Category Archives: Section 10 Charter

Section 10(b) Charter right to counsel violated where police conduct had effect of undermining legal advice received during consultation

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, [2007] 3 S.C.R. 405.

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A “Prosper Warning” at this point in law enforcement should not be a foreign concept…

In R. v. Roberts 2019 YKTC 2, an officer responded to a complaint of a possible impaired driver. Following the traffic stop, the officer effected her arrest for impaired driving. As per legal procedure, the officer provided her with her Charter right to legal counsel. She stated that she understood her Charter right to counsel and said that she wished to speak to legal counsel. She said that she did not wish to speak to a Legal Aid lawyer; however, she did not specify a particular lawyer that she wished to speak to. She also did not say that she wished to make a call to a lawyer right away.

Roberts was taken back to the Detachment, a drive of approximately three or four minutes. There was no discussion en route in regards to Roberts speaking to legal counsel. Upon pulling into the Detachment, the officer told Roberts that he would take her to the interview room in order to allow her to contact counsel. Roberts stated that she did not want to call a lawyer anymore. The officer then directed Roberts into the interview room, where he asked Roberts again whether she wished to call a lawyer. Roberts stated for a second time that she did not want to speak to a lawyer. This was approximately one and one-half minutes after first stating that she did not wish to speak to a lawyer, and 11 or 12 minutes after initially stating that she wished to speak to a lawyer.  There was no further discussion or comment by either Roberts or the arresting officer in regard to the issue of legal counsel. After the second time that Roberts said “no” to speaking to legal counsel, the officer felt that she had made up her mind. He said that he did not feel like he should force legal counsel on her if she did not want it.  Roberts provided samples of breath, which exceeded 80mg%.

The arresting officer testified that since the arrest of Roberts, he has learned what a Prosper warning is (this post is meant to educate, not to show this officer in a bad light), and although he had been an officer in excess of 10 years at the time of this occurrence, this was the first case that he had faced this issue of the need to provide a Prosper warning. He said that he had never previously been instructed about the need to provide a Prosper warning when an individual under arrest changes their mind after making an initial request to speak with legal counsel. He said that it was his understanding that he was not the only police officer who was unaware of the need to provide a Prosper warning in such circumstances. 

My fellow officers, Prosper has been the law since 1994. This was not a recent change in the law that could excuse ignorance of it. The expectation is that as officers, we will understand the law as it was stated in Prosper and act in compliance with the requirements of the law.  As an educator in law enforcement, one of my primary duties is to ensure that officers enforcing the laws in Canadian society have an acceptable level of understanding of the fundamental principles governing the actions of those acting on behalf of and in the name of the “State”.

To that end, please be aware that the requirement to provide a Prosper warning is triggered when a detainee who has indicated that they wish to exercise their Charter right to counsel, then changes their mind. Taken one step further, a Prosper warning is required when a detainee who has asked to speak to legal counsel, has then taken further steps to contact counsel, but has been, through no fault of their own, frustrated in those attempts and then changes his or her mind. And, as in this case, even in circumstances where the detainee changes his or her mind about speaking to legal counsel prior to making any actual efforts to do so, a Prosper warning is nonetheless required (some provincial “Charter cards” name the Prosper warning such things as “Confirmation of waiver of rights to counsel”, etc., but are nonetheless Prosper warnings).

There are also several decisions across our country (some I have posted on) that have found Section 10 Charter violations where, following an ambiguous response such as “Not right now” (Munro, Ontario case), “Maybe later” (Kehoe, Alberta case), or “At this point I don’t want to call a lawyer” (Dyck, another Alberta case), which are not unequivocal and capable of supporting many interpretations, the arresting officer did not seek clarification of the response or give the Prosper warning.

Take my suggestion for what it’s worth, but such responses must be clarified and a Prosper warning given as a “best” practice to reduce such Section 10(b) Charter breaches. At the very least, in such cases it may be a good practice of re-advising detainees of the right to counsel, and stating to the arrestee something to the effect that, “If you change your mind at any time tonight during this whole process that you want to talk to a lawyer, just let myself or any other officer know and we’ll make sure you get in contact with a lawyer, okay?” (as in the R. v. MacGregor 2012 NSCA 18 at para. 7 case).  Recruits that I have instructed are likely glutted with hearing me state the latter.

In the case at hand, the evidence of the breath tests was excluded from trial, and the evidence of the officer’s observations of Roberts after she exited her vehicle at his request was excluded from trial as well. As in this case, reading the Prosper warning to ensure that Roberts’ change of mind and waiver of the right to speak to legal counsel was clear and unequivocal, would likely have taken less than 30 seconds to provide this information to her. Any delay subsequently resulting from Roberts then deciding to exercise her right to speak to legal counsel would be reasonable and in accord with the Charter right to counsel.

