police
interrogation. The Brydges call was to a lawyer outside Courtenay (it was
Abbotsford, but it could have been anywhere, including an offshore call
centre) and the lawyer told him that he would be in custody all weekend and
would probably see a duty counsel on a first court appearance on the
Monday. In the meantime, the lawyer told him to be quiet. In other words, he
was on his own through the weekend.
The Friday arrest meant the appellant remained in police cells, permitting
ready access to him by the police, under their control, an advantage that the
investigating officer acknowledged in the voir dire, rather than at a remand
centre where he could receive visits from his father.
Upon arrival at the detachment office, he was asked if he knew a lawyer. He
mentioned a lawyer, one Seamore (which was incorrect), who represented
him on a Youth Court problem several years previously, but at that point he
was uncertain whether he needed a lawyer. One of the officers involved in
the arrest knew who the appellant was referring to, the lawyer's proper name
and where he practised, but did nothing to help locate him for the appellant.96
Donald J.A. concluded that the legal advice provided to Osmond failed to meet
Osmond’s particular needs as evidenced by his behaviour during the interview;
specifically, his attempts to pry particulars from the police and to persuade them of his
innocence.97 Donald J.A. reached this conclusion, however, only after a comprehensive
assessment of the totality of circumstances surrounding Osmond’s statement, including
his education, maturity and sophistication; the length of the consultation he had with the
duty counsel; his expectation of discussing the information he gathered during the
custodial interview with legal counsel over the weekend; and the testimony of the duty
counsel. How much of the information put before Donald J.A. was known to the police
is uncertain. Also of significance is Donald J.A.’s failure to identify any particular
statement made by or conduct displayed by Osmond, or combination thereof, as a
signal that should have alerted the police to a need for additional access to counsel.
The decision is further complicated by Donald J.A.’s reference to the failure of the police
to (i) assist Osmond in locating contact information for his counsel of choice; and (ii) let
Osmond visit with his father or girlfriend who may have been able to assist in arranging
counsel for Osmond. At the very least, however, the decision implies that the police
ought to have inferred that Osmond received ineffective legal advice from his queries
96
97
Osmond, supra note 94 at paras. 38‐41. Ibid. at paras. 51‐2. 24 about what evidence the police had in their possession and his strategy to persuade
them of his innocence concomitant with the brevity of his legal consultation, and
arranged further consultation with counsel.
To the extent that Osmond implies that section 10(b) entitles detainees to legal advice
on how to exercise their right to silence that is tailored to their intelligence, maturity and
sophistication, and places a correlative duty on the police to facilitate contact with
counsel until such advice is received, it appears to have been implicitly overruled by the
trilogy. In Sinclair, the majority reaffirmed that the objective of section 10(b) is to
ensure that a detainee’s decision as to whether to cooperate with an investigation is
free and informed by giving them the “opportunity to access legal advice relevant to that
choice.”98 It is neither designed to “guarantee that the detainee’s decision is wise” nor to
“guard against subjective factors that may influence the decision”.99 This restatement
of section 10(b)’s ultimate purpose leaves no room for a guarantee of the type of
individualized preliminary legal advice held out as the standard in Osmond.
This said, the majority in Sinclair and McCrimmon recognized that in certain but rare
circumstances the police will be constitutionally obliged to facilitate re-consultation with
counsel before continuing with a custodial interview. The presence of “objectively
observable” indicia that a detainee may not understand the legal advice he or she
received, or has become confused about his or her choices, was identified as one such
circumstance. In the absence of such indicia, the police are permitted to assume that
the preliminary legal advice provided was “sufficient and correct in relation to how the
detainee should exercise his or her rights.”100 Although the court did not offer much
guidance as to what constitutes “observably objective” indicia, the decisions make it
clear that brevity of the legal consultation is insufficient. Even statements that appear on
their face to be expressions of a detainee’s confusion about his or her right to silence
must be examined within the full context of the interview to determine their
significance.101 Moreover, the majority in Willier held that the police are neither obliged
nor entitled to exercise a quality control function in relation to the legal advice provided
to detainees, regardless of the length of the consultation.
