R. v. Bhander, 2012 BCCA 441
Section 10(b) of the Charter
[28] Section 10(b) of the Charter provides:
10. Everyone has the right on arrest or detention
...
(b) to retain and instruct counsel without delay and to be informed of that right; ...
[29] Mr. Bhander contends that the judge’s appreciation of the extent of his s. 10(b) rights was overly narrow, and that the decision of the Supreme Court of Canada upholding this court in R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, ante-dating the judge’s ruling, admits of a shift in the jurisprudence such that her conclusion is in error. He says that the charge of first degree murder and remand into custody resulted in an “objectively observable” change in circumstances, as referred to in Sinclair, such that he had a right to re-consult a lawyer. If that is not so, he says, repeating the description of the law provided by Justices LeBel and Fish in their dissent in Sinclair, the “Oickle and the Singh-Sinclair squeeze” is complete.
[30] Crown counsel, on the other hand, submits that the judge did not demonstrate a misapprehension of the law on the “right to re-consult”. Relying upon Sinclair, and two decisions released with it, R. v. McCrimmon, 2010 SCC 36, [2010] 2 S.C.R. 402, and R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, elaborating upon the nature and limits of the right to counsel under s. 10(b), Crown counsel says there is no general right to more than the initial consultation with counsel. The Crown further submits the concept of a right to re-consult only arises where the underlying purpose behind s. 10(b) has not been met, that is, the circumstances do not demonstrate the accused could make an informed choice to speak to the police. An informed choice entails a general appreciation of the jeopardy faced, and an operating free will.
[31] This issue is answered, in my view, by considering the progression of cases from Hebert to R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, and to Sinclair, McCrimmon and Willier. The foundational case is Hebert referred to by the judge in her ruling. In Hebert, the Supreme Court of Canada discussed confessions and the Charter right to silence at pp. 176-7:
The scheme under the Charter to protect the accused's pre-trial right to silence may be described as follows. Section 7 confers on the detained person the right to choose whether to speak to the authorities or to remain silent. Section 10(b) requires that he be advised of his right to consult counsel and permitted to do so without delay.
The most important function of legal advice upon detention is to ensure that the accused understands his rights, chief among which is his right to silence. The detained suspect, potentially at a disadvantage in relation to the informed and sophisticated powers at the disposal of the state, is entitled to rectify the disadvantage by speaking to legal counsel at the outset, so that he is aware of his right not to speak to the police and obtains appropriate advice with respect to the choice he faces. Read together, ss. 7 and 10(b) confirm the right to silence in s. 7 and shed light on its nature.
The guarantee of the right to consult counsel confirms that the essence of the right is the accused's freedom to choose whether to make a statement or not. The state is not obliged to protect the suspect against making a statement; indeed it is open to the state to use legitimate means of persuasion to encourage the suspect to do so. The state is, however, obliged to allow the suspect to make an informed choice about whether or not he will speak to the authorities. To assist in that choice, the suspect is given the right to counsel.
[32] In Singh, the Supreme Court of Canada addressed the issue of the right to silence in circumstances of an accused who was advised of his right to counsel under s. 10(b), who had privately consulted counsel, and who stated on numerous occasions to police questioning him that he did not want to speak to them. In holding that police are not precluded from seeking, in a legitimate way, to persuade the accused to speak, Justice Charron for the majority said:
[45] ... The Court in Hebert stressed the importance of achieving a proper balance between the individual’s right to choose whether to speak to the authorities and society’s interest in uncovering the truth in crime investigations. As I stated earlier, the suspect may be the most fruitful source of information. While the fact of detention unquestionably triggers the need for additional checks on police interrogation techniques because of the greater vulnerability of the detainee, the moment of detention does nothing to reduce the suspect’s value as an important source of information. Provided that the detainee’s rights are adequately protected, including the freedom to choose whether to speak or not, it is in society’s interest that the police attempt to tap this valuable source. ...
[Emphasis added.]
[33] More recently, in Sinclair, the Supreme Court of Canada addressed s.10(b) rights in the context of an accused who was advised of his right to counsel, spoke to a lawyer, stated on a number of occasions in questioning that he had nothing to say on the matter, and stated he wished to speak to his lawyer again. In their reasons for the majority, Chief Justice McLachlin and Justice Charron rejected the submission that Mr. Sinclair’s rights had been violated by police refusal to allow him to consult his lawyer again, summarizing their conclusion early in their reasons for judgment:
[2] We conclude that s. 10(b) does not mandate the presence of defence counsel throughout a custodial interrogation. We further conclude that in most cases, an initial warning, coupled with a reasonable opportunity to consult counsel when the detainee invokes the right, satisfies s. 10(b). However, the police must give the detainee an additional opportunity to receive advice from counsel where developments in the course of the investigation make this necessary to serve the purpose underlying s. 10(b) of providing the detainee with legal advice relevant to his right to choose whether to cooperate with the police investigation or not. To date, this principle has led to the recognition of the right to a second consultation with a lawyer where changed circumstances result from: new procedures involving the detainee; a change in the jeopardy facing the detainee; or reason to believe that the first information provided was deficient. The categories are not closed.
