Paper Presented at Federation of Law Societies National Criminal Law Program, Quebec City, July, 2011, Section L.2

Author:  Mark J. Sandler

Nature of the Duty

Section 10(b) of the Charter provides that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.

The language of s. 10(b) and the existing jurisprudence tell us that s. 10(b) consists of an informationalcomponent and an implementational component.

The underlying purpose of s. 10(b) informs the content of these components. That purpose has been described as ensuring “that a suspect is able to make a choice to speak to the police investigators that is both free and informed.” (R. v. Sinclair, [2010] 2 S.C.R. 310) Section 10(b) is designed to effect that purpose “by ensuring that detainees have an opportunity to be informed of their rights and obligations under the law and to obtain advice on how to exercise those rights and perform those obligations.” (R. v. Willier, [2010] 2 S.C.R. 429)

Detainees are deprived of their liberty and within the control of the state. They are accordingly vulnerable to the exercise of the state’s power and in legal jeopardy. Section 10(b) is intended to provide them with “an opportunity to mitigate this legal disadvantage.” (R. v. Willier, supra)

It follows that s. 10(b) imposes certain duties upon state authorities:

1. To inform the detainee of his/her right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel;
2. If the detainee has indicated a desire to exercise this right, to provide him/her with a reasonable opportunity to exercise the right (except in urgent[1]or dangerous circumstances); and
3. To refrain from eliciting evidence from the detainee until he/she has had that reasonable opportunity (again, except in cases of urgency or danger).

(R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Willer, supra)

The first duty is informational. It is addressed in a companion paper. The second and third duties are implementional. What is common to all three duties is that they are triggered immediately upon arrest or detention, since the underlying purpose that animates s. 10(b) is engaged once an arrest or detention has taken place. (R. v. Suberu, [2009] 2 S.C.R. 460)

That being said, the implementational duties are not triggered until detainees[2]indicate a desire to exercise their right to counsel. Absent an articulated desire to exercise their right to counsel, the police have no duty to either provide the detainees with a reasonable opportunity to exercise the right or refrain from eliciting evidence from the detainees until they have had a reasonable opportunity to exercise the right.

Privacy

The right to consult counsel is to be afforded to a detainee, so far as circumstances permit, without delay. Inherent in that right is that the consultation take place in private. Privacy need not be specifically requested by the detainee. Proof that a detainee could consult counsel in private only by whispering or by some other unusual device does not meet the requirement of privacy. A detainee who believes that his/her conversation will be overheard by the police will be substantially prejudiced in the exercise of the right to counsel. Not every detainee who has such a belief—however unreasonable – can assert a s. 10(b) infringement. Where a detainee would reasonably believe that his/her consultation with counsel could be overheard by police, his/her right to privacy has been infringed unless it can be shown that he/she was in fact able to retain and instruct counsel privately. (R. v. Playford (1987), 40 C.C.C. (3d) 142 (Ont.C.A.))

In Playford, supra, the Ontario Court of Appeal stated that a concession by the appellant, in hindsight, that he could possibly have had a private conversation fails to meet the test for privacy under s. 10(b). It fails to demonstrate that he could have had privacy or that he did not reasonably believe that his consultation was not private. The Crown submitted that the police did the best they could to protect the appellant’s rights given the physical limitations of the small detachment office where he was detained. Nonetheless, the Court of Appeal concluded that “if the physical layout was such that it was not possible for the appellant to have a private telephone conversation while preserving police security, no questioning of the appellant should have taken place until he had been taken to a place where he could and did have the opportunity to have privacy in retaining and instructing counsel. On the other hand if it was possible for the appellant to have privacy for his telephone call at the detachment office, as the trial judge found, the police should have afforded such privacy to him.”

In R. v. Luu (2006), 207 C.C.C. (3d) 175 (B.C.C.A); leave to appeal refused (2006), 210 C.C.C. (3d) vi (S.C.C.), the British Columbia Court of Appeal observed that once an arrest scene is under control, there is no reason not to allow the detainee to telephone a lawyer. As Lamer C.J, speaking for the Supreme Court of Canada noted in R. v. Manninen, [1987] 1 S.C.R. 1233,  where a telephone is available, it is the duty of the police to offer its use to facilitate contact with counsel, at least in the absence of urgency. In Luu, there was no urgency and there were available telephones where the appellants were arrested. Interestingly, the Court of Appeal concluded that the police investigator’s belief that he could not offer the appellants privacy is no answer to his failure to do his duty.  The Court noted that In R. v. Bui,2005 BCCA 482 (CanLII),  it had upheld a trial judge’s decision that the failure to give the appellants, in that case, the option of contacting counsel without privacy amounted to an infringement of their s. 10(b) rights.

