Les principes juridiques liés au droit à une 2e consultation avec un avocat

R. v. Ashmore, 2011 BCCA 18

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[67]           In Sinclair, the Chief Justice and Charron J. addressed the question of when a further opportunity to consult with counsel may be required.  They noted that the need for such an opportunity will “generally involve a material change in the detainee’s situation after the initial consultation”:  para. 43.  They referred to the following as examples of when this will commonly arise:

•        New (non-routine) procedures, like participation in a line-up or submitting to a polygraph examination, as these generally will not have been within the contemplation of the lawyer initially consulted:  para. 50;

•        A change in jeopardy, where the investigation takes a new and more serious turn as events unfold:  para. 51;

•        If it appears that a detainee who had waived his or her right to counsel may not have understood those rights:  para. 52; and

•        If the police have effectively undermined the legal advice that a detainee has received:  para. 52.

[68]           In playing the video clip, Inspector Pike did no more than accurately disclose evidence the police had already gathered.  That the police might show Mr. Ashmore evidence, even bogus evidence, was a matter on which Mr. Ashmore had received legal advice, so it cannot be said that what occurred was unanticipated.  However, even if this possibility had not been the subject of legal advice, or the record was silent as to what advice was given, the police practice of disclosing information, be it true or false, to encourage a detainee to talk does not, without more, re-trigger s. 10(b) rights.  As stated in Sinclair (at para. 60):

... the cases thus far do not support the view that the common police tactic of gradually revealing (actual or fake) evidence to the detainee in order to demonstrate or exaggerate the strength of the case against him automatically triggers the right to a second consultation with a lawyer, giving rise to renewed s. 10(b) rights.

See also:  McCrimmon at para. 23.

[69]           As for the re-enactment, Mr. Ashmore’s argument fails at the outset because he was re-advised of his right to consult a lawyer and chose not to do so.  I do not accept his submission that he was confused as to his rights and, therefore, did not clearly and unequivocally waive them.  Inspector Pike was at pains to ensure that Mr. Ashmore did not want to speak with a lawyer again and that his participation in the re-enactment was voluntary.

[70]           There are two additional reasons why I would not accede to this argument.  The first is that I do not consider a re-enactment to be a new (non-routine) procedure that falls outside of the expectations of counsel advising a detainee.  A re-enactment is nothing more than a statement by conduct.  It involves a person demonstrating, rather than simply recounting, how events unfolded.  It can hardly be said, for example, that Mr. Ashmore’s response to “Tell me how you strangled Mr. Sabine” is of a different character than his response to “Show me how you strangled Mr. Sabine”.

[71]           The second reason is that even if a re-enactment could be considered to be a new procedure, a request to participate in one was not a matter on which Mr. Ashmore required further legal advice.  Although Mr. Dumonceaux did not specifically use the word “re-enactment”, he did counsel Mr. Ashmore against participating in a line-up or a lie detector test, and to be aware that the police might ask him to participate in some form of “test” as a ruse to get him to talk.  Given that advice and the strong general admonition Mr. Ashmore received with respect to providing any information to the police, he was in a position to be able to make a meaningful choice about whether to participate in the re-enactment.