While it seems certain that the trilogy has more than brought the reasoning in Osmond
into question, it has left unanswered the questions of what constitutes “observable
indicia” of misunderstanding or confusion, and what factors the police are to consider in
evaluating these indicia. The court held that “the better approach is to continue to deal
with claims of subjective incapacity or intimidation under the confessions rule.”102 But
how, if at all, do subjective limitations known to police factor into their assessment of
whether there are objectively observable indicia of confusion or misunderstanding?
98
Sinclair, supra note 2 at para. 26. Ibid. 100
Ibid. at para. 57. 101
Ibid. at paras. 70‐4. 102
Ibid. at para. 60. 99
25 PRACTICE POINTS
From the trilogy we can distil a number of practice points to consider regarding the
conduct of voluntariness and section 10(b) voir dires in relation to a detainee’s incustody statement to police.
Concurrent vs. Separate Voir Dires
The consensus among counsel appears to be that the issue of voluntariness and a
section 10(b) challenge in relation to the same statement can be addressed on a
concurrent voir dire given the significant overlap in the evidence likely to be called.103
This said, the respective evidentiary burdens and legal frameworks must remain
separate:
It does not appear to me that in Voss, supra, Tarnopolsky, J.A. for the
majority, laid down, or intended to lay down, any per se rule of separate
hearings. To be certain, he insisted that voluntariness and s. 10(b) Charter
issues are discrete bases of exclusion. Each requires separate decision and
involves different principles. The focus of the inquiry is different in each case.
There ought be no melange of the two. It is not said, however, nor does it
follow, that the only procedural device effectual to ensure such separation is
the discrete evidentiary hearing. I am comforted in my conclusion by the
positions taken by all counsel, both prosecuting and defending, none of
whom seemed to suggest that there was any per se rule of separate hearing
mandated by Voss.104
...
However, these two inquiries have different tests and burdens. For the
question concerning the statement's voluntariness, the prosecution has the
burden to prove the defendant make the statement voluntarily to the police
beyond a reasonable doubt. If the statement is not voluntary then it is
automatically excluded. On the other hand, for the statement to be excluded
based on an infringement of his right to counsel under s. 10(b) of the Charter,
the defendant has to first prove there was an infringement of the right on a
balance of probabilities before the court can decide whether it should be
excluded under s. 24(2) of the Charter, where its admission would bring the
administration of justice into disrepute.105
103
Mark J. Sheardown, “Make Mine A Double”: Blended Voir Dires, Practice and Procedure.” (Paper for Continuing Legal Education, March 2006) at 6.3.5. 104
R. v. Clancey, [1992] O.J. No. 3967 at para. 41 [cited to QL]. 105
R. v. Milligan, 2008 ONCJ 299, [2008] O.J. No. 2477 at para. 146 [cited to QL].
26 Should the Accused Testify?
The answer to this question will depend on how you intend to impugn the statement.
If you intend to argue that the statement was obtained in violation of s. 10(b) because
the police failed to facilitate further consultation with counsel upon either a change in
legal jeopardy or a request for the detainee to participate in a non-routine procedure,
the transcript and recording of the interview will most likely suffice. The development of
the investigation typically either tracks the progression of the interview or will be
disclosed to the detainee throughout the interview as the police reveal the evidence in
their possession. Accordingly, the point at which a detainee is faced with a change in
legal jeopardy or a request to participate in a non-routine procedure will be apparent
from a review of the interview.