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Are you an officer that is in a category of Prosper warning ignorance?

In R. v. Sivalingam 2018 ONCJ 510, he was stopped by Peel Regional Police for speeding in the early morning hours.  Sivalingam was arrested for driving over 80 after failing an approved screening device (ASD) test. He was taken to the station where Intoxilyzer tests revealed that his blood alcohol content was over 80.

At his trial, he applied to exclude his breath test results under s. 24(2) of the Charter, on the grounds that his right to counsel under s. 10(b) of the Charter had been violated. He argued that when attempts to reach his lawyer were unsuccessful, the officer ought to have made it clear that he could have contacted another lawyer, or spoken to duty counsel, before taking the Intoxilyzer tests.

When the officer informed Sivalingam at the roadside of his right to counsel, Sivalingam said he did not wish to speak with a lawyer. The officer told Sivalingam to tell him at any point if he wanted to speak with counsel. Once they arrived at the police station, the officer asked Sivalingam again if he wanted to speak to a lawyer. This time, Sivalingam said that he wanted to call a specific lawyer. First, the officer called the lawyer’s cell phone number at 1:42 a.m. Because there was no answer, he left a voicemail. The officer then called the lawyer’s office number at 1:44 a.m. Finally, the officer called a 24-hour emergency contact number, where he again left a voicemail after receiving no answer. The officer believed that he made the foregoing calls while Sivalingam was going through the booking process. He said he made the calls on speaker phone while at the booking desk. In cross-examination, the officer acknowledged that he could not be sure that Sivalingam saw him making these calls, but that he would have told him he was getting no answer.

Just before entering the breath room, the officer made a final call to the lawyer’s cell phone number. Again there was no answer. The officer entered the breath room at 1:54 a.m. with Sivalingam entering shortly thereafter. The officer confirmed that he had called the lawyer of choice three times. He also explained that “if and when [the lawyer] does call, we’ll stop what we’re doing and get you on the phone with him okay.” The officer proceeded to read the primary and secondary cautions, which Sivalingam said that he understood.  The officer then read the Intoxilyzer demand to Sivalingam again. After reading the demand, the officer explained to Sivalingam that, if he refused, he could be charged with refusal, and it carried the same consequences as being over the limit. The officer then explained to Sivalingam why there was no downside to him providing breath samples.

The officer explained the breath testing procedure to Sivalingam. Just before administering the first test, at 2:03 a.m., the officer called the lawyer again. After leaving a message, the officer told Sivalingam that if the lawyer called back before the first test, he would stop and allow Sivalingam to speak to him. The officer did not give Sivalingam the option of calling another lawyer, or speaking with duty counsel. During his testimony, the officer explained that they had already been waiting for some time and he had just made the third call, and he said that he normally had luck with 24-hour numbers and he did not have any luck this time. The officer acknowledged that he was not concerned about the two-hour limit within which to perform the first breath test.

The judge ruled that the officer breached Sivalingam’s s. 10(b) Charter rights by not holding off performing the Intoxilyzer tests before Sivalingam had a reasonable opportunity to consult counsel. After the officer was unable to reach the lawyer of choice at 2:03 a.m., he should have given Sivalingam the option of calling another lawyer or duty counsel. The judge said by the officer’s own admission, there was no urgency in conducting the tests. Sivalingam never waived his right to counsel. The officer effectively waived it for him.

The judge went on to say that where circumstances warrant — as they did here — the police should remind a detainee of the availability of duty counsel, or the option of calling a lawyer, where repeated attempts to contact counsel of choice fail, and where the detainee is not insistent on speaking only with a specific lawyer. Especially, said the judge, if the police are in complete control of a detainee’s access to the phone and to the ability to even look up another lawyer’s number. The police should not leave the impression that, if counsel of choice is unavailable, there are no other options. That is what happened here.

The judge said that where a detained person’s initial counsel of choice is unavailable, the police should not simply carry on as if the detainee has exercised his or her right to counsel. In the absence of an explicit waiver, the police must continue to hold off eliciting evidence until the person has exercised the s.10(b) right earlier invoked. Common sense would suggest that the next logical step would be to point out to the detainee that counsel has not called back, and ask detainee whether he or she wishes to try another lawyer or duty counsel. If after being given the option, the detainee insists on speaking with only one specific lawyer, the law does not require the police to wait indefinitely for that lawyer to call back before starting the breath testing process. In this case, the officer may have been diligent in his attempts to get hold of the lawyer of choice; however, he was not diligent in assisting Sivalingam to exercise his right to counsel generally.

