The Quality of Lawyer Consultation: What constitutes enough legal advice? Part 1: R. v. Osmond (2007) BCCA 1 (the short version) by Gino Arcaro M.Ed., B.Sc. I. Overview This is the first part of a research series that reviews complex, contradicting right to counsel procedures centered on the British Columbia Court of Appeal decision in R. v. Osmond (2007). This paper includes a brief version of the actual case. The complete version of the Osmond decision will be explained in Part 2. Although the Osmond decision is binding only in British Columbia, it is persuasive in other provinces. The 5 key points of the case are: A 13 year-old girl was beaten to death. DNA evidence linked the accused to the crime scene. The accused was arrested and informed of his right to counsel. Legal Aid was contacted and a Legal Aid lawyer gave him advice in less than 5 minutes. The accused confessed. The BCCA excluded the confession because: the Legal Aid advice was insufficient, constituting a sec. 10(b) Charter violation The Osmond decision relates to a continuum of cases explained in this article. II. Commentary Keep in mind when you read this series that: i. the accused person confessed to beating a 13-year old girl to death. ii. DNA evidence linked the accused person to the crime scene. iii. the police followed the right to counsel procedures that existed at the time. Regardless, you will realize, as you read, that the victim is forgotten. The fact that the accused confessed to beating a 13-year old girl, the focus of the decision is on the inadequate quality of legal advice given to the suspect. The legal consultation took less than 5 minutes to communicate. Somehow, the police were expected to know that the advice was inadequate even though the lawyer-client communication is privileged. This decision is an outrage. The decision cannot be defended intellectually and morally for three reasons: i. courts make up rules after the fact, not before. In this case, the police did what they were supposed to do. They informed the accused of the Brydges component of the right to counsel and they allowed the suspect to exercise the Brydges component. However, the British Columbia Court of Appeal 1 R. v. Osmond (2007) B.C.C.A. 470 (CanLII).
said the quality of the Legal Aid advice was not up to par because the accused was unsophisticated. If the police are supposed to monitor the quality of legal consultation given to a suspect, then Parliament should clearly legislate those rules and actually print them into section 10(b) Charter. A clear rulebook is needed before an expected performance. The operative word is clear. ii. The inconsistent application of sec. 24(2) Charter has reached a critical stage. In Canada, the potential admissibility of evidence is completely unpredictable because of the extremely diverse methodology used in applying sec. 24(2) Charter. iii. The Osmond decision creates a changing multi-tiered set of police obligations regarding how to inform and exercise the right to counsel procedures. Police obligations vary according to what the suspect knows and what the suspect has done. The BCCA expects the right to counsel procedure to be dependent on the combined effect of: (a) the accused person s level of sophistication (b) the actual quality of the legal advice given to the accused, and (c) the severity of the offence. This expectation has absolutely no air of reality. Expecting the police to determine the quality of the legal advice given to a suspect is absurd because it creates an unrealistic legal advice disclosure dual-obligation: i) First, the suspect would have to disclose the legal advice to the police. Assuming this were to happen, by what standard would the police judge the advice adequate or not? There is no concrete definition of adequate legal advice in law. ii) Secondly, what if the suspect refuses to disclose the privileged communication? How exactly should the police determine the actual content? Are they obliged to question the suspect to extract the information and also evaluate the suspect s level of sophistication? Is there a sophistication test that police can use on a suspect? III. The Continuum The Osmond decision fits within the following continuum of 10 case law rules: R. v. Black (1989) SCC 2 Rule #1:. it is improper for a court to speculate about the type of legal advice which would have been given had the accused actually succeeded in contacting counsel after the charge was changed. Translation: A judge cannot conclude about: a. the quality of legal advice b. what might have been advised instead of what was advised Judges have to stick to what was, not what could have been. 2 R. v. Black (1989) 50 C.C.C. (3d) 1 (S.C.C.)