This decision is more challenging in cases where the alleged section 10(b) violation is
police failure to arrange additional access to counsel notwithstanding “objectively
observable” indicia that the detainee may not have understood his or her right to remain
silent or became confused about his or her options. The requirement that there be
“objectively observable” indicia to trigger re-consultation with counsel seems to suggest
that the indicia would be easily discernable on review of the interview. Given, however,
that every utterance by Sinclair and McCrimmon related to a desire to re-contact
counsel was assessed in the full context of their respective interviews, it would appear
worthwhile to consider having the accused testify. To not call the detainee risks leaving
the court with only the record of the interview – which may permit multiple inferences –
as the relevant context. The detainee is obviously in the best position to know the true
interpretation and may be able to focus the court’s analysis through effective direct
examination. Likewise, only the detainee will know if the advice received from his or her
counsel was provided in a confusing or uncertain manner; if subtle comments by the
interviewing officer or other police about the counsel contacted undermined his or her
confidence in the advice received; or the if he or she later forgot the advice received.
Of course, when making this decision, it is imperative to also consider how the
detainee’s evidence on the voir dire could be used at trial if a section 10(b) breach is not
established, or a breach is established but the statement survives a section 24(2)
analysis.
Context is Critical
The decisions in Sinclair, McCrimmon, and Willier, reinforce the importance of
appreciating the full context of an accused’s statement beginning with the point of arrest
or detention. Given the comments made about the seemingly obvious nature of a
change in legal jeopardy or a non-routine procedure made above, this section of the
paper focuses on points to consider in situations where it is alleged that s. 10(b) was
violated by police failure to re-facilitate contact with counsel despite objective indicia
that the detainee may not have understood the legal advice received:
27 1. Did the police ask the detainee if he or she was satisfied with his or her access to
counsel?
 If so, how long did it take the detainee to answer?
 If so, what was the detainee’s answer? Did it involve a recitation or
paraphrasing of the advice received?
o If the answer involved a paraphrasing of the advice received, was it
correct?
o If the answer involved a paraphrasing of the advice received, did the
detainee struggle in his or her paraphrasing?
 If so, was the detainee’s answer unequivocal?
 If the detainee was dissatisfied with the advice or provided an equivocal
answer, did the police conduct any follow-up?
2. Did the police ask the detainee if he or she understood the advice received from
the counsel contacted?
 If so, how long did it take for the detainee to answer?
 If so, what was the detainee’s answer? Did it involve a recitation or
paraphrasing of the advice received?
o If the answer involved a paraphrasing of the advice received, was it
correct?
o If the answer involved a paraphrasing of the advice received, did the
detainee struggle in his or her paraphrasing?
 If so, was the detainee’s answer unequivocal?
 If the detainee provided an equivocal answer or said he or she did not
understand the advice, did the police conduct any follow-up?
3. If the detainee expressed a desire to be put back in touch with his or her counsel,
when in the interview was this desire expressed?
 Was the request for re-consultation made after he or she clearly displayed an
understanding of his or her right to silence (i.e. explaining the right to the
officer or selecting certain questions to answer)?
 Did the request follow a long period of time in which topics unrelated to the
investigation were discussed such that it is possible that the detainee had
forgotten or became confused about his or her choices?
 Had the detainee been engaging in stall tactics throughout the interview (i.e.
excessive bathroom, smoke or food breaks)? If so, was the request to reconsult counsel made in an effort to shift the focus of the interview?
4. If the detainee expressed a desire to re-consult counsel, did he or she say why
he or she wished to do so?
 Was the detainee actually confused about his or her choice to speak or was
he or she morally conflicted?
 Was the detainee simply expressing concern about the reaction of his or her
lawyer to his or her decision to co-operate with the police?
5. At any time in the interview, did the police confirm the detainee’s right to silence?
28 6. At any time in the interview, did the police misinform the detainee or his or her
right to silence, or appear to offer the detainee legal advice?
7. At any time in the interview, did the police facilitate additional access to counsel?
8. At any time in the interview, did the detainee ask if he or she still had the right to
remain silent?
Obviously, the audio-video recording of the custodial interview is an exceptionally useful
tool in preparing for statement voir dires. The flow of the interview is more discernable
on video than on a transcript, and the body language and facial expressions displayed
by the detainee and interviewing officer(s) may provide additional insight into the
significance of particular statements made by the detainee or police officer(s).
29