As a side note, the judge also found it troubling that the officer had no idea what a Prosper warning is and when it is required. Although the judge found that a Prosper warning was not required here, the judge agreed with defense counsel that it demonstrated an ignorance of Charter requirements. In the judge’s view, this ignorance of Charter standards provided important context to the breach that did occur, and made the breach more serious. Sivalingam should have been given an opportunity to speak with a lawyer before he performed the Intoxilyzer tests. Because he was not given that reasonable opportunity, his s. 10(b) Charter right was infringed. In the circumstances, the Intoxilyzer test results were excluded under s. 24(2) of the Charter.

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Failure to ask accused if he wants to speak to a lawyer.

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 andare not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel. In R. v. Brydges [1990], 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.

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Prosper “Hold Off” Still Being Violated

Some agency-issued standard Charter/Caution cards or statement forms contain phrases that resemble: “You may be charged with … You are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence. Do you wish to say anything?

R. v. G.T.D. 2018 SCC 7 – as he was sitting in the back of a police car, following his arrest on an offence of sexual assault of a former intimate partner, the police officer read him his rights. When the officer asked if he wanted to speak with a lawyer, he said: “Uh, yes.” The officer then said: “You may be charged with sexual assault. You are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence. Do you wish to say anything?” G.T.D. replied: “Yeah. Like a boss says I’m raping, I didn’t do because I was thinking, like, since we are in a relationship, it’s okay. I didn’t think it would be a raping because we our two boys together” [English was not his first language].

He pleaded not guilty. Defence conceded, at trial, that his statement to the officer was voluntary but argued that it was obtained in a manner that violated his right to counsel. The officer breached the duty to hold off by asking him “Do you wish to say anything?” after he said he wanted to speak to a lawyer. The trial judge ruled that the question did not breach the right to counsel and, if it did, she would not have excluded the statement. The majority in the Court of Appeal dismissed the appeal. It was of the view that the form of caution read by the police officer generated a breach of the appellant’s right to counsel under s. 10(b) of the Charter, but that the breach was of minimal gravity and that admission of the resulting evidence would not bring the administration of justice into disrepute and did not need to be excluded as a remedy under s. 24(2) of the Charter.

The Supreme Court of Canada reversed the ruling (4-1 majority) and ordered a new trial. Justice Russell Brown held in brief reasons, at paras 2-3, that the question “Do you wish to say anything?” violated the duty to hold off “because it elicited a statement” that should have been excluded. The SCC said that the trial judge expressly relied upon G.T.D.’s statement to corroborate the complainant’s evidence; therefore, its admission was not harmless and the statement should have been excluded.

The right to counsel under s. 10(b) of the Charter obliges police to “‘hold off’ from attempting to elicit incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel” (R. v. Prosper, [1994] 3 S.C.R. 236, at p. 269).

Of interest to some, the ABCA was quite vocal on point, at para. 82:

It is not the arresting officer’s behaviour individually that is of greatest concern, however. Instead, any fault lies at the feet of EPS institutionally, because it included the eliciting question at the end of its standard caution, or alternatively, because it failed to train its officers not to read this question when a detainee asked to speak with a lawyer. The arresting officer’s good faith does not significantly mitigate the seriousness of a Charter breach if his good faith misunderstanding of the law was a result of EPS training or policy that did not properly educate the officer about his obligations under the Charter. Instead, such an institutional or systemic Charter breach is more serious than an isolated incident: R. v. Harrison, 2009 SCC 34 at para 25, [2009] 2 SCR 494; R. v. Heng, 2014 ABCA 325 at paras 10-11, 580 AR 397; R. v. McGuffie, 2016 ONCA 365 at para 67, 131 OR (3d) 643.

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Failure to fulfill a duty that is considered best practice should not be taken lightly because it is a statutory and common law duty…

What do many of us do when we execute a search warrant of a residence or place? I suspect that many will say, “Leave a copy of the warrant at the place, or at least show or give the affected party a copy.” If that is your response, you would be correct; and don’t just take my word for it.

R. v. Boekdrukker 2018 ONSC 266 – police executed a search warrant at the accused’s home after she sold cocaine to an undercover officer. Following one buy, and before a second successful buy in which the accused was arrested, police applied for and were granted the search warrant, which they brought to the place to be searched before actually executing it.  One of the officers had the warrant in his car, but didn’t bother to bring the warrant into the residence with him during the search, nor did police leave a copy of the search warrant in the residence after they finished the search and left. To compound this, police did not show Ms. Boekdrukker the search warrant when she asked to see it upon her arrest at the residence. To remind all of us, s. 29(1) of the Criminal Code states:

It is the duty of every one who executes a process or warrant to have it with him, where it is feasible to do so, and to produce it when requested to do so.

In the judge’s opinion, the common law mandates that police officers leave a copy of the search warrant in an unoccupied place or premise that they have searched. In addition, s. 29(1) CC was not complied with because it was feasible for the police to show Ms. Boekdrukker the search warrant. She asked to see it. She was under arrest, cooperative, and compliant. There was no urgency in removing her from the scene. In fact, she was not removed immediately. The search warrant was in the officer’s car and could have been readily retrieved, said the judge.

