Publisher's Commentary

POLICING BY CONSENT


Eugène François Vidocq, the founder of French policing, encouraged and espoused a police service devoid of military affiliation. Later, Sir Robert Peel agreed. Both men argued that the establishment and maintenance of policing must be by public consent.

How does policing today measure up to their standards? There certainly has been a slow erosion but things can be done to narrow the gap and increase the public's confidence that local police still seek and appreciate their approval and consent.

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Blue Line Magazine January 2011

No right to lawyer during interrogation


In what’s being called an interrogation trilogy, the Supreme Court of Canada has released three companion cases defining limits on the right to counsel. Fundamental questions decided include whether a detainee has a constitutional right to further consult with counsel during an interrogation, can request a lawyer be present during a custodial interrogation and to what extent police must delay questioning until they can consult with chosen counsel. The majority decision was somewhat predictable and nothing really new arose. Chief Justice McLachlin and Justices Charron, Deschamps, Rothstein and Cromwell formed the majority on all cases. Justice Binnie wrote his own view while Justices Lebel, Fish and Abella stood together. The majority largely echoed its earlier rulings and those of appellate courts.

In the end, police now have some pretty solid guidelines to follow but, of course, application of these constitutional principles fell to the unique and individual facts of the case. The challenge for police is applying these legal rules to new situations as they arise.

h3. Sinclair

In R. v. Sinclair, 2010 SCC 35 the accused was arrested for murder and advised of his rights to retain and instruct counsel without delay and call any lawyer, including legal aid for free. He phoned a lawyer from the detachment twice, speaking for about three minutes each time.

An officer confirmed with Sinclair that he was advised and had exercised his right to counsel before interviewing him. He also warned him the interview was being recorded, could be used in court and that he didn’t have to say anything.

Sinclair stated on four or five occasions during the five hour interview that he didn’t want to talk to the officer, asking to speak with his lawyer again and wanting him present during the interview. The officer deflected the requests, advising that he didn’t have that right, and continued questioning him, gradually revealing more of the evidence against him.

Sinclair eventually implicated himself in the victim’s death, stating he hit him on the head with a frying pan, stabbed him several times, slit his throat and threw the body in a dumpster. Later police placed him in a cell with an undercover officer where he made similar incriminating statements. Sinclair also accompanied police to where the victim had been killed and participated in a re-enactment.

At trial in British Columbia Supreme Court the interview statements, exchange with the undercover officer and re-enactment were proven voluntary beyond a reasonable doubt. The judge found there were no s. 10(b) Charter breaches, Sinclair’s statements were admitted and he was convicted of manslaughter. The decision was upheld by the BC Court of Appeal, which found an arrestee had no right to terminate questioning by asserting a desire to again speak with a lawyer.

Sinclair appealed to Canada’s highest court, again arguing that s. 10(b) imposed a duty on police to stop questioning a detainee who had already exercised their right to counsel but wanted to again talk to a lawyer. He also argued that s. 10(b) required police, when requested, to have counsel present during a custodial interrogation.

Co-authoring the majority opinion, McLachlin and Charron dismissed Sinclair’s appeal, finding that an initial warning, coupled with a reasonable opportunity to consult counsel when the detainee invokes the right, satisfy s. 10(b) in most cases. They also held that the section does not mandate that defence counsel be present throughout a custodial interrogation.

h3. one-time or continuing right?

  1. 10(a), the right on arrest or detention “to be informed promptly of the reasons therefor,” imposes a duty to give the detainee information at a discrete point in time, they found. There is no requirement to convey this information more than once unless the reasons themselves change. The right of habeus corpus found in s. 10(c), on the other hand, is a continuing right.

The purpose of s. 10(b) is to inform the detainee of their rights and allow them to immediately get legal advice relevant to their legal situation on how to exercise them. In custodial interrogations, this is primarily to understand their s. 7 right to choose whether to co-operate with police or remain silent. The purpose is fulfilled in two ways. First, the detainee must be advised of right to counsel (informational component). Second, they must be given an opportunity to exercise this right and police have a duty to delay questioning them until they have a reasonable opportunity to do so (implementational component). However, if a detainee invoking the right to counsel is not reasonably diligent in exercising it, the correlative duties on police will either not arise or be suspended.

A detainee informed of their right to consult counsel may waive it. Section 10(b), on the other hand, does not provide an ongoing right to legal assistance during an interview, regardless of the circumstances. The majority stated:

We conclude that in the context of a custodial interrogation, the purpose of s. 10(b) is to support the detainee’s right to choose whether to co-operate with the police investigation or not, by giving him access to legal advice on the situation he is facing. This is achieved by requiring that he be informed of the right to consult counsel and, if he so requests, be given an opportunity to consult counsel (para. 32).