Eliciting of Evidence and Undermining the Solicitor-Client Relationship

The eliciting of evidence from detainees by the police extends beyond questioning, and includes compelling the detainee to make a decision or participate in a process that could ultimately adversely affect that detainee’s trial defence. (R. v. Ross, [1989] 1 S.C.R. 3).  Participation in a police line-up provides one obvious example. Using a trick or pretence to elicit evidence from detainees (such as having them fill out unneeded administrative forms or inducing conversation to enable voice identification) does not immunize the police from a finding that they have breached their duty to hold off. (R. v. Lieu (2003), 175 C.C.C. (3d) 290 (Alta.C.A.))

In R. v. Burlingham, [1995] 2 S.C.R. 206, the Court found a s.10(b) infringement where the police not only refused to hold off their questioning pending the opportunity to exercise the right to counsel, but belittled the detainee’s lawyer and pressured the detainee to accept a “deal” prior to legal consultation. Even where the police purportedly hold off, but make comments to the detainee which belittle his/her chosen lawyer (so as to undermine the detainee’s confidence in, or relationship with, that lawyer), any waiver of the right to counsel that follows would be suspect. (R. v. Edmondson (2005), 196 C.C.C. (3d) 164 (Sask.C.A.); leave to appeal refused (2005), 200 C.C.C. (3d) vi (S.C.C.). I return to waivers in more detail below.

Reasonable Diligence in the Exercise of the Right

The detainees’ rights are limited in an important way. Detainees must be reasonably diligent in attempting to contact counsel. If they are not reasonably diligent, then the duty placed upon the police to refrain from eliciting evidence from the detainees is suspended. (R. v. Tremblay, [1987] 2 S.C.R. 435; R. v. Black, [1989] 2 S.C.R. 138)

Scope of the Right to Counsel “of Choice”

One facet of the s. 10(b) guarantee is the right to counsel of choice. If detainees opt to exercise their right to counsel by speaking with a specific lawyer, the police are required to facilitate a reasonable opportunity to contact that chosen counsel prior to eliciting evidence from the detainees. If the chosen lawyer is not immediately available, detainees are entitled to refuse to speak with another lawyer and wait a reasonable time for their chosen lawyer to respond. If the chosen lawyer is unavailable within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer; otherwise, the police are no longer obligated to hold off efforts to elicit evidence from them. (R. v. Willier, supra; R. v. Ross, supra).

To state the obvious, what amounts to a reasonable opportunity to contact chosen counsel; what amounts to a reasonable amount of time to wait for a lawyer of choice to respond or more generally, what amounts to reasonable diligence in the exercise of the right to counsel depends on the totality of the circumstances or, put another way, the context facing a detainee. Factors include the seriousness of the charge, the urgency of the investigation, any explanation for the unavailability of the lawyer of choice and the prospects of reaching that lawyer in a timely way. The scope of the right to counsel of choice is elaborated upon in the trilogy of recent Supreme Court of Canada cases discussed below.

The Interplay between the Components of s. 10(b)

There is an obvious interplay between the informational and implementational components of the right to counsel. First, fulfillment by the police of their informational duty may bring about the detainee’s expressed desire to speak with counsel – hence triggering the implementational duty. Second, when detainees are diligent but unsuccessful in contacting a lawyer, and then change their minds and decide not to further pursue a consultation, the police must explicitly inform the detainees of their right to a reasonable opportunity to contact counsel and of the police obligation to hold off in seeking to elicit evidence from the detainees until then. This additional informational component (characterized as the duty to provide a “Prosper” warning) is designed to ensure that detainees are under no misconception as to their s. 10(b) rights, and that any waiver of the right to counsel is fully informed. Of course, a detainee’s response to a “Prosper” warning will inform the nature and extent of what the police must then do or refrain from doing to ensure compliance with their implementational duty. For example, a fully informed waiver will suspend the holding off period. On the other hand, a request by a reasonably diligent detainee to now speak to duty counsel or another lawyer will generally require the police to take further steps to facilitate that access. (R. v. Prosper, supra)

The Trilogy of S.C.C. Cases on the Implementational Duties

In 2010, a trilogy of decisions by the Supreme Court of Canada applied these principles to individual fact situations, and in so doing, elaborated upon the nature and scope of the implementational duties.