As another note, in this case, there was a violation of s. 10(b) of the Charter due to the unreasonable delay in facilitating the accused’s contact with counsel (it took nearly 4 hours from the time she expressed her desire to speak to a lawyer and almost 3.5 hours from her arrival at the police station to speak to duty counsel). The reasoning relied upon the line of authority that has permitted the police to delay the s. 10(b) implementation duties when the police are in the process of obtaining and executing a search warrant, where there are legitimate concerns for an officer or public safety and/or for the loss or destruction of evidence, which may prove to be exigent circumstances that justify a temporary suspension of Charter rights. These cases often involve the potential for violence or firearms as well.

No such concerns arose in this case. The police already had the search warrant in their possession before they arrested Ms. Boekdrukker. Ms. Boekdrukker was told they were going to search her unit. The police then quickly entered and secured the unit even before Ms. Boekdrukker was taken back to the police station. There was no one in the unit that the police searched. There were no other factual circumstances that raised any safety or investigative concerns once the unit was secured. While some of the officers testified to general concerns in executing search warrants to avoid a loss of evidence, none of the officers acknowledged this was a motivating concern here in terms of the failure to facilitate access to counsel. According to the judge, even if the police properly delayed access to counsel in order not to compromise the search, there was no reason why access to counsel was delayed beyond the time when police gained access to the unit and found it unoccupied.

The evidence seized during the search of the residence was excluded and the accused was acquitted on those charges. Luckily, the charges stemming from the sale to the undercover officer stood and the accused was convicted of trafficking and possession of the proceeds of crime.

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Accused referred to duty counsel minutes after call to counsel of choice’s office went to voicemail.

R. v. Losier 2016 NBQB 213 – Losier, a former police officer, had been found guilty of having the care or control of a motor vehicle; he appealed his conviction. The accused had clearly expressed his desire to speak with the lawyer of his choice, so an officer called the lawyer’s office at the number which appeared in the yellow pages of the telephone directory. Not surprisingly, given that it was past midnight, the call went to his voice mailbox. One or two minutes later, the officer called the number for Legal Aid and left a message. Four minutes later, a lawyer from Legal Aid returned her call and Losier was able to speak with a lawyer.

The court said calling a lawyer’s office at night and reaching his voice mailbox is not sufficient to show that a reasonable effort has been made. The police officer could have tried, among other things, to find [the lawyer’s] home phone number or asked Losier if he knew of a way to reach the lawyer of his choice. Between the time the call was placed by the officer to the lawyer of choice’s office and the end of Losier’s conversation with the Legal Aid lawyer, only eight minutes elapsed. This was a short lapse of time for Losier to clearly waive his right under s. 10(b) of the Charter, said the court. Approximately one minute elapsed between the time the call was placed to the lawyer of choice’s office, which went unanswered, and the initial call was placed to Legal Aid. The accused did not have a long time to think about his right and the police officer did not offer him another opportunity to contact him or another lawyer of his choice. She did not even advise him that this was a possibility. Moreover, it was clear from her testimony, in which she stated that she had never called a lawyer in the middle of the night before, that it was not her intention to do so that night either.  The trial judge found:

To simply place a call to a lawyer’s office in the middle of the night, on a weekend no less, a call that went to the voice mailbox, and less than a minute later to offer a lawyer, another lawyer that was not the lawyer of his choice, such a scenario is very far from being reasonable and logical. Nothing constituted compelling or urgent circumstances. Jurisprudence has correctly held that the right to counsel, including the right to consult with the lawyer of one’s choice, takes precedence over the Crown’s right to rely on […] the presumption of identity under s. 258(1)(c) of the Criminal Code of Canada. Moreover, the two-hour limit to take advantage of this presumption had far from expired. […] In this case, therefore, the accused did not have a reasonable opportunity to reach the lawyer of his choice.

Nonetheless, the trial judge did not find that the accused’s right under s. 10(b) of the Charter had been breached:

The issue now is to determine if the accused in this case waived his right to consult with the lawyer of his choice by agreeing to speak with a lawyer from Legal Aid and by informing the officer that he was satisfied with their conversation. Regardless of the fact that the accused had been a police officer, even if he had been a lawyer […] specializing in criminal law, particularly in the area of impaired driving, no one, in these circumstances, can be one’s own best legal advisor, especially given that there was a real possibility that his judgment was impaired as a result of having consumed drugs or alcohol. Everyone has the right to receive the advice of a lawyer, including the lawyer of one’s choice. However, one must take into account the version of the accused, who testified to having been a police officer. As per his experience as a police officer, the accused were given ample time to contact the lawyer of their choice, before it was suggested to them that they contact another lawyer, one from Legal Aid for example. In his own words, the accused testified that they did not ask him, that they politely suggested contacting Legal Aid, and he agreed to it, that he was not there to cause trouble for anyone, that nothing would be gained by insisting or arguing. Then, after speaking with the lawyer from Legal Aid, he frankly admitted that he had been satisfied with the consultation he had had with the lawyer that the officer had suggested to him. Given his experience and knowledge, and that his discussions with the police had been cordial and polite, something he himself admits, one could expect that he would have told them about his concern regarding the fact that he was not afforded a reasonable amount of time to contact [the lawyer of his choice]….