A detainee has an absolute right to silence and therefore ultimate control over the interrogation; they can choose to say nothing and decide what to say and when. Normally, s. 10(b) affords them a single consultation (“one-time matter”) and assumes the initial legal advice received was sufficient and correct on how the detainee should exercise their rights during the interrogation.

h3. right to lawyer during interview

The majority refused to transplant a U.S. Miranda style rule, which recognizes a right to have counsel present during a police interview:

We conclude that s. 10(b) should not be interpreted as conferring a constitutional right to have a lawyer present throughout a police interview. There is, of course, nothing to prevent counsel from being present at an interrogation where all sides consent, as already occurs. The police remain free to facilitate such an arrangement if they so choose and the detainee may wish to make counsel’s presence a precondition of giving a statement (para. 42).

h3. right to re-consult

There will be some circumstances where a further consultation with counsel may be constitutionally required; generally where there’s a material change in the detainee’s situation after the initial consultation. This further right will arise where new developments may render the initial advice no longer adequate and further consultation is needed to fulfill s.10(b); providing the detainee with legal advice on their choice of whether to co-operate with police. The majority provided some examples to guide police when further consultation is required.

New non-routine procedures, including participating in a line-up or submitting to a polygraph, which do not generally fall within the expectation of the advising lawyer at the time of initial consultation. The initial advice will be geared to the expectation that police will seek to question the detainee. It follows that to fulfill the s.10(b) purpose of providing the detainee with the information necessary to making a meaningful choice about whether to co-operate in these new procedures, further advice from counsel is necessary.

Change in jeopardy. The detainee is advised of the reasons for their detention (s.10(a)). The s.10(b) advice and opportunity to consult counsel follows this. The advice given will be tailored to the situation as the detainee and their lawyer then understand it. If the investigation takes a new and more serious turn as events unfold, that advice may no longer be adequate to the actual situation (or jeopardy) the detainee faces. To fulfill the purpose of s. 10(b), the detainee must be given a further opportunity to consult with counsel and obtain advice on the new situation.

Reason to question the detainee’s understanding of their s.10(b) right. If circumstances indicate a detainee may not have understood the initial advice about right to counsel, police may have a duty to give them a further opportunity to talk to a lawyer. Similarly, if police undermine the detainee’s legal advice, this may have the effect of distorting or nullifying it, thereby undercutting the purpose of the section. To counteract this effect, it has been found necessary to give the detainee a further right to consult counsel.

The common police tactic of gradually revealing (actual or fake) evidence to a detainee to demonstrate or exaggerate the strength of their case does not automatically trigger the right to a second consultation, giving rise to renewed s.10(b) rights. However, police may allow any number of further consultations, perhaps even using this as a technique to reassure a detainee that further access will be available if needed.

These few recognized exceptions or change of circumstances must be objectively observable to trigger the additional implementational duties. For example, it is not enough for an accused to merely assert after the fact that they were confused or needed help.

Sinclair did not fall into any of the recognized categories for a renewed right to counsel; his jeopardy remained the same, he wasn’t asked to participate in a line-up or confused about his legal options and police representations about the strength of evidence against him did not require talking again to a lawyer. His s.10(b) rights were not breached and the appeal was dismissed.

h3. Different views

Binnie also agreed that s.10(b) doesn’t allow the presence of counsel during custodial interrogations but held that a further consultation may be required in “evolving” as well as “changed” circumstances. The detainee’s request to consult again must be (1) related to the need for legal assistance, not simply to delay or distract from the police interrogation; and (2) such a request must be reasonably justified by the objective circumstances, which were or ought to have been apparent to police during the interrogation.

Binnie would have excluded the confessions and re-enactment, allowed the appeal and ordered a new trial.

Lebel and Fish, writing a three member minority opinion, found Binnie’s intermediate stance on s.10(b) didn’t go far enough and favoured an ongoing right to to the effective assistance of counsel.

The police are not empowered by the common law or by statute, and still less by our Condtitution, to prevent or undermine the effective exercise by detainees of either their right to silence or their right to counsel, or to compel them against their clearly expressed wishes to participate in interrogations until confession.

They would also have excluded the confessions and re-enactment, allowed the appeal and ordered a new trial.

h3. mcCrimmon

In R. v. McCrimmon, 2010 SCC 36 the accused was arrested at his home in relation to eight assaults against five women. Upon being informed why he was arrested and his rights to remain silent and counsel, McCrimmon asked to speak to his own lawyer. Police called the office and left a message on an answering machine.

