R. v. A.R.M., 2011 ABCA 98
[37] The trigger in most “re-advice” cases is the changed nature of his legal jeopardy when the detainee is deciding as to whether or not to contact counsel, viz. what Bartle called “meaningful choices”: para. 21. In R. v. Paternak, 1996 CanLII 147 (SCC), [1996] 3 S.C.R. 607, 110 C.C.C. (3d) 382 at para. 1: “..... the appellant should have been rewarned concerning his right to counsel when there was a substantial change in his jeopardy. This occurred when the police officer concluded that the appellant had committed the offence and advised the appellant accordingly.” The respondent’s meaningful choice was whether, in light of the escalation of his jeopardy, he might avail himself of the free and immediate legal aid advice that he was told (not long before) was even available to him on a much lesser charge. From what he said to Draganiuk, the respondent did not think he needed to talk to counsel, even in light of the escalation of his jeopardy, even though Draganiuk suggested it.
[38] The actuating concerns for re-advice may differ. So the content of the re-advice may differ. In Sinclair at paras. 50 to 52 McLachlin CJC and Charron J provide three main examples of concerns which militate in favour of re-advice: (a) new procedures, (b) change in jeopardy, and (c) reason to question understanding. The content of the re-advice in each such instance should be relevant to the concern and be “necessary to fulfill the purpose of s. 10(b) of the Charter”. There may be multiple occasions during the same or related periods of interaction between a detainee and a state agent. The purpose of s. 10(b) of the Charter would not necessarily be defeated if the mantra of s. 10(b) advice is not repeated by rote. If, for example, the detainee responds to the first Charter advice by saying “where is phone room?” the officer need not repeat the entire instruction and would show him the room.
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