I WANT MY LAWYER : RIGHT TO COUNSEL DURING A CUSTODIAL INTERVIEW

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1 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, 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

2 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. McCrimmon 3 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 to cooperate with a police investigation is free and informed. 5 The predominant 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] SCC 35, 2010 CarswellBC 2664 [Sinclair cited to WLeC] SCC 36, 2010 CarswellBC 2665 [McCrimmon cited to WLeC] 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

3 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 Debot, ibid.; Suberu, ibid. 10 Suberu, ibid. at para. 42; Debot, ibid. at paras. 49, 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 [Brydges cited to WLeC]. 14 Bartle, supra note 11 at para 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, R. v. Jackson (1993), 86 C.C.C. (3d) 233, 1993 CarswellOnt 130 at para. 20 [Jackson cited to WLeC]. 3

4 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 Ibid. at para Ibid. 24 See e.g., R. v. Nelson, 2010 ABCA

5 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 See e.g., R. v. Smith, 2011 BCSC 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 (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 Mastin, ibid. at para R. v. Vukasovic, 2010 ONCJ 661 at paras Manninen, supra note 5 at para. 23; LeClair, supra note 26 at para Manninen, ibid. at para. 24; LeClair, ibid. at para. 20, Burlingham, supra note 12 at para. 13, Prosper, supra note 19 at para

6 (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

7 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 voic 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

8 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. Singh 33 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 voic 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 SCC 48, 2007 CarswellBC 2588 [Singh cited to WLeC] BCCA

9 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 ABCA 126, [2008] A.J. No. 327 at para. 65 [cited to QL]. 36 Ibid. at para

10 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 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 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 Ibid. at para Ibid. at para Ibid. at para Ibid. at paras Ibid. at paras

11 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 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 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 Respondent s factum (Sinclair) at paras Ibid. at paras. 62 5, Ibid. at para Ibid. at paras Ibid. at para

12 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

13 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, McCrimmon, supra note 3 at para Sinclair, supra note 2 at para

14 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 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 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 R. v. Wu, 2010 ABCA 337, [2010] A.J. No at paras [Wu cited WLeC]. 56 Sinclair, supra note 2 at para Ibid. at para Ibid. at para Ibid. at para

15 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 See e.g., R. v. Somogyi, 2010 ONSC R. v. McCrimmon, supra note 3 at para Sinclair, supra note 2 at para. 49; McCrimmon, ibid. 64 Sinclair, ibid. at para Sinclair, ibid. at paras. 22 5, McCrimmon, supra note 3 at para Sinclair, ibid. at paras. 82,

16 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 Sinclair, ibid. at para Sinclair, ibid. at para. 105, McCrimmon, supra note 3 at para Sinclair, ibid. at para. 106, McCrimmon, ibid. 16

17 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 Sinclair, ibid. at para McCrimmon, supra note 3 at paras [1990] 2 S.C.R. 151, 1990 CarswellYukon 7 at paras , 104 [Hebert cited to WLeC]. 75 Ibid. at para

18 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, Ibid. at para Ibid. at paras. 43, Ibid. at para

19 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 Sinclair, supra note 2 at para. 65. Also see McCrimmon, supra note 3 at para SCC 38, 2000 CarswellNS 257 at para. 60 [cited to WLeC]. 19