Upon detention by the state, a detainee has the right to retain and instruct a lawyer without delay, and the right to be informed of that right – “the single most important organizing principle in criminal law”.
Last month in Ottawa, the Supreme Court, in R. v. Lafrance, was called on to determine the extent of the protection of that right, furnished by s. 10(b) of the Charter, and to clarify when detention crystallizes.
In Lafrance, a 19 year-old, Indigenous man awoke to several armed, armoured officers knocking on his bedroom door, demanding that he return to the station with them one morning in 2015. He was not under arrest. He eventually confessed to killing somebody while under the pressure of a lengthy interrogation that ensued at the station. The evidence of his confession was admitted at trial and the accused was convicted. In their ruling on the admissibility of the confession, the trial judge determined the accused had not, in fact, been detained. The Court of Appeal of Alberta allowed his appeal, excluded the evidence, and ordered a new trial. And the Supreme Court then confirmed that decision and dismissed the Crown appeal.
The circumstances giving rise to the encounter, the nature of the police conduct, and the particular characteristics or circumstances of the detainee in Lafrance all supported the fact that he had been detained by police at his house, and throughout his interactions with them. In finding as much, Brown J., writing for the Supreme Court majority, affirmed that the implementational component of s. 10(b) ensures a detainee a second opportunity to speak with counsel if a change in circumstances makes it clear that more consultation would be needed “to allow the detainee not only to be informed of [their] rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights”.
Even after speaking with duty counsel, there was reason to question the accused’s understanding of his s. 10(b) rights in Lafrance. The detainee asked officers to speak with his father because, in his view, it was his “only chance of getting a lawyer.” This ought to have alerted the police to their duty to allow him to speak with counsel again. Instead, officers chose to press on with their interrogation. The accused’s request could have meant two things: i) that he incorrectly interpreted the legal advice he received from duty counsel; or ii) that he had received “bad advice.” Either way, the evidence showed that he was in no position to exercise his right to silence or to make an informed decision about whether and how to cooperate with the authorities.
The problem, the Supreme Court majority explained, is that the purpose of s. 10(b) is “to mitigate the imbalance between the individual and the state” by providing detainees with access to personalized advice that they can understand and that contemplates the actual situation in which they find themselves.
To be sure, the police understand the detainee’s right to choose whether to speak to them and they employ developed investigative tactics to wring every drop of evidence from a detainee who does not assert their right to silence.
In the wake of the decision in Lafrance, it is clear that detainees need to understand that right too. It is not enough that they are told that they can leave the police at any time, and it is not enough to have a conversation they don’t understand with duty counsel. If there is doubt as to whether they have understood their rights or received good legal advice; if the police procedures become “non-routine” as they develop; or if the detainee faces a change in jeopardy, s. 10(b) demands that police provide the detainee with another opportunity to speak with a lawyer.
This is something we have always known at AGP, it doesn’t matter where or when you are arrested, we will always answer the phone when you call.