We’ve all seen it in the movies: an individual is arrested, and the police recite their rights. Usually, it goes something like this:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.” 

In Canada, there is a similar requirement whenever police arrest or detain someone. Our rights are enshrined in the Canadian Charter of Rights and Freedoms. Under the Charter, every person needs to be made aware of why they are being arrested or investigated. They also must be reminded of their right to speak to a lawyer.

The right to counsel in the Charter

The right to counsel is found in section 10(b) of the Charter. In explaining this right on arrest, police also must inform the arrestee or detainee of the right to free legal advice through Legal Aid. An arrested or detained person must be able to speak with a lawyer in private as soon as possible.

But what if the arrestee or detainee has already spoken to counsel, and wishes to do so again? Recently, in R v. Dussault, the Supreme Court of Canada considered when an accused who has spoken with counsel has a right to obtain a second consultation.

Police officers stopped the accused from meeting his lawyer in-person

The accused was charged in August 2013 on charges of murder and arson. On arrest, he was informed of his rights, including the right to counsel. The police helped fulfill this right by permitting the accused to speak to a lawyer on the phone, who was able to explain the charges against him and advised him of his right to remain silent.

The lawyer was not confident that the accused fully understood the advice. So, the lawyer arranged to go to the police station to meet the accused in person. The lawyer informed a police officer, and the police officer told him this would not be a problem. However, after getting off the phone, the police officer and lead investigators decided that the lawyer would not be allowed to meet with the accused in person after all.

The lawyer was informed of the officers’ decision but came to the police station regardless. During this time, the accused was brought to another officer for further interrogation. The accused asked where his lawyer was, and he was told that the lawyer had not arrived. The accused afterwards made an incriminating statement during the interrogation.

The phone call may not have fulfilled the right to counsel

At trial, the accused wanted to exclude the statement made in the interrogation claiming that his right to counsel had been violated. The judge held that the right to counsel had been fulfilled and that the police could reasonably have presumed he had done so after his phone call with the lawyer. He was convicted of murder but appealed his conviction on the basis that the incriminating statement should not have been included in the evidence.

In a unanimous decision, the Court of Appeal found that the accused’s phone call with the lawyer did not amount to a complete consultation within the meaning of the Charter. Accordingly, the accused’s right to counsel had been breached. The court quashed the accused’s conviction and ordered a new trial.

Police should provide opportunity for second consultations with counsel 

While the police conduct may have had the effect of undermining the legal advice that the accused’s lawyer provided in the initial telephone call, the Supreme Court of Canada ultimately disagreed with the Court of Appeal’s decision. The initial call could be considered a complete consultation on its own. Nevertheless, the nation’s top court found that the police should have provided the accused with a second opportunity to consult counsel. For this failure, there was a breach of the accused’s right to counsel.

The right to a second consultation

In expanding on the right to counsel, the Supreme Court explained that the police’s duty is two-fold. First, police must inform detainees of their right to counsel. Second, police must provide a reasonable opportunity to the detainees to exercise this right. Typically, the second duty is met when police facilitate a single consultation with a lawyer at the time of detention or shortly thereafter. Once that consultation has happened, police are allowed to begin probing for further evidence.

Of course, there are exceptions to this rule. The Supreme Court recognized that there are three instances of exceptions where an accused’s right to counsel is renewed:

  1. New procedures are introduced involving the detainee,
  2. A change in the jeopardy facing the detainee, and
  3. There is reason to believe that the first information was deficient.

When a situation falls into one of these exceptions and the evidence proving so is objectively observable, police must provide a new opportunity for the accused to consult with counsel. In producing evidence, there is no need to demonstrate that the police conduct was in bad faith.

Police were dishonest in their dealings with the accused and the lawyer

The Supreme Court ultimately found two examples where the police officer undermined the legal advice provided to the accused. First, when the police officer suggested that it was possible for the lawyer to come to the police station to meet the accused in person. The lawyer relied on the police officer’s words and assumed that the accused would be placed in a cell until his arrival. When the accused was brought out of the cell for interrogation, he was under the impression that he would be having an in-person meeting with counsel as that was the impression he was given.

The second instance when the police officer undermined the legal advice provided to the accused was during the accused’s interrogation. The accused was misled into believing that his lawyer had not gone to the police station to meet him. During the interrogation, the accused repeatedly said his lawyer was on his way. Without his lawyer, the accused was left feeling alone. On these facts, the Supreme Court found there were clear objectively observable indicators that the legal advice given to the accused had been undermined and that a second consultation had been necessary.

Contact Hicks Adams in Toronto to Protect Your Charter Rights  

If you have been arrested or detained, you have a constitutional right to speak with counsel. At Hicks Adams, our knowledgeable team of criminal defence lawyers is dedicated to protecting your constitutional and Charter rights and providing timely and strategic advice when you need it most. Contact us online or at 416-975-1700 to schedule a confidential consultation.