McCrimmon agreed to contact legal aid and spoke to duty counsel privately for about five minutes, confirmed he was satisfied with and understood the advice. About 4.5 hours after being placed in a cell, he confirmed having spoken to legal aid and said he had nothing to say to police.

During the more than three hour interrogation, McCrimmon stated several times that he would not answer questions, wanted to speak to a lawyer, have one present and return to his cell. His requests were denied and he eventually admitted to his involvement in the offences. He was charged on an eight-count indictment with offences relating to assaults against four women.

A BC Provincial Court judge found McCrimmon’s s.10(b) Charter rights were met when he spoke to legal aid. He admitted his statement, convicting him of two counts each of sexual assault and administering a noxious substance. The province’s highest court upheld the convictions. Since McCrimmon had exercised his right to counsel by speaking to legal aid and expressed satisfaction with the advice, he had no right to speak to the lawyer of his choice prior to being interviewed. His contention that police could not question him once he asked to again speak with a lawyer was also rejected.

McCrimmon appealed to the Supreme Court, arguing his s.10(b) rights were violated when police failed to stop the custodial interview, prevented him from having counsel present during the interview and repeatedly denied his requests for further consultation.

For the reasons expressed in Sinclair, the majority rejected McCrimmon’s arguments that he was entitled to have a lawyer present during his interrogation and dismissed his other aguments.

h3. right to counsel of choice

Where the detainee opts to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles him or her to a reasonable opportunity to contact chosen counsel. If the chosen lawyer is not immediately available, the detainee has the right to refuse to contact another counsel and wait a reasonable amount of time for counsel of choice to become available.

Provided the detainee exercises reasonable diligence in the exercise of these rights, the police have a duty to hold off questioning or otherwise attempting to elicit evidence from the detainee until he or she has had the opportunity to consult with counsel of choice. If the chosen lawyer cannot be available within a reasonable period of time, the detainee is expected to exercise his or her right to counsel by calling another lawyer, or the police duty to hold off will be suspended (para. 17).

Reasonable time depends on the circumstances as a whole, including the seriousness of the charge and the urgency of the investigation. The purpose of the right to counsel on arrest or detention is intended to provide detainees with immediate legal advice about their rights and obligations under the law, most notably the right to remain silent. Because of this need for immediate legal advice, information about the existence and availability of duty counsel and legal aid plans are part of the standard caution and the detained person must exercise reasonable diligence. Since McCrimmon agreed to speak to legal aid and expressed satisfaction with the advice, there was no further obligation to delay the interrogation until his lawyer of choice became available.

h3. renewed counsel right

In Sinclair the majority concluded detainees can speak to a lawyer again during a custodial interrogation where circumstances or jeopardy change, there are new procedures or reason to believe the first information provided was deficient.

There was no objectively discernable change in McCrimmon’s circumstances. The gradual or progressive revelation of evidence incriminating the detainee does not, without more, give rise under s. 10(b) to a renewed right to consult with counsel. His appeal was dismissed and his convictions affirmed.

h3. Different views

Binnie would also have dismissed the appeal but for somewhat different reasons. In his view, McCrimmon’s s. 10(b) right to counsel wasn’t exhausted when he received his initial advice from duty counsel. Although his further requests were to satisfy a need for legal assistance, rather than delay or distraction, there wasn’t anything to suggest his requests could be reasonably justified by objective circumstances which were or ought to have been apparent to the officer.

The three judge minority, on the other hand, would have excluded McCrimmon’s incriminating statements. He sought but was denied access to counsel and the right was not spent upon an initial exercise, in their view. Its renewal does not depend on a manifest or material change in jeopardy in the opinion of the police interrogator. They would have ordered a new trial.

h3. Willier

In R. v. Willier, 2010 SCC 37 the accused was arrested on a Saturday in connection with a woman found stabbed to death in her house. He admitted to taking some pills, was escorted to hospital and cautioned in the emergency ward about five hours after his arrest. Police told him he could call any lawyer he wanted, informed him about free duty counsel and gave him a phone book and the toll-free number for legal aid.

Willier said he understood his rights and wanted to wait until the next day to contact counsel. Around midnight, after being released from hospital and taken to the detachment, he was again cautioned and asked to speak to a free lawyer. He spoke to legal aid for about three minutes in private and was placed back in his cell.

