The case of R. v. Knoblauch 2018 SKCA 15 addressed the question of whether a detained person’s right to legal counsel, as guaranteed by s. 10(b) of the Canadian Charter of Rights and Freedoms [Charter], is breached by a police officer who, after properly informing the detainee of his or her right to counsel, fails to ask whether the detainee wishes to consult with a lawyer.
The arresting officer advised Knoblauch that he was under arrest for impaired driving. The officer then advised Knoblauch of his section 10(b) Charter right to counsel. When asked if he understood his right to counsel, Knoblauch said “Yep, yes”. The officer did not go on to ask Knoblauch if he wanted to speak to a lawyer while he was in the back of the patrol car. The evidence revealed that the officer was distracted by a number of police radio transmissions occurring at this time. Two minutes later, the officer made a breath test demand of Knoblauch and also provided a police caution to him. Knoblauch indicated that he understood the breath demand and the police caution.
The officer’s report indicated that at roadside, “the accused understood all warnings and declined to call a lawyer“. The trial judge found the patrol car video clearly showed that at roadside Knoblauch had not been asked if he wanted to call a lawyer and had not declined to do so.
On cross-examination, the officer admitted his notes read that at another time, he had “again” asked Knoblauch if he wanted to call a lawyer. The trial judge determined that statement was inaccurate as the officer had not made any prior inquiry. The trial judge concluded the two inaccuracies identified by him affected the credibility and reliability of the officer’s evidence and, as such, the trial judge found “that at no time did [the officer] ask Knoblauch if he wanted to call a lawyer”.
So, does a police officer, who has complied with the informational component of s. 10(b) of the Charter (duty to advise), have a duty to ask a detainee whether he or she wants to consult with a lawyer? At para 25:
It is now well settled that s. 10(b) imposes certain duties on police officers when arresting or detaining individuals, namely:
(a) to inform a detainee, without delay, of his or her right to retain and instruct counsel;
(b) if a detainee has indicated a desire for counsel, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and
(c) to refrain from questioning or otherwise attempting to elicit evidence from a detainee until he or she has had a reasonable opportunity to consult and retain counsel (except in urgent and dangerous circumstances).
The existing jurisprudence states that the first duty identified has been described as an informational one, while the second and third duties are implementational in nature and “are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel“. In R. v. Brydges , the Supreme Court of Canada provided guidance on what is required by police officers in fulfilling their informational duty. The majority of the Court held that in addition to advising detainees of their right to retain and instruct counsel without delay, police officers must also advise detainees of the existence and availability of Legal Aid and duty counsel.
Police services provide their officers with caution cards, which are used by the officers to inform detainees of their s. 10(b) Charter right. Some such cards include a question as to whether the detainee wishes to consult counsel; others do not.
The SKCA in this case said there is no magic to the incantation of the words on such cards. What is important is not the words used but, rather, whether, in the circumstances as a whole, a detainee has been properly informed of his or her right to counsel. At para. 51:
In summary, both the trial judge and the appeal judge concluded [the officer] had properly fulfilled his informational duty by informing Mr. Knoblauch of his right to counsel as described by the Supreme Court of Canada in Brydges and Bartle. In accordance with judicial authority, no further duties were imposed on [the officer] with respect to Mr. Knoblauch’s s. 10(b) right to counsel, unless and until Mr. Knoblauch invoked that right.
Simply put, the SKCA concluded there is no duty on a police officer, who has complied with the informational component of a detainee’s s. 10(b) right to counsel, to inquire whether a detainee wishes to exercise that right.
Note: please follow the issued cards provided to you by your agency to inform detainees of their s. 10(b) Charter rights. If your card includes a question as to whether the detainee wishes to consult counsel, continue to do so unless or until those changes are made within your jurisdiction by the appropriate authorities. This decision may be binding in Saskatchewan, but it is not an SCC decision [yet], so adhere to binding decisions and policies in your jurisdiction as the case may be.