The NBQB disagreed, ruling Losier’s right to retain and instruct counsel without delay and to be informed of that right was breached. The court was also of the view that the judge erred in law when he concluded that the accused had waived his right to counsel. He also committed an error of law when he based his finding on the accused’s experience as a police officer as well as on the discussions between the accused and the police officers, which were cordial.

The qualified technician’s certificate was excluded from evidence and an acquittal entered on appeal.

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Was the defendant’s right to consult counsel of choice violated?

R. v. Maciel 2016 ONCJ 563 – this impaired driving (refusal) case involved several issues, but this post will focus on one – the issue of consulting counsel of choice. Following the arrest, the officer informed Maciel of his right to counsel. He responded by indicating he wanted to call a lawyer. When asked if he had a specific lawyer that he wanted to contact, Maciel said “David Locke”. Rights to counsel were completed by 2:45 p.m. At that point, the officer read the primary caution to Maciel, followed by the breath demand. They arrived at the station at 3:05 p.m. Once at the division, he was subject to the ordinary booking procedures. At 3:09 p.m., the officer placed a call to Mr. Locke’s office phone number. The officer then placed a call to a second phone number that he believed to be Mr. Locke’s cellular phone number. There was no answer at either number, and the officer left a voice mail message at both requesting a call back. The officer did not note, nor did he recollect, where he obtained either of the numbers that he telephoned.

After leaving voice mail messages, the officer waited a few minutes for Mr. Locke to return his calls. At 3:12 p.m., he offered Maciel the opportunity to call duty counsel instead of Mr. Locke. Maciel declined, indicating that he wanted to speak with Mr. Locke. The officer testified that he thought it sensible to wait 20 or 30 minutes to receive a call back before making further efforts to contact counsel. The officer called the same two phone numbers again at 3:32 p.m. and 3:34 p.m. respectively. There was no answer at either number and he left further voice mail messages. At 3:35 p.m., the officer once more offered Maciel an opportunity to call duty counsel, which he again declined, still maintaining his desire to speak with Mr. Locke.

At 3:38 p.m. Maciel was moved into the breath room, where the breath tech took custody of him. The breath tech explained to Maciel the efforts that had been made to get a hold of Mr. Locke. He then offered Maciel the opportunity to call duty counsel. Once again, Maciel declined, indicating that he wanted to speak with his own lawyer. The breath tech then proceeded to read the formal breath demand to Maciel. He responded by indicating that he would prefer to wait for his lawyer. At that point, the breath tech explained the consequences of failing to provide a breath sample and told Maciel that waiting to speak to his lawyer was not a reasonable excuse given that the police had already waited a reasonable amount of time for counsel to call back. The officer again reiterated the demand, and Maciel again refused, citing his desire to speak with his lawyer first. They went back and forth like this a number of times, with Maciel saying at one point: “I understand that, you guys have been trying as much as you can, I would want to speak to my lawyer first; if you were in my shoes, you’d want to speak with your lawyer first too.” Finally, after clearly warning Maciel that he was being given one last chance, and Maciel responding, “I need to speak with my lawyer,” the breath tech indicated that he was interpreting his response as a refusal to provide a breath sample and informed him that he would be charged accordingly.

The Honourable Justice James Stribopoulos said it appeared from the evidence heard at trial that the practice of the Peel Regional Police is to make telephone calls to counsel on behalf of a person in custody who has asked to speak with either duty counsel or a specific lawyer. Those in police custody are not provided with a phone book, access to the Internet, and the use of a phone to contact counsel of their choosing. Rather, it is the police who make these efforts on behalf of persons in their custody. The Judge said this is in contrast to the practice elsewhere in the country, where the police discharge their duty to provide persons in custody with a reasonable opportunity to contact counsel by providing them with the means to do so. For example, in Alberta, those who assert their right to counsel are given access to a telephone, a lawyer’s directory, phone books and are even provided with access to the Internet. In contrast, the Peel Regional Police have assumed the responsibility of consulting such resources on behalf of persons in their custody who assert their right to consult a lawyer of their choosing.