Willier was offered another opportunity to speak to counsel around 8 a.m. Sunday morning. He asked to speak to his lawyer of choice and a message was left on an answering machine. An officer told Willier his lawyer would likely not be available until the next day since the office was closed and Willier opted to again speak to duty counsel – this time for about one minute.

About an hour later he declined another chance to contact a lawyer, was re-cautioned about his right to silence and told anything he said could be used as evidence and that he could stop the interview at any time and call a lawyer. A police investigator then interviewed him for approximately three hours; it was videotaped.

During a voir dire in Alberta Court of Queen’s Bench, Willier’s statement was held to violate his Charter right to counsel and declared inadmissible. The trial judge identified two s. 10(b) breaches. First, Willier wasn’t informed of his right to counsel immediately upon arrest, but at the hospital some hours later, although the judge found this to be insignificant because no evidence was gathered during the delay.

Second, he found the police actively discouraged Willier from waiting for a return call from his lawyer of choice. Their failure to delay the interrogation amounted to a s. 10(b) breach because of the lack of investigative urgency and any indication his chosen lawyer would be available within a reasonable time.

The two conversations Willier did have were insufficient, given their brevity, for him to have a meaningful opportunity to retain and instruct counsel. The accused was acquitted but the court allowed a Crown’s appeal and ordered a new trial. The 2-1 majority found the trial judge erred in basing a Charter breach on the inferred inadequacy of the legal advice Willier had received.

Section 10(b) does not require police to monitor the quality of legal advice. A solicitorclient communication is privileged and they’re not entitled to know its content; even if voluntarily informed about the advice, it would be inappropriate for them to second-guess its adequacy.

Finally, police have a duty to ensure a detainee knows immediate and free legal consultation is available and merely fulfilled this duty by telling Willier this when his chosen lawyer could not be reached. He talked to legal aid twice, expressed satisfaction with the advice and decided not to call counsel again prior to the interview. He also waived any continuing right to speak with counsel and police were entitled to question him; their obligation to hold off was suspended.

Willier appealed to Canada’s top court, claiming he had not been given a reasonable opportunity to consult his chosen counsel. His appeal was unanimously dismissed.

McLachlin and Charron, again writing for a five justice majority, found Willier exercised his right to counsel by opting to speak with legal aid. Since he didn’t try to relinquish it, nor waive his s. 10(b) right, police did not have to warn him he had a reasonable opportunity to contact chosen counsel or of their obligation to not question him until he was given that opportunity.

The majority also didn’t accept that his duty counsel consultations were insufficient. While s. 10(b) requires the police to afford a detainee a reasonable opportunity to contact counsel and to facilitate that contact, it does not require them to monitor the quality of the advice once contact is made. The solicitorclient relationship is one of confidence, premised upon privileged communication. Respect for the integrity of this relationship makes it untenable for the police to be responsible, as arbiters, for monitoring the quality of legal advice received by a detainee.

To impose such a duty on the police would be incompatible with the privileged nature of the relationship. The police cannot be required to mandate a particular qualitative standard of advice, nor are they entitled to inquire into the content of the advice provided. Further, even if such a duty were warranted, the applicable standard of adequacy is unclear....

(T)here is a “wide range of reasonable professional assistance” and as such what is considered reasonable, sufficient, or adequate advice is ill defined and highly variable (para. 41).

Even though Willier’s conversations were brief, unless a detainee indicates diligently and reasonably that the advice is inadequate, police may assume they are satisfied and can interview them. Willier expressed satisfaction to the interviewing officer, prior to questioning. Police did not breach his right to counsel and the court upheld the lower court’s decision.

Binnie agreed that the appeal should be dismissed since Willier, prior to being questioned, expressed satisfaction speaking to legal aid and with the advice received. He did not pursue any further opportunity to contact his lawyer of choice even though offered an openended invitation. Lebel and Fish, with Abella agreeing, also upheld the new trial order.

h3. More cases to consider

The Supreme Court also rejected leave to appeal last November in two more cases involving challenges to s. 10(b). In R. v. Anderson, 2009 ABCA 67 application for leave to appeal dismissed (2009) S.C.C.A. No. 428, police conducted a lengthy, undercover sting operation targeting the accused after a hotel janitor was killed during a robbery.

Anderson made incriminating statements to undercover officers, including details of the murder and robbery that police had held back. They arrested him for murder, read his Charter rights and instructed on his right to free legal advice and to stay silent. He spoke to duty counsel by phone for about four minutes and was interviewed more than 1.5 hours later but not re-Chartered or re-cautioned before the interview, although he was asked if he had spoken to a lawyer and was satisfied with the advice received.