They explained:
[53] The general principle underlying the cases discussed above is this: where a detainee has already retained legal advice, the implementational duty on the police under s. 10(b) includes an obligation to provide the detainee with a reasonable opportunity to consult counsel again where a change of circumstances makes this necessary to fulfill the purpose of s. 10(b) of the Charter of providing the detainee with legal advice on his choice of whether to cooperate with the police investigation or decline to do so.
[54] The cases thus far offer examples of situations where the right of another consultation arises. However, the categories are not closed. Where the circumstances do not fall into a situation previously recognized, the question is whether a further opportunity to consult a lawyer is necessary to fulfill s. 10(b)’s purpose of providing the detainee with advice in the new or emergent situation.
[55] The change of circumstances, the cases suggest, must be objectively observable in order to trigger additional implementational duties for the police. It is not enough for the accused to assert, after the fact, that he was confused or needed help, absent objective indicators that renewed legal consultation was required to permit him to make a meaningful choice as to whether to cooperate with the police investigation or refuse to do so.
And further:
[64] ... we take the settled view to the effect that the right to counsel is essentially a one-time matter with few recognized exceptions, ....
[65] We conclude that the principles and case-law do not support the view that a request, without more, is sufficient to retrigger the s. 10(b) right to counsel and to be advised thereof. 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. Police tactics short of such a change may result in the Crown being unable to prove beyond a reasonable doubt that a subsequent statement was voluntary, rendering it inadmissible. But it does not follow that the procedural rights granted by s. 10(b) have been breached.
[Emphasis added.]
[34] McCrimmon likewise involved a case in which the accused, properly advised of his right to counsel and having spoken to a duty counsel, but not the lawyer of his choice, requested further consultation with counsel during the course of questioning. In rejecting his submission that the denial of his request breached his s. 10(b) rights, the majority held:
[21] In Sinclair, we explained that a single‑occasion rule for consulting counsel will not always fulfill the purpose of s. 10(b). A principled and purposive interpretation of the s. 10(b) right to counsel requires that detainees should be able to speak to a lawyer again during the course of a custodial interrogation where “a change of circumstances makes this necessary to fulfill the purpose of s. 10(b) of the Charter of providing the detainee with legal advice on his choice of whether to cooperate with the police investigation or decline to do so”: Sinclair, at para. 53. While we noted in Sinclair that the categories of situations in which a change in circumstances triggers a detainee’s right to consult with counsel again are not closed, we did identify three situations currently recognized in which s. 10(b) requires a renewed right to consultation with counsel: new procedures involving the detainee; a change in the jeopardy facing the detainee; or reason to believe the first information provided was deficient. The question then becomes whether, in this case, there was a change of circumstances of this nature that made it necessary to provide Mr. McCrimmon with a further opportunity to consult with counsel to fulfill the purpose of s. 10(b).
[Emphasis added.]
[35] The Supreme Court of Canada again applied this approach in Willier, a case concerning the discrete issue of counsel of choice.
[36] To these several authorities should be spliced the proposition that it is sufficient if the accused understands “generally” the sort of jeopardy he faced: R. v. Smith, 1991 CanLII 91 (SCC), [1991] 1 S.C.R. 714, 63 C.C.C. (3d) 313. From these cases, one may say that when a detainee has availed himself of the opportunity to consult counsel, and has received proper advice, he is not entitled to re-consult counsel absent a change in circumstance such as would trigger a renewed right of consultation, considering the purpose of the right as explained in the above cases.
[37] Taking this jurisprudence to the case before us, the issue is that addressed by the judge: was there a change in circumstances of a nature that required a further opportunity to consult with counsel? This reduces to four considerations: was there a change in jeopardy; were there new procedures involving the detainee; is there a reason to believe the first information provided by counsel to the detainee was deficient; and if none of these apply, is this the sort of case that engages the right to re-consult in any event – that is, does the case engage the purposes of s. 10(b) so as to justify a right to re-consult (i.e., a new category)? This issue is to be answered on an objective standard, and thus is a question of law.
[38] Two aspects of the developing events, individually and together, are said to amount to such change of circumstance engaging a right to re-consult: first, that Mr. Bhander was formally charged with first degree murder on Saturday, after he received legal advice; and second, that Mr. Bhander was remanded by a Judicial Justice of the Peace with the result that his detention thereby came under court supervision rather than police supervision.