R. v. Ekman (2000) BCCA 3 & R. v. Griffin (2005) Q.C.C.S. 4 (Rule #2 & #3): Rule #2: After an arrested person has consulted with a lawyer and invokes the right to silence, the police are allowed to: (i) question him, and (ii) persuade him to change his mind and to confess. Translation: After a lawyer advises an arrested person to not talk to the police, the police may still question the arrested person and try to change his mind. A lawyer s advice to a client to remain silent does not prohibit an interrogation. Rule #3: An accused does not have an absolute right to the presence of counsel at a police interrogation. However, an accused does have the right to choose not to speak to the police in the absence of counsel. Translation: Does an adult offender have the right to have a lawyer present during a custodial interrogation? No. There are 2 types of interrogation environments; custodial interrogation, where the suspect is under arrest; non-custodial interrogation by consent the suspect is not detained. He is free to leave at any time during the interrogation. Offenders are classified by age: adult (18 years and older) and young offender (12-17 years). The right to have a lawyer present during custodial interrogation differs for young offenders. They have the right to decide whether a lawyer will be present young offenders are the decision-makers regarding the issue of a lawyer s presence. R. v. Osmond (2007) BCCA 5 : Rule #4: Inadequate legal aid advice to an unsophisticated person arrested for murder constitutes a sec. 10(b) Charter violation. In the Osmond case, this violation was severe enough to exclude the accused s confession of beating a 13 year-old girl to death. R. v. Willier (2008) ABCA 6 : (Rules #5 - #9) Rule #5: The police do not have a duty, or ability, to monitor the quality of [legal] advice received by a detained person in any particular case. Translation: The Alberta Court of Appeal disagrees with the BCCA s decision in Osmond. Rule #6: The police s responsibilities on arrest do not vary depending on the tactical abilities of, or the strategy adopted by the detained person. If a tactical maneuver by the accused (e.g., feigning no reason to consult counsel) does not work, that does not entitle him to start over and try another approach (e.g., arguing that his right to counsel has been violated). 3 R. v. Ekman (2000) 146 C.C.C. (3d) 346 (B.C.C.A.). 4 R. v. Griffin (2005) Q C C.S. 5628 (CanLII). 5 Supra note. 1. 6 R. v. Willier (2008) A.B.C.A. 126 (CanLII).
Translation: a. The Alberta Court of Appeal again disagrees with the BCCA s decision in Osmond. b. the police obligation regarding the right to counsel procedure are the same in every case. They do not change depending on the accused s level of sophistication. Rule #7: Confessions should not be excluded because of systemic problems. Translation: Confessions should not be inadmissible if a provincial Legal Aid system does not work properly. A province s failure to have a properly working Legal Aid system should not result in the exclusion of confessions. Rule #8: Overwhelming case law says the police are entitled to outmanoeuvre an arrested person, even to the point of lying to him. Translation: Interrogation strategies are broad and wide-ranging, not narrow and restricted. Rule #9: confession. An interrogation that is not a fair contest does not exclude a Translation: It is not unlawful for the police to be smarter than the accused. If the interrogation is one-sided in favour of the police, the lack of intellectual competition by the accused does not exclude a confession. R. v. Sinclair (2008) BCCA 7 : Rule #10: If an arrested person calls Legal Aid and receives advice during a four minute consultation, there must be evidence proving that Legal Aid lawyer told the accused anything different from what another lawyer later advised. An inference, without evidence, that the accused did not get proper advice from Legal Aid will not constitute a sec. 10(b) Charter violation. An inference unsupported by any evidence that the accused would have been given different advice by another lawyer does not constitute a sec. 10(b) Charter violation. Translation: Another court disagreed with the Osmond decision. Concrete evidence is needed to prove that legal advice was insufficient. Inference alone is not enough to prove inadequate legal advice. IV. Part 1 Conclusion Part 1 summarized the 10 case law rules that relate to the issue of adequate legal advice. Part 2 will explain the full Osmond decision with respect to what constitutes adequate legal advise. Also contained in Part 2 in a literature review of case law relevant to right to silence and the right to legal advise, beginning with Hebert (1990). 7 R. v. Sinclair (2008) B.C.C.A. 127 (CanLII).
Questions and comments are invited. The author, Gino Arcaro, may be contacted electronically at xfitness@bellnet.ca.