R v Pietz, 2025 MBCA 5
[34] We start our analysis with what the Supreme Court has clearly identified as the purpose of section 10(b) of the Charter.
[35] In R v Lafrance, 2022 SCC 32 [Lafrance], Brown J stated that the purpose of section 10(b) is to “provide a detainee with an opportunity to obtain legal advice relevant to his legal situation” (at para 70, quoting Sinclair at para 24). This entails allowing “the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights” (Lafrance at para 70, quoting Sinclair at para 26; see also R v Manninen, [1987] 1 SCR 1233 at 1242-43, 1987 CanLII 67 (SCC)). In the context of a custodial interrogation, section 10(b) “seeks ‘to support the detainee’s right to choose whether to cooperate with the police investigation or not, by giving him access to legal advice on the situation [they are] facing’” (Lafrance at para 70, quoting Sinclair at para 32).
[36] In R v Dussault, 2022 SCC 16, the Supreme Court endorsed Doherty JA’s description of the right to counsel as a “‘lifeline’ through which detained persons obtain legal advice and ‘the sense that they are not entirely at the mercy of the police while detained’” (at para 56, quoting R v Rover, 2018 ONCA 745 at para 45). Similarly, in R v Brunelle, 2024 SCC 3, O’Bonsawin J, for a unanimous Court on this point, wrote that the purpose of section 10(b) “is to protect any person whose detention puts them in a situation of vulnerability relative to the state” (at para 81).
[37] In Sinclair, the Supreme Court suggested that, absent a change in circumstances, section 10(b) is satisfied by an initial warning coupled with a reasonable opportunity to consult counsel. However, sometimes, an accused is entitled to a second consultation with counsel. Sinclair at para 65 described the general principle as follows:
What is required is a change in circumstances that suggests that the choice faced by the accused has been significantly altered, requiring further advice on the new situation, in order to fulfill the purpose of s. 10(b) of providing the accused with legal advice relevant to the choice of whether to cooperate with the police investigation or not.
[38] Further, the Court stated that “[t]he failure to provide an additional opportunity to consult counsel will constitute a breach of s. 10(b) only when it becomes clear, as a result of changed circumstances or new developments, that the initial advice, viewed contextually, is no longer sufficient or correct” (ibid at para 57).
[39] The constitutional right to a second consultation with counsel will generally only arise where there has been “a material change in the detainee’s situation after the initial consultation” (ibid at para 43). Sinclair identified three categories of such circumstances, noting that the categories are not closed (see paras 2, 49).
[40] On the facts of the present case, only the first category is relevant: “a non-routine procedure that would not generally fall within the expectation of the advising lawyer at the time of the initial consultation” (decision at para 60). For completeness, we note that the second category is where there is a change in jeopardy, such as where an investigation takes a new and more serious turn, which may arise where the detainee is arrested for one charge and, as the investigation continues, it is determined that he is a suspect in a more serious charge (see ibid at para 61). The third category is where there is a reason to question the detainee’s understanding of his right to counsel. The trial judge correctly concluded that there was no change in jeopardy to the accused following his arrest, and she made no error in dismissing the accused’s contention that he did not understand his right to counsel.
[41] Sinclair provides guidance as to what is considered a non-routine procedure. The Supreme Court stated (ibid at para 50):
Non-routine procedures, like participation in a line-up or submitting to a polygraph, will not generally fall within the expectation of the advising lawyer at the time of the initial consultation. It follows that to fulfill the purpose of s. 10(b) of providing the detainee with the information necessary to making a meaningful choice about whether to cooperate in these new procedures, further advice from counsel is necessary . . ..
[42] In R v Briscoe, 2015 ABCA 2 [Briscoe], the Alberta Court of Appeal provided additional commentary on what is a non-routine procedure. Justice Watson stated that a second consultation is required in “some special form of evidence gathering situation which significantly differs from what counsel could be reasonably expected to have told the detainee about” (ibid at para 48). He also stated (ibid at paras 45, 48):
It would really depend on the facts whether in a particular situation the investigative step is “new”.
Such new procedures would not be aspects of the predictable police questioning, but would be matters for which the detainee’s participation is essential and for which the detainee would have a right to decline participation or at least a right to understand what is involved before participating.
[43] Generally, courts have been hesitant to expand the recognition of non-routine procedures. In addition to the polygraph tests and police line-ups mentioned in Sinclair, other cases have identified the following as non‑routine: a penile swab search for DNA of a complainant in a sexual assault allegation (see R v Johnson, 2016 ONSC 3947 at para 168), and a request for an accused’s cellphone password (see R v Azonwanna, 2020 ONSC 5416 at para 156). As described in Briscoe at para 48, these are techniques that seek evidence beyond simply a statement from an accused and which require their consent or participation.
[44] On the other hand, many post-arrest or detention police procedures are considered to be routine and do not trigger the right to a second consultation with counsel. These include interrogation, performing a pat‑down or safety search, photographing a detainee, swabbing their fingers, asking to see their hands, seizing evidence found on their person, including their clothing, and participating in a re-enactment (see Davin Michael Garg & Anil Kapoor, Criminal Law Series: Detention, Arrest, and the Right to Counsel, ed by Brian H Greenspan & Vincenzo Rondinelli, vol 17 (Toronto: Emond Montgomery, 2025); R v Madison, 2022 ONSC 1749 at para 84; Renaud c R, 2022 QCCS 767 at para 63; R v Ashmore, 2011 BCCA 18 [Ashmore]).
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