Early into any law enforcement training (career), recruits, later officers, are quickly shown the significance of Section 10 of the Charter of Rights and Freedoms. While s. 10(a) requires an officer to inform a detainee of the reasons for the detention (or arrest) “promptly,” which has been held to mean “immediately,” some delay may be justified on the basis of concerns for officer or public safety. Section 10(b) of the Charter has both an informational and an implementational component. The officer must inform detainees of their right to counsel and where the right is invoked, must provide detainees with a reasonable opportunity to exercise the right. We must comply with both duties “without delay”. The latter is the focus of this post, as recently debated in R. v. Dussault 2022 SCC 16.
While generally, an officer could discharge their implementational duty under s. 10(b) by facilitating a single consultation at the time of detention or shortly thereafter, there are exceptions. Recall R. v. Sinclair 2010 SCC 35:
“the right to counsel is essentially a one-time matter with few recognized exceptions” (para. 64); “it is helpful to indicate situations in which it appears clear that a second consultation with counsel is so required” (para. 49); (a) a new and non-routine procedure which involves the detainee such as participation in a lineup or submitting to a polygraph (para. 50); (b) a change in jeopardy (para. 51); (c) a reason to question the detainee’s understanding of their Charter s. 10(b) right (para. 52)”
In Dussault, the SCC found that where police conduct has the effect of undermining the legal advice given to a detainee, whether intentional or not, and where it was objectively observable that it had occurred, the right to a second consultation will arise. By way of background, Dussault was arrested on charges of murder and arson. At the police station, he spoke with a lawyer on the phone, who explained the charges and his right to remain silent. The lawyer was left with the impression that the accused was not processing or understanding his advice. He offered to come to the station to meet in person, and Dussault accepted. The lawyer then spoke with a police officer, informed him that he was coming to the police station and asked that the investigation be suspended. The police officer responded that this would be no problem or no trouble. The lawyer spoke again with Dussault. He confirmed that he was coming to the police station to meet with him and he explained that, in the interim, he would be placed in a cell. The lawyer also told him not to speak to anyone. Subsequently, during a conversation between the police officer and the lead investigators on the file, it was decided that the lawyer would not be permitted to meet with Dussault. The police officer phoned the lawyer and informed him of this decision. The lawyer nevertheless came to the police station, but was not permitted to meet with Dussault. The police officer later went to Dussault’s cell and told him that another officer was ready to meet with him. Dussault asked whether his lawyer had arrived, to which the police officer responded that the lawyer was not at the police station. Dussault was then subjected to an interrogation, during which he made an incriminating statement.
The trial judge admitted the incriminating statement into evidence, finding the phone call was a complete consultation for the purposes of s. 10(b) of the Charter. The Court of Appeal concluded Dussault’s phone call with the lawyer did not constitute a complete consultation for the purposes of s. 10(b) of the Charter and that his right to effective assistance of counsel was breached.
The SCC said that undermining is not limited to intentional belittling of defence counsel. Police conduct can unintentionally undermine the legal advice provided to a detainee. Where the police conduct has the effect of undermining the legal advice given to a detainee, and where it is objectively observable that this has occurred, the right to a second consultation arises. There is no need to prove that the police conduct was intended to have this effect. The purpose of s. 10(b) will be frustrated by police conduct that causes the detainee to doubt the legal correctness of the advice they have received or the trustworthiness of the lawyer who provided it.
In the present case, two separate acts of the police officer combined to have the effect of undermining the legal advice provided to the accused. First, when the lawyer said that he was coming to the police station to meet with the accused and asked that the investigation be suspended, the police officer responded that this would be no problem or no trouble. In reasonable reliance on these words, the lawyer advised the accused that he was coming to the police station to meet with him and that, in the interim, he would be placed in a cell. The police officer’s words therefore had the effect, albeit indirect, of causing the accused to believe that an in-person meeting would take place. In refusing to permit the lawyer to meet with the accused, the police effectively falsified an important premise of the lawyer’s advice — i.e., that the accused would be placed in a cell until the lawyer arrived. Second, the police officer misled the accused into believing that his lawyer had failed to come to the station for their in-person consultation. During the interrogation, the accused repeatedly expressed that his lawyer had told him he would be there; he stated his belief that his lawyer had never actually arrived; he openly questioned why his lawyer had given him the advice that he had given; and he implied that his lawyer’s failure to show up had left him feeling alone. When these statements are taken in their totality and in light of all the relevant circumstances, it was clear to the SCC that there were objectively observable indicators that the legal advice given to the accused had been undermined.
Also worthy of a reminder, the majority in Sinclair did not expand on the type of police conduct that could “undermine the legal advice that the detainee has received” and thereby give rise to a renewed right to consult counsel. What Dussault reminded us of is in this context, care must be taken in defining the term “undermine”. It is clear, for instance, that if this term is defined too broadly, it would prevent police from attempting in any way to convince a detainee to act contrary to their lawyer’s advice: see, e.g., R. v. Edmondson, 2005 SKCA 51, 257 Sask. R. 270, at para. 37. If this were so, police would effectively be required to cease questioning any detainee who said “my lawyer told me not to talk”. That is not the law in Canada: R. v. Singh, 2007 SCC 48,  3 S.C.R. 405.