At the interrogation Anderson asked to speak to a lawyer and stated he did not want to say anything. The interview proceeded after some discussion concerning his contact with duty counsel and he made incriminating statements.

An Alberta Court of Queen’s Bench judge admitted both statements into evidence, holding that there was no s.10(b) infringement in obtaining them. He wasn’t persuaded the interrogator was required to give any further Charter advisement to Anderson when the arresting officer had already done so not long before the interview.

Anderson’s appeal to the Alberta Court of Appeal was dismissed. His suggestion that, regardless of the circumstances, police must delay questioning if the detainee seems diffident about answering without more legal advice was rejected. He had contended that a detainee did not have only a single opportunity to talk to a lawyer (the cinematic “one phone call”).

The court found no general proposition in law that a detainee possesses a broad constitutional immunity from questioning, such that if they indicate a reluctance to answer questions absent counsel, police must treat it as triggering a fresh duty under s. 10(b) to “hold off” pending a further opportunity to speak to counsel.

The police are entitled to interview detainees after they have talked to counsel provided that there is no intervening breach of the detainee’s Charter rights or involuntariness, or lack of operating mind. During such interviews, the police can “out manoeuvre” the detainee and persevere in their effort to acquire evidence by seeking to persuade the detainee to speak (at para. 32).

In R. v. Alix, 2010 QCCA 1055 application for leave to appeal dismissed (2010) S.C.C.A. No. 278, the accused was charged with first degree murder and attempted murder related to two fires. The first, in 2001, killed her mother and the second, in 2003, killed her one-yearold son. Following the second fire, Alix made various statements to a number of people, including police officers, which a Québec Superior Court admitted into evidence. Included was a statement made to police the day she was arrested.

A jury convicted her of two counts of first degree murder and one count of attempted murder. Alix challenged the statements admissibility on several grounds, including the violation of her constitutional right to counsel. That was based on police refusing to allow her counsel to be present during interrogation and not suspending questioning when she asked to again contact counsel.

The Québec Court of Appeal found Alix had exercised her right to counsel initially, during a private phone conversation, and again during a meeting with a lawyer at the police station so nothing prevented police from starting to question her and using reasonable means of persuasion. Nor was there a requirement to have the lawyer present during questioning. Alix’s convictions were upheld and her appeal dismissed.

In R. v. Wu & Huynh, 2010 ABCA 337 the Alberta Court of Appeal had to determine whether recording an interview and comparing it to wiretap recordings was a “non routine” procedure envisioned in Sinclair that would entitle a further right to counsel.

Police intercepted Wu and co-accused Huynh’s communications pursuant to a court order. They were arrested and advised of their Charter and counsel rights. Wu spoke to his lawyer in private for about six minutes while Huynh spoke for less than three minutes.

An Alberta Court of Queen’s Bench judge admitted the recordings and the accuseds’ statements as evidence. Although they were exculpatory, police compared them with the wiretaps to identify who was speaking. The men were convicted of cocaine trafficking, conspiracy to traffic and Wu with an additional cocaine trafficking count.

They appealed arguing, among other grounds, that the interview recording was a “non-routine procedure,” triggering a further s.10(b) warning and second opportunity to consult counsel. The unanimous court rejected this argument. The “non-routine procedures” mentioned in Sinclair were qualitatively different from ordinary interviews, the court stated:

There is no physical difference between the police interviewing (and recording the interview) for the forensic purpose of seeking evidence from the content of the speaking and the police doing precisely the same thing for the forensic purpose of seeking evidence from the characteristics of the speaking. No different activity is involved from the perspective of the detainee. No greater participation of the detainee is sought. So the question raised by the (accuseds) turns on whether an undisclosed motive or state of mind of the police in conducting an interview changes the nature of the jural relationship between the detainee and the police such as to trigger further duties of the police under s. 10(b) of the Charter...

(I)nteraction between police and a detainee may have multiple police purposes and the purposes may evolve during the interaction. The crucial question there was whether the interaction was offensive to the Charter, not whether one purpose was more important than the other. The same can be said here.

In our view, the fact that the police may have had more than one purpose in mind when interviewing the appellants does not change the fact that there was no proven breach of s. 10(b) of the Charter before the interviews commenced. Nor did a s. 10(b) breach arise from any undisclosed intentions of the police. On these facts, we need not address the complex question as to when a shift in the nature and degree of the involvement of the detainee in the investigation is sufficiently different in a qualitative and juridical sense to warrant a second advisement and opportunity under s. 10(b) of the Charter. The Charter argument pressed here fails (references omitted, paras. 70-71).

Wu’s and Huynh’s appeals were dismissed.