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Right to Know - Limits on the right to counsel

(2012-02-10)

Solomon Friedman: Limits imposed on the right to counsel give police too much control

OTTAWA — In our previous column, we discussed the right to silence, its limitations and the role it plays in the context of a police interrogation. The right to silence, however, is incomplete without its legal Siamese twin: the right to counsel.

These two rights, Justice Morris Fish of the Supreme Court famously wrote, “are close companions, like glove and hand.”

Through the course of the “Right to Know” series thus far, it has most likely become apparent that our rights and freedoms are complex, nuanced and often difficult to apply to any given situation.

Individuals, particularly those in stressful situations — such as under arrest or police interrogation — need assistance in understanding and asserting their constitutional rights. That’s the role of legal counsel.

The Charter of Rights guarantees that everyone has the right, upon arrest or detention, “to retain and instruct counsel without delay.”

The courts have found there are two key components to the constitutional right to counsel.

First, the police have an obligation to inform the detainee of the right to counsel as soon as possible. However, simply informing an individual who is under arrest that they have the right to contact a lawyer is fairly meaningless, as the detainee is usually under the control of the arresting officer, without easy access to a telephone or other means of communication.

Accordingly, the second obligation on police is to facilitate the implementation of the right to counsel by providing a detained person with the means to contact counsel. In many jurisdictions, this may include providing a list of local defence lawyers or informing the detainee about the existence of free Legal Aid “duty counsel” phone numbers.

In addition, the police need to provide sufficient privacy, so the individual in custody can speak candidly with his lawyer and receive advice accordingly.

Moreover, the police are obliged — to the extent that it is possible — to put the detainee in contact with his or her counsel of choice.

The right to counsel is not without limits, however.

First of all, the Supreme Court has ruled that defence lawyers are not entitled to be present during police interrogations. Practically speaking, that means that, once the phone call with counsel ends, the lawyer will not be able to assist the detainee during the coming interrogation.

Once again, Canadians with Law & Order-influenced expectations may have visions of their defence lawyer leaning in during an aggressive police interrogation and exclaiming, “That’s it! My client is not answering any more questions!” In Canada, such a scene remains firmly in the realm of fiction.

This is somewhat incongruous. An accused person is entitled to legal representation, in court and elsewhere, through every stage of the criminal proceeding. However, during a police interrogation, when a detainee may make a statement that can ultimately decide the outcome of his criminal charges, he is denied that crucial right to representation.

Secondly, the courts have ruled that a detainee is generally only entitled to a single consultation with counsel before undergoing a police interrogation.

In other words, when a detainee asks, in the middle of police questioning, to speak with his lawyer again, the police have no obligation to provide an additional consultation. The courts have ruled that, absent some material change in jeopardy — such as new charges — detainees are limited to a single, preliminary conversation with counsel.

This is problematic for several reasons.

First, as readers of this column are now aware, the police are absolutely entitled to resort to trickery and deception during an interrogation. They can, and do, confront detainees with concocted evidence and imaginary witnesses.

Given the extreme latitude granted to police, it is surprising that a detainee is not permitted, during an interrogation, to seek clarification with counsel. After all, it is reasonable to expect that someone who has been confronted with shocking evidence (particularly false evidence) will need to speak to an experienced and objective legal adviser.

Second, when a lawyer is first put in contact with the detainee, the police usually only provide very limited information about the anticipated charges and the circumstances of the arrest. Therefore, a lawyer is correspondingly limited in his or her ability to provide situation-specific legal advice.

As more information is revealed to the detainee during the course of the interrogation, he will need to re-consult counsel in order to receive targeted and accurate legal advice. Under the “one consultation regime,” that is all but impossible.

If ordinary citizens are expected to understand and assert their legal rights in the face of relentless police questioning, they cannot do so without the assistance and guidance of legal counsel. By denying counsel the ability to be present, or even to offer legal advice from afar, the balance of power shifts irreversibly in favour of the police.

When it comes to the right to consult legal counsel, “one and done” is simply insufficient.

Solomon Friedman is a criminal defence lawyer with Edelson Clifford D’Angelo LLP. He can be reached at solomon@edelsonlaw.ca or 613-237-2290. Follow Solomon at Twitter.com/firearmslaw.

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