Quite obviously, said the Judge, it was not his role to second-guess police operational procedures. And, to be clear, he did not believe there was anything constitutionally objectionable with the police assuming the responsibility of contacting counsel on behalf of those in their custody. That said, it is very much the function of the courts to assess the adequacy of police efforts in the discharge of their constitutional obligations. It follows, said the Judge, that if the police assume the responsibility of contacting counsel of choice on behalf of a person who is in their custody, then it is for the courts to assess the adequacy of those efforts. Of course, this begged the question as to what standard should be used in evaluating the adequacy of police efforts.

If the police do not assume this responsibility, those in detention would be expected to exercise reasonable diligence in contacting their lawyer of choice. Where the police take on this function on behalf of the detainee, it seemed eminently sensible to the court to subject their efforts to the same standard. Anything less would encourage token efforts by the police and imperil the right of those in detention to consult a lawyer of their choosing. As Justice Horkins noted in R. v. Panigas [2014] O.J. No. 1244 at para. 52:

When the police, as an institution, decide to take control of the accused’s means of accessing counsel of choice, they also assume the obligation to pursue that constitutional right with all the same effort and diligence that the accused himself would apply.

In this case, the officer used the Internet to look up Mr. Locke’s office number on the Law Society of Upper Canada’s website. In addition, he conducted what he described as a “Google search” and managed to locate a second number for Mr. Locke (which turned out to be a home phone number). Messages were left at both of these phone numbers, first at around 3:10 p.m., and then again about twenty minutes later. Unfortunately, the officer did not actually look at the website maintained by Mr. Locke’s law firm. He had no explanation for failing to do so. If he had, he would have noted that like most business websites, it included a “Contact Us” link. Had he clicked on that link, he would have obtained both Mr. Locke’s e-mail address and his cell phone number, said the Judge.

In the Judge’s view, in an era when practically every lawyer and law firm has a website, that would be the most sensible starting point for anyone trying to get in touch with a particular lawyer. This is where a lawyer is most likely to share information with prospective clients about how to go about contacting them. As was the case with Mr. Locke, a criminal lawyer’s website will often note his or her cell phone number or e-mail address, which are both ideal ways to get a hold of a criminal lawyer, especially outside of ordinary business hours.

Where the police have assumed the responsibility to contact counsel of choice, the Judge thought it sensible to outline the sort of steps that should be undertaken to obtain counsel’s contact details in order to satisfy the reasonable diligence standard. In the Judge’s view, common sense suggests that at a minimum, this should include:

  • Asking the person in custody if they have a telephone number, or know anyone who has a telephone number, for the lawyer they want to contact;
  • Giving the person in custody access to their cellular phone or smart phone, where they advise that they have the lawyer’s number stored on such a device;
  • Conducting an Internet search to determine if the lawyer has a website and consulting any such website to locate a cellular phone number or e-mail address for the lawyer, and calling, texting, and/or e-mailing these;
  • Using the Internet to search any available online directories, for example Canada 411, CanadianLawList, or the Law Society of Upper Canada’s Paralegal and Lawyer Directory;
  • Using any available conventional paper based directories, both for lawyers and for phone numbers more generally (i.e. The White or Yellow Pages).

In this case, after considering the serious nature of the violation and the impact on Maciel’s constitutionally protected interests, while also remembering society’s interest in having the case adjudicated on its merits, the Judge believed that exclusion of the evidence would better serve the long-term repute of the administration of justice.

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Delay in implementation of 10(b) Charter rights.

R. v. Tieu 2016 ABQB 344 – this was a drug investigation that focused on two individuals; Tieu not being either of them. Tieu entered the surveillance area unexpectedly one day and he was arrested after a short meeting with one of the male targets of the investigation.  Tieu drove into the lot where one of the targets was parked. Tieu had arrived in a Mitsubishi, opened the trunk, went to target’s truck and entered on the passenger side. Tieu and the target then left the lot in the truck and returned a short while later, at which time Tieu exited the truck. Tieu then walked back to his car with a laptop bag (subsequently found to contain 30 ounces of cocaine) . The Cpl in charge of the investigation, although not on scene at the time, was given this information by officers that were on scene.  After receiving the information, the Cpl ordered that Tieu be arrested for trafficking.  The target that Tieu had met with was arrested an hour later.

Upon arresting Tieu, three constables took him out of the car. One of those officers read Tieu his Charter rights. He asked Tieu if he understood, and Tieu said yes. Further, he asked Tieu if he wanted to call a lawyer, and Tieu said “yes.” No other statements were given by Tieu at the time. Following his arrest, Tieu was taken to the Airdrie RCMP detachment which was a 50 minute drive away from the surveillance area. This location was staffed only by guards without any authority to provide telephones to arrested persons. When questioned at trial on why a police station nearby was not utilized to provide Tieu with his Charter rights, an officer responded that it is police policy to take any person arrested by the RCMP in Calgary to the Airdrie detachment, or else to another station outside the city of Calgary that contains an RCMP cell block. When asked why a Calgary cell block location closer to the scene of the arrest could not have been used, the officer stated:

“We utilize RCMP detachments and resources. We don’t take prisoners to the Calgary Police Service stations. We’re not familiar with their processes. We’re not familiar with how they do things. So we would typically take anyone that we arrested within Calgary and shuttle them up to Airdrie detachment, as being the closest serving detachment for the RCMP.”