In R. v. Willier, supra, the accused was arrested for murder, and informed of his right to counsel. The police facilitated a brief telephone conversation with duty counsel. The accused was later offered another opportunity to speak to counsel, but was unsuccessful in contacting a specific lawyer, leaving a message on that lawyer’s answering machine. When the police informed the accused that the specific lawyer was unlikely to call back before his office reopened the next day, and reminded him that duty counsel remained immediately available, the accused chose to speak to duty counsel a second time. The accused expressed satisfaction with the legal advice provided. The police advised the accused that they would proceed with the interview, but that the accused would be free at any time during the interview to stop and call a lawyer. In the investigative interview that followed, the accused never made such a request.

The trial judge found that the accused’s s. 10(b) rights had been infringed and excluded the statement he made during the investigative interview. The trial judge found that the police were required to give the accused a Prosper warning after the accused had unsuccessfully attempted to contact his preferred lawyer and before he spoke to duty counsel; that the police had improperly discouraged the accused from waiting to hear from his own lawyer, instead directing him to duty counsel, and that the two brief consultations (three minutes, and one minute respectively) with duty counsel did not amount to a meaningful exercise of the right to counsel given their brevity. In a majority decision, the Alberta Court of Appeal found no Charter infringement. The Supreme Court of Canada unanimously dismissed the accused’s appeal, although three different sets of reasons were given. McLachlin C.J. and Charron J., speaking for five members of the Court concluded as follows:

1.  Section 10(b) does not mandate the extension of a Prosper-type warning to circumstances where detainees are unsuccessful in contacting their counsel of choice, and opt to contact another. The warning is only required where a detainee is diligent but unsuccessful in contacting a lawyer and subsequently declines any opportunity to consult with counsel. The additional warning ensures that any choice to forego s. 10(b) protections in their entirety is fully informed.
2. The police did not interfere with the accused’s right to a reasonable opportunity to consult with counsel of choice by simply reminding him of the immediate availability of duty counsel after his unsuccessful attempt to contact his preferred lawyer. It was significant that the police did not tell the accused that he could not wait to hear back from his preferred lawyer or that duty counsel was his only recourse. Simply put, the accused was properly presented with another way (duty counsel) in which he could obtain legal advice, an option he voluntarily chose to exercise.
3. The trial judge’s finding that the accused’s consultations with duty counsel (inferred from their brevity) were inadequate and thus were insufficient to suspend the police duty to hold off questioning, incorrectly suggests that the police must ensure that a detainee’s legal advice meets a particular qualitative standard before they are entitled to commence with an investigative interview. Once police afford a detainee a reasonable opportunity to contact counsel and facilitate that contact, they are not required to monitor the quality of the advice – indeed, such a requirement would be incompatible with the privileged nature of the solicitor-client relationship. This conclusion comes with an important caveat: the police may assume that the detainee is satisfied with the exercised right to counsel and therefore, that they are entitled to commence an investigative interview unless the detainee indicates, diligently and reasonably, that the advice received is inadequate.  Of course, the expressed satisfaction by this accused (prior to being questioned) with the legal advice he had received made this caveat inapplicable.

The importance attributed to this accused’s expressed satisfaction with the legal advice he had received reinforces the point that s. 10(b) imposes duties on the police when faced with certain circumstances known to them. Section 10(b) does not permit a detainee to simply internalize any dissatisfaction, and then claim a Charter infringement. The fact that the accused was also offered an open-ended invitation to contact counsel at any time during the interview (which the accused did not avail himself of) also contributed to the Court’s conclusion that the brief interval between the accused’s attempt to contact his preferred lawyer and the start of the interview did not deprive him of a reasonable opportunity to contact a lawyer of choice. That being said, as we will see below, if the accused has been given a reasonable opportunity to contact counsel (and has done so), repeated requests to again speak to counsel during the interview will usually not generate any additional duty on the police to cease questioning and facilitate such further contact with a lawyer.

