Questioning an accused in the absence of counsel

Yesterday's Court of Appeal decision in R. v. Woods, 2008 ONCA 713 considered the confession rule and what the police may do once an accused has consulted counsel.



The short summary is that questioning in the absence of counsel is proper provided the statements made are otherwise free and voluntary.



The Court cited, with apparent approval, the trial ruling of Justice J. Bryan Shaughnessy saying:



[7]               In ruling the statement admissible, the trial judge noted that "there is nothing in the confessions rule which prohibits the police from questioning the accused in the absence of counsel after the accused has contacted or retained counsel."  He also concluded that there was nothing in the manner or duration of questioning that raised an element of oppression and that the appellant willingly volunteered information, even though he knew that he was not required to talk to the police and that he had been advised by counsel not to do so.  The trial judge also recognized that the questions asked by the police were, for the most part, simple and straightforward and appropriate to the appellant's limited cognitive abilities and that there was no police attempt to use aggressive techniques or non-existing or fabricated evidence to elicit answers from the appellant...".