During the 50 minute drive through Calgary to the Airdrie RCMP detachment, the arresting officer and driver of the police vehicle, gave evidence that he and Tieu engaged in conversation. He made no notes of this conversation, nor could he recall with any certainty what was or was not talked about. This was significant in a section 10(b) analysis, as the Supreme Court of Canada has imposed a duty of restraint on police officers to refrain from eliciting evidence from detainees until he or she has been given a reasonable opportunity to retain and instruct counsel (R. v. Prosper [1994] 3 SCR 236).

The officers sought a search warrant to search the target’s residence.  Officers testified that Tieu was not given access to counsel to prevent the destruction of evidence (until the search warrant was executed) and for officer safety.  Yet, following the initial (“clearing”) search of the target’s residence, another 2 hours lapsed before Tieu was finally given access to a phone to call a lawyer.

Tieu was not provided the opportunity to contact counsel for 5 1/2 hours after his arrest, 4 1/2 hours after Pearson’s arrest, and 2 hours after Pearson’s apartment was entered without a warrant (the warrant was issued some 4 1/2 hours following the officers “clearing” and securing the target residence). The ABQB stated that any delay in facilitating an arrestee’s section 10(b) rights will amount to a breach, except in those rare instances when “urgent,” exigent or extraordinary circumstances interrupt the facilitation of the right to counsel.

The extraordinary or exigent circumstance justification under 10(b) is reserved for rare situations in which police have reasonable grounds to suspect that delay is (i) necessary to prevent imminent bodily harm or death to any person, and; (ii) to believe that evidence is present and that the delay is required to prevent the imminent loss or imminent destruction of evidence ….

The court ruled that the exigent circumstance exception to facilitating a person’s 10(b) rights is not and must not become a common or default approach used by police on a regular basis. The justification is necessarily narrow and will only excuse a breach of section 10(b) in genuinely extraordinary circumstances. To find otherwise would effectively condone police behaviour that blatantly disregards the Charter rights of accused persons, while also undermining those situations in which extraordinary circumstances are actually present and a delay is properly justified. In this case, the court did not find such urgent circumstances existed and the evidence was excluded.

While the Court did not find that the police were operating in bad faith, there was knowledge of and intention to delay Tieu’s right to counsel. It was not a mistake or result of oversight; rather the breach was deliberate. This placed the conduct at the serious end of the spectrum, and is the type of police conduct the Court said it must denounce and distance itself from.

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Search incident to an investigative detention – do police just get one kick at the can?

In R. v. McGuffie 2016 ONCA 365, the Ottawa Police Service received a telephone call at about 2:00 a.m. from security personnel at a downtown bar advising that a group of five men in the bar had been seen passing a handgun around. Several officers responded to the call. An officer arrived at the bar at about 2:07 a.m. Security staff were ushering the patrons out of the bar. Other officers were already present. The doorman identified two individuals as part of the group that had been passing the handgun around in the bar. McGuffie, one of those two men, walked away quickly from the bar. The officer followed him and caught up to McGuffie a short distance from the bar. He asked McGuffie why he was “running away from his friends?” McGuffie gave conflicting responses. The officer decided to detain him as he suspected McGuffie had the weapon seen earlier in the bar. The officer told McGuffie that he was being detained because he believed he had a handgun. McGuffie denied having a handgun.

The officer handcuffed McGuffie and conducted a “quick search to the vulnerable parts of his body“- a pat down of his waistband and waistline, which the officer described as a “cursory search“. Nothing turned up in the search. McGuffie was standing on the street when he was handcuffed and searched. The detaining officer placed McGuffie in the back of another officer’s police car, and the detaining officer returned to the bar to assist other officers in searching for the handgun. He said he was concerned about officer safety and was of the belief that the gun was in the bar. After what he said was a quick search of the bar, the detaining officer returned to the other officer’s car and said he told McGuffie that he was going to search him for a firearm since he said he found out it was a small gun easily hidden; 31 minutes had passed. He removed him from the cruiser and did a “quadrant search” – to be thorough. During the search, he found “a package of white powder in a rectangular shape” identified as cocaine (118.5 grams), which he said felt like the barrel of a gun; and approximately $600 cash in his pockets. He also found a small bag of marihuana in his pants pocket. He also found and seized a cell phone. The officer arrested McGuffie at 2.55 am for possession for the purpose of trafficking; this was some 30-35 minutes from the initial detention. McGuffie was also strip searched back at the station, which turned up 30.2 grams of crack cocaine. The courts also found issue with the strip search, but I will not be discussing that part of the appeal here. Part of the reason was that the handgun had been located previously by a K9 Unit.

