R v C.L, 2023 SKCA 58
[23] Section 10(b) of the Charter provides that “[e]veryone has the right, on arrest or detention … to retain and instruct counsel without delay and to be informed of that right”. The purpose of s. 10(b) is to provide detainees with “an opportunity to contact counsel in circumstances where they are deprived of liberty and in the control of the state, and thus vulnerable to the exercise of its power and in a position of legal jeopardy” (R v Willier, 2010 SCC 37 at para 28, [2010] 2 SCR 429 [Willier]). In this way, the protection offered by s. 10(b) ensures that detainees understand how to exercise their rights and are able to make choices about whether to speak to the police that are both free and informed (R v Sinclair, 2010 SCC 35 at paras 25-32, 259 CCC (3d) 443 [Sinclair]; R v Hebert, 1990 CanLII 118 (SCC), [1990] 2 SCR 151 at 176; R v Lafrance, 2022 SCC 32 at para 71, 416 CCC (3d) 183 [Lafrance]).
[24] When a person is detained or arrested, s. 10(b) imposes three defined, positive duties on the police:
(a) to inform the detainee of their right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;
(b) if the detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent or dangerous circumstances); and
(c) to refrain from eliciting evidence from the detainee until the detainee has had that reasonable opportunity.
The first of these duties is informational in nature. The second and third duties are implementational and are only triggered when the detainee indicates a desire to exercise their right to counsel (Willier at paras 29–30; R v Bartle, 1994 CanLII 64 (SCC), [1994] 3 SCR 173 at 192 [Bartle]; R v Ector, 2018 SKCA 46 at paras 41–42, 362 CCC (3d) 462 [Ector]).
[25] The right to counsel is not absolute; a detainee bears some responsibility where its exercise is concerned. In Bartle, the Supreme Court held that “[u]nless a detainee invokes the right and is reasonably diligent in exercising it, the correlative duty on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended” (at 192). The right to counsel may also be waived, but any waiver must be clear and unequivocal, and it must be premised on proper information; “a person who waives a right must know what he or she is giving up” (R v Prosper, 1994 CanLII 65 (SCC), [1994] 3 SCR 236 at 275; Bartle at 192; R v Cobham, 1994 CanLII 69 (SCC), [1994] 3 SCR 360 at 370–371; and R v L.T.H., 2008 SCC 49 at para 41, [2008] 2 SCR 739).
[26] The circumstances of C.L.’s case implicate the conduct of the police at the informational stage. The information component of s. 10(b) is crucial and requires police officers to explain the right to counsel to detainees in a timely and comprehensible manner because, as observed in Bartle, “[u]nless they are clearly and fully informed of their rights at the outset, detainees cannot be expected to make informed choices and decisions about whether or not to contact counsel and, in turn, whether to exercise other rights, such as the right to silence” (at 193, emphasis in original).
[27] The informational component of s. 10(b) has been described as one that is “relatively straightforward” (Willier at para 31), and it will usually not be difficult to for police officers to fulfil their duty at this stage. Generally speaking, a standard police caution that informