Importance of Right to Counsel

The Charter‘s right to counsel under s. 10(b) is an often misunderstood and confused right by many members of the public. This confusion likely emerges from unintentional analogies to the commonly cited American case Miranda v. Arizona, 86 S. Ct. 1602 (1966) in television and movies.

The Court did adopt elements that mirrored Miranda rights in the early Charter case of R. v. Brydges, 1990 CanLII 123 (SCC). The Court found that s. 10(b) meant that police have a duty to informed individuals who are detained or arrested of their right to retain and instruct counsel, and also the right to gain access to counsel. The Canadian application in some ways is more broad, extended to those detained for the purposes of a breath test, and is also subject to more discretionary exclusionary rules under s. 24(2).

What this right does not constitute is an automatic right to have a lawyer present when being questioned by the policy. The Court’s interrogation trilogy of Oickle, Singh and Sinclair informed the scope of procedural protections during police interrogations, and balanced the important principles behind voluntariness, the right to silence, and the right to counsel.

The right to counsel is not an absolute right, as with Miranda, and counsel do not need to be present during interrogations. The right to silence in Canada is not absolute, and the right to counsel is not necessarily a continuous one.

From a practical perspective, this means that many police interrogations do occur without counsel present, even when an accused as requested it. In the absence of improper inducements, threats, or oppressive conditions, and even where an accused has repeatedly requested counsel, may not result in a s. 10(b) breach. The right to additional counsel may also be limited after an initial consultation.

The misunderstandings around these rights understandably result in cases of criminally accused providing a statement or confession which they subsequent recant, or later state it was provided due to their inability to properly consult counsel. The repeated inquiries by police, often while an accused awaits their first conversation with a lawyer, often results in a statement being made without that access to counsel

The Supreme Court recently released a new s. 10(b) decision in R. v. Dussault, 2022 SCC 16 (CanLII), which further clarifies and extends the scope of this right. In this case, the accused was charged with murder and arson, and was informed of his s. 10(b) rights. He was sentenced to life imprisonment for second degree murder,

While the accused spoke to a lawyer on the phone on arrest, the lawyer believed he did not understand the instructions. The lawyer spoke to the accused and the officers, and everyone agreed that the lawyer would come to the station to speak to the accused directly.

The Court has interpreted s. 10 rights generally together. A person needs to know the reasons they are arrested, which is found in s. 10(a), in order to be able to receive proper instructions from counsel under s. 10(b). For example, if an accused is so intoxicated that they are incapable of understanding instructions, s. 10(b) rights may be infringed.

The Court stated in R. v. Evans,

The right to be promptly advised of the reason for one’s detention embodied in s. 10(a) of the Charter is founded most fundamentally on the notion that one is not obliged to submit to an arrest if one does not know the reasons for it: R. v. Kelly (1985), 1985 CanLII 3483 (ON CA), 17 C.C.C. (3d) 419 (Ont. C.A.), at p. 424. A second aspect of the right lies in its role as an adjunct to the right to counsel conferred by s. 10(b) of the Charter. As Wilson J. stated for the Court in R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138, at pp. 152-53, “[a]n individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy”. In interpreting s. 10(a) in a purposive manner, regard must be had to the double rationale underlying the right.

In Dussault, the accused asked for counsel while the police proceeded to interrogate him. He was told by the police that his lawyer was not at the station, while the lawyer was indeed there, but kept waiting. The lawyer had already instructed him not to speak until he arrived, but given the delay the accused proceed anyhow.

Despite these unique facts, the trial judge concluded that there was a reasonable opportunity to consult counsel. The unanimous Court found that it did not, but based on different reasons than the Court of Appeal.

The trial judge held a voire dire to exclude the accused’s statement on the basis of ss. 7, 10(a), and 10(b), but held that he had exercised his right to counsel. The lawyer had adequately explained the right to silence, the accused understood this explanation, and he did not mention to the police that he did not understand his rights.

The Court of Appeal found this was not a complete conversation with counsel, based on Stevens c. R., where an accused spoke to a civil lawyer and was denied the opportunity to speak to a criminal lawyer, even though one was recommended. The Court in that case stated,

[26] The purpose of the right to counsel is “to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights”: R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, at pp. 1242-43. The emphasis, therefore, is on assuring that the detainee’s decision to cooperate with the investigation or decline to do so is free and informed. Section 10(b) does not guarantee that the detainee’s decision is wise; nor does it guard against subjective factors that may influence the decision. Its purpose is simply to give detainees the opportunity to access legal advice relevant to that choice.

This resulted in a denial of s. 10 (b) rights due to access to effective counsel. The Court of Appeal found that the police deliberately frustrated the continuation of the consultation, which the accused expected to continue in person.

The Court did not opine on whether the phone conversation was a complete consultation, but did not adopt the Court of Appeal’s characterization of police conduct. Instead, it based its decision on the principles in Sinclair alone, where there is a right to a second opportunity for consultation where there are factors that undermine the initial consultation.

Police are not able to belittle, question competency, or the trustworthiness of counsel to an accused. The Court in R. v. Burlingham found that these practices have the express goal or effect of undermining the accused’s confidence and the relationship with defence counsel, and breaches s. 10(b). Police may also undermine this relationship unintentionally, which may occur when they provide their own commentary on any legal advice obtained. These tactics do not fall within the scope of police doing their job.

Courts look at the observable effects of police conduct, not the conduct itself,

[45] Simply put, the purpose of s. 10(b) is to provide the detainee with an opportunity to obtain legal advice relevant to their legal situation. As noted earlier, the legal advice is intended to ensure that “the detainee’s decision to cooperate with the investigation or decline to do so is free and informed”. The legal advice received by a detainee can fulfill this function only if the detainee regards it as legally correct and trustworthy. 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. Police conduct of this sort is properly said to “undermine” the legal advice that the detainee has received. If there are objectively observable indicators that the legal advice provided to a detainee has been undermined, the right to a second consultation arises. By contrast, the right to reconsult will not be triggered by legitimate police tactics that persuade a detainee to cooperate without undermining the advice that they have received. As Sinclair makes clear, police tactics such as “revealing (actual or fake) evidence to the detainee in order to demonstrate or exaggerate the strength of the case against him” do not trigger the right to a second consultation with counsel: para. 60.

By grounding their decision in Sinclair, the Court is effectively reiterating the position stated in that case,

[42] 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.

The Court in Sinclair questioned the effectiveness of Miranda-type protections in the interrogation process, noting that they were frequently waived, while still noting that the legislature may choose to introduce such measures. More recent studies seem to confirm these observations, with these rights broadly misunderstood or forgotten by detainees. These problems include a mistaken belief that cooperation would lead to positive outcomes, or that compliance with police requests were mandatory.

The Washington Post noted of the 50th anniversary of Miranda that it was widely unpopular at the time of its decision, and broadly opposed by law enforcement. While it may have impacted popular opinion about how police should conduct interviewed, it may not have accomplished what the court has intended. Individuals are responsible for their actions, including voluntary confessions, and ignorance of any legal rights is not itself a defence.

In this way, both the Canadian and American justice systems share similarities, despite their differences in interrogation laws. Interviews and interrogations are a necessary part of any police investigation, but individuals do not need to comply with these. The constitutional rights that inform these processes are only useful if the public is aware of them and understand them prior to the interview occurring.

What that requires is more than a rote-type recitation of rights, as is found in television and media, including better insight into how the justice system functions, and how effective assistance of counsel can protect against wrongful convictions or disproportionate sentences.