[39] In Mr. Bhander’s submissions to us, and during the voir dire in the evidence which the parties ultimately agreed should not be considered by the judge (because the content of the legal advice may be a matter of privilege which Mr. Bhander had not waived), it was said that the laying of the charge itself was a changed circumstance that could affect the content of legal advice so as to trigger a renewed right of consultation. For example, the expectation of being charged or released within 24 hours was replaced with the knowledge Mr. Bhander would be detained on the count of murder, and it was submitted this required different legal advice. In making this submission, Mr. Bhander refers to the dissenting opinion of Justice Binnie in Sinclair, and relies not only upon Mr. Bhander’s single request to speak to counsel but also his counsel’s requests to speak to him. He says if the narrow view of s. 10(b) is adopted, “it would make no difference ... whether [his counsel] camped outside”, contrary to the tenor of comments in R. v. Ertmoed, 2002 BCSC 806 at para. 39 and R. v. Pickton, 2006 BCSC 995 at para. 288.
[40] The issue here is Mr. Bhander’s rights, and not his lawyer’s rights. Did these circumstances require the police to allow Mr. Bhander a second consultation with his counsel, either before or after the remand hearing? Without knowing the content of Mr. Bhander’s initial legal advice (as to which Mr. Bhander was entitled to assert solicitor-client privilege), the issue is presented somewhat in the abstract. The judge was required to do the best she could on the evidence before her. In rejecting Mr. Bhander’s submission, the judge found that Mr. Bhander’s jeopardy in relation to Mr. Bains – a charge of murder – remained the same as upon his arrest. There is, in my view, no error in this conclusion. By itself, the fact Mr. Bhander was charged with first degree murder of Mr. Bains, in circumstances in which he was arrested for murder of Mr. Bains and attempted murder of Ms. Jubbal, does not seem to me to alter or elevate the general nature of the jeopardy faced by Mr. Bhander.
[41] The judge further found that Mr. Bhander demonstrated his understanding of his right to silence throughout his interviews, up to and including the end of the confession interview on Sunday evening. The judge also found that Mr. Bhander demonstrated he understood that in speaking, he was not following the legal advice he had received from his lawyer. That is, the judge found there was no indication the information provided to Mr. Bhander was deficient. These conclusions are amply supported by the transcripts of the interactions between the police and Mr. Bhander, including, importantly, the transcript of his remarks after he made the statement in issue.
[42] Nor was there a new procedure similar to the cases referred to by the Supreme Court of Canada, such as a line-up or a polygraph test, that would cast any doubt on Mr. Bhander’s appreciation of his right to silence, or require different legal advice about his choice to speak to police so as to create a renewed right to consult counsel. It might be said that Mr. Bhander may have had a change in his detention expectations once a charge was laid, but this possibility does not support a renewed right to consult, in my view. Not only is that possibility mere speculation, but also any expectation of the time during which he may be detained is unrelated to an understanding of his right to silence. This is especially so given the time constraints in the Criminal Code requiring either release or the laying of charges, and the judicial process that is engaged immediately upon the laying of charges.
[43] In this case, there is no basis in the evidence upon which to conclude that the fact of the charge affected Mr. Bhander’s understanding of his right to silence or the operation of his free will. Nor is there reason to consider that the legal advice he received was deficient in any way.
[44] Mr. Bhander also contends the fact he was remanded is a changed circumstance within the meaning of Sinclair, and that upon his remand he had a re-newed right of consultation because he was freshly detained by police who were “both jailors and investigators”. The remand order, he says, demonstrates that there were reasonable and probable grounds for charging him, as demonstrated by the information sworn to before an impartial judicial officer.
[45] As earlier noted, the judge, having heard the evidence, concluded that Mr. Bhander understood his right to silence, understood his jeopardy in respect to a charge of murder, and freely chose to make the statement in issue. The fact of the remand order did not change Mr. Bhander’s jeopardy from that for which he was arrested. The record contradicts any possibility that Mr. Bhander misunderstood his right to silence, and the remand order is not a “new procedure involving the detainee”, as contemplated by the category posited by the Supreme Court of Canada in Sinclair and McCrimmon. Nor is it within the residual “new” category, as there is no room, on the judge’s findings of fact, for a conclusion that the purpose of s. 10(b) had been thwarted, or even eroded, by the making of the remand order. Notwithstanding the submissions strongly advanced on behalf of Mr. Bhander, I see no error of law in the judge’s conclusion on this issue.
[46] In my view, the judge applied the correct principles in relation to s. 10(b) in the circumstances of the case, and there is no basis upon which to interfere with her conclusions on this issue.
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