In R. v. Sinclair, [2010] 2 S.C.R. 310, the accused was arrested for murder, advised of his right to counsel, and twice thereafter spoke by telephone with his chosen lawyer. He was then interviewed by the police for five hours. During the interview, the accused stated a number of times that he had nothing to say on matters touching the investigation, and that he wished to speak to his lawyer again. The police confirmed that he had the right to choose whether to talk or not, but refused to allow him to again consult with his lawyer. The police also advised him that he did not have the right to have his lawyer present during the questioning. At one point, the police also indicated that the accused’s right to counsel had already been satisfied by his earlier telephone calls. The questioning ultimately yielded inculpatory comments and certain derivative evidence. The trial judge found that all statements were voluntary, and that the police had not infringed the accused’s s. 10(b) rights. The Court of Appeal agreed. McLachlin C.J. and Charron J., again speaking for five members of the Court, concluded that the alleged s. 10(b) Charter infringement had not been made out. In doing so, the Court’s majority held as follows:

1. Section 10(b) does not mandate the presence of defence counsel throughout a custodial interrogation.
2. Section 10(b) should be interpreted in a way that fully respects its purpose of supporting a detainee’s s. 7 right to choose whether or not to cooperate with the police investigation. In most cases, this purpose is accomplished by affording a detainee a single consultation with a lawyer. This consultation at the time of detention or shortly thereafter gives the detainee the information needed to make a meaningful choice as to whether to cooperate with the investigation or decline to do so.
3. However, where a detainee has already received legal advice, the implementational duty on the police under s. 10(b) includes an obligation to provide the detainee with a reasonably opportunity to consult a lawyer again where new or newly revealed circumstances make this necessary to fulfill the purpose of s. 10(b). Simply put, the initial advice may no longer be adequate given the new or newly revealed circumstances.
4. There are clear situations where the opportunity for a second consultation with a lawyer is constitutionally required, although the categories identifying such situations are not closed. The already identified categories are these:
5. The police wish the detainee to participate in non-routine procedures, like participating in a line-up or submitting to a polygraph. These do not generally fall within the expectation of the advising lawyer at the time of the initial consultation. Accordingly, further advice from a lawyer may be necessary to enable a detainee to make a meaningful choice about cooperating.
6. The investigation takes a new and more serious turn as events unfold, such that the original advice may no longer be adequate to address the situation the detainee now faces. (Of course, this situation may also trigger a renewed duty of the police under s. 10(a) and the informational component of s. 10(b).)

Where events indicate that a detainee who previously waived his right to counsel may not have understood that right, the police should reiterate the right to counsel, and afford the detainee a further opportunity to consult a lawyer.

1. Where the police undermine the legal advice that the detainee has received, this may have the effect of distorting or nullifying it. In order to counteract this effect, the police may have to give the detainee a further right to consult counsel. (This flows from the same jurisprudence – earlier cited – confirming that a waiver of the right to counsel, after police have undermined the solicitor-client relationship, may vitiate that waiver.)
2. Again, the detainee cannot internalize his confusion or need for help, and then later assert that the police violated his/her s. 10(b) rights. There must be objective indicators that renewed legal consultation was required to permit the detainee to make a meaningful choice as to whether or not to cooperate with the police.

The Court’s majority rejected Binnie J.’s expansion of the category of cases requiring a second opportunity to consult a lawyer so as to include all situations where (i) the detainee’s request to consult is bona fide (rather than designed to delay or distract) and (ii) the request is reasonably justified by the objective circumstances that were or ought to have been apparent to the police during the custodial interrogation. Binnie J. sets out a non-exhaustive list of factors which may provide the reasonable basis for a further consultation. In the majority’s view, the test articulated by Binnie J., in dissent, is vague, impractical and unnecessary, and likely to benefit the sophisticated rather than the vulnerable detainee. In the majority’s view, the better approach is to continue to deal with claims of subjective incapacity or intimidation under the confessions/voluntariness rule.

