[22] The Supreme Court of Canada has set out a framework for analysis of s. 10(b) claims in any number of cases, most recently in the Sinclair trilogy: R. v. Sinclair, [2010] 2 S.C.R. 310; R. v. Willier, [2010] 2 S.C.R. 429; and R. v. McCrimmon, [2010] 2 S.C.R. 402. This line of cases identifies two components of the right to counsel protected by s. 10(b). First, is the informational component; the cases establish what the police must tell the detainee about his right to consult counsel. No complaint is made about the police compliance with this first component. The investigating officer informed the appellant twice about his right to consult counsel immediately and of the availability of duty counsel for that purpose.
[23] The second component of the s. 10(b) right to counsel is the implementation component. This second component requires that the police give the detainee an opportunity to exercise his right to counsel. The courts have held that this second component implies that there is a duty on the police to hold off questioning until the detainee has had a reasonable opportunity to consult with counsel. It was this aspect of the right that apparently was the focus of the argument before the trial judge. As I have said, the trial judge found against the appellant on that issue and that finding was open to him on the evidence. I would not interfere with that decision.
[24] The appellant submits that the second component also implies that in some circumstances the police must ensure that the detainee has actually waived his right to counsel. This may require that the police provide the detainee with further information. One circumstance where the police may be required to provide the detainee with further information is where the detainee initially invokes his right to counsel but, having been unsuccessful in obtaining legal advice, abandons the attempt. In such circumstances, the police must not only inform the detainee of the right to consult counsel again, but of the police obligation to hold off in their questioning until the detainee has had a reasonable opportunity to consult counsel. See R. v. Willier at paras. 31 and 32 and R. v. Prosper, [1994] 3 S.C.R. 236, at p. 274. More generally, in Sinclair, the court clarified the circumstances in which a detainee is entitled to a second opportunity to consult counsel. While the categories are not closed, the three circumstances identified in Sinclair are: (1) where the police seek to resort to non-routine procedures involving the detainee, such as asking the detainee to participate in a line-up; (2) there has been a change in jeopardy because the investigation has taken a new and more serious turn as events unfold; and (3) as events proceed, there is reason to question the detainee's understanding of the right to consult counsel.
No comments:
Post a Comment