The ONCA ruled that the initial detention of McGuffie on the street was a lawful exercise of the police power, but police infringed his s. 9 right by placing him in the cruiser for 30 minutes. He was effectively imprisoned from the moment he was handcuffed and placed in the cruiser and should have been advised that he had a right to speak to his lawyer. If McGuffie wanted to speak to a lawyer, police should have afforded him that opportunity without delay. McGuffie’s rights under s. 10(b) were breached. The initial pat down search of McGuffie on the street was reasonable and justified as an incident of his investigative detention. The second more thorough search of McGuffie was unlawful and unconstitutional. If there was any danger to the officer when he conducted the second search, it flowed directly from the unlawful detention of McGuffie and not from anything the officer was doing in the lawful exercise of his duty. If the arrest was unlawful, the search incidental to the arrest was unlawful and contrary to s. 8.  The ONCA excluded the evidence and acquitted McGuffie. According to the ONCA, the detaining officer seemed wholly unaware of, or worse yet, wholly unconcerned with, the limits of his powers to detain and search individuals. He was equally oblivious to his obligations under s. 10(b).

D.H. Doherty, for an unanimous court, said, in part:

“I would draw an analogy between searches that are said to be lawful as an incident of an arrest and safety searches which are said to be lawful as an incident of a lawful investigative detention. If the arrest is unlawful, the search incidental to the arrest is unlawful and contrary to s. 8 …. Similarly, if an investigative detention is unlawful, a safety search said to be justified on the basis of that detention must be unlawful and contrary to s. 8. …”

The court also recognized the interplay between investigative detention and the right to counsel. D.H. Doherty at para. 47:

“…It does …highlight the tension between the relatively brief duration of investigative detentions and the exercise of the right to counsel by persons being held under investigative detention. The submission assumes that the police can significantly prolong the detention if necessary to afford the detained person an opportunity to speak with counsel. I do not necessarily accept that submission. It may be that, if a police officer can afford a detained person an opportunity to exercise his s. 10(b) rights only by significantly prolonging an investigative detention, the police officer must release the detained person rather than breach s. 9 of the Charter. I leave that question for another case.”

Although not mentioned in the ONCA decision here, it seems to me at least that this issue was discussed in some length in Her Majesty the Queen v. Suberu [Indexed as: R. v. Suberu], 85 O.R. (3d) 127 some time ago. In that decision, it was discussed that a person who is under investigative detention and who after being advised of his or her right to counsel chooses to exercise that right, that person will almost inevitably end up suffering a longer detention and more intrusive state conduct than he or she would otherwise have endured. The court said that there can be a brief time span between an initial detention for investigative purposes and the administration of the s. 10(b) rights to reflect the nature of the vast majority of investigative detentions, in that they must be of a brief duration. The ONCA said that the police activity during the brief interlude contemplated by the words “without delay” must be truly exploratory in that the officer must be trying to decide whether anything beyond a brief detention of the person will be necessary and justified. If the officer has already made up his or her mind that the detained person will be detained for something more than a brief interval, there is no justification for not providing the individual with his or her right to counsel immediately. On appeal to the SCC (2009 SCC 33), the SCC rejected that approach, but the focus of the appeal seemed to be whether or not “advising” the person of his or her rights would cause a prolonged detention. Well, the SCC put that to rest when it ruled that the police duty to inform an individual of his or her s. 10(b) Charter right to retain and instruct counsel is triggered at the outset of an investigative detention. From the moment an individual is detained, s. 10(b) is engaged and the police have the obligation to inform the detainee of his or her right to counsel “without delay”. The immediacy of this obligation is only subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter.

So, alas, it seems that the question of whether or not it is a s. 9 Charter violation with regards to “implementing” the duties upon detention if the detainee chooses to exercise it and prolonging the detention to make that happen will have to be answered another day. The implementational obligation imposed on the police under s. 10(b) requires the police to provide the detainee with a reasonable opportunity to retain and instruct counsel. The content of the police duties under s. 10(b) was not at issue in the Suberu appeal, and it was not settled in McGuffie. However, it would be difficult to see it being anything but a s. 9 violation since in R. v. Mann 2004 SCC 52, the SCC said:

“…investigative concerns will usually justify only a brief detention following which the officer will either have to release the individual or, if reasonable and probable grounds exist, arrest the individual.”

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Filed under Arbitrary Arrest or Detention, Investigative Detention, Recent Case Law, Section 10 Charter