The majority noted that the Court had previously recognized that using non-existent evidence to elicit a confession risks the creation of an oppressive environment and rendering of any statement involuntary.[3]As well, persistence in continuing an interview, particularly in the face of repeated assertions by the detainee that he/she wishes to remain silent may raise “a strong argument that any subsequently obtained statement was not the product of a free will to speak to the authorities.”[4]The majority concluded that the existing jurisprudence does not yet “support the view that the common police tactic of gradually revealing (actual or fake) evidence to the detainee in order to demonstrate or exaggerate the strength of the case against him automatically triggers the right to a second consultation with a lawyer.”  As a result, the circumstances in this case, including police representations as to the strength of the evidence against the detainee, did not trigger a duty to allow a second consultation with a lawyer. [5]

LeBel and Fish JJ. (joined by Abella J.) also dissented. They went farther than Binnie J., rejecting his “intermediate” position and holding that detainees are constitutionally entitled to consult counsel, upon request, without having to persuade their interrogators that their wish to do so is valid or reasonable.

All this to say, during any initial consultation, defence counsel should not simply provide perfunctory advice about the right to silence and any preference that the detainee exercise that right and why, but also explain the techniques that may be used to overcome the detainee’s resistance. The detainee should be encouraged to articulate his continuing desire to remain silent during the interrogation. Defence counsel should personally advise the investigator, if accurate, that the detainee wishes to remain silent, so as to create an independent record of the detainee’s unequivocal position in advance of the interrogation.

The third of the trilogy of Supreme Court cases is R. v. McCrimmon, [2010] 2 S.C.R. 402. The accused was arrested for multiple assaults. Upon being informed of the reasons for his arrest and of his right to counsel, he expressed the desire to speak to a lawyer. When the police were unable to reach the lawyer requested, the accused agreed to speak to duty counsel. He did so briefly. During the interrogation that followed, he stated several times that he wanted to speak to a lawyer and have a lawyer present. His requests were denied. He eventually made inculpatory statements. His Charter challenge was rejected by the trial judge and the British Columbia Court of Appeal. The Supreme Court’s majority (similarly constituted) held that no Charter infringement had occurred. Binnie J. concurred in the result, holding that the accused’s requests were not reasonably justified by the objective circumstances. LeBel, Fish and Abella JJ. dissented on the basis that the accused’s repeated requests to speak with his lawyer were rebuffed, resulting in a s. 10(b) infringement. In my view, this case adds little to the jurisprudence previously outlined.

Waiver

Waiver must be clear and unequivocal and made with full knowledge of a detainee’s s. 10(b) rights. Put another way, the detainee must fully understand his/her s. 10(b) rights and the means by which they can be exercised and advert to those rights. It follows that the validity of any waiver is related to whether the police have fulfilled both their informational duty under s. 10(b) and their duty under s. 10(a) to inform the detainee of the reasons for his/ her arrest. Simply put, effective waiver requires proof, inter alia, that the detainee has been fully apprised of the information he/she was entitled to receive, and which informs any decision to waive his/her rights.  The standard for waiver is high, particularly where the alleged waiver is alleged to be implicit. (R. v. Bartle, [1994] 3 S.C.R. 173.)

The Court must also consider, where applicable, whether the detainee had sufficient cognitive capacity to waive his/her rights. In this regard, mental illness or incompetency, or intoxication may figure prominently (R. v. Whittle, [1994] 2 S.C.R. 914; R. v. Young (1997), 116 C.C.C. (3d) 350 (Ont.C.A.)) To be clear, incapacity need not be demonstrated in order to invalidate a waiver. As noted in Young, supra, the onus is on the Crown to establish waiver or consent on a balance of probabilities. Intoxication would lead a court to look for more, rather than less, evidence of consent (or waiver) to satisfy the test. For example, if intoxication (short of incapacity) contributes to the Crown’s inability to demonstrate that the detainee knew what rights he/she was giving up, the Crown will be unable to place any reliance on the purported waiver.

Conclusion

This paper is not intended to be an exhaustive analysis of the jurisprudence that governs the implementational component of s. 10(b) of the Charter, but rather, provides an analytic framework to consider s. 10(b) Charter claims as they arise. 10(b) or not 10(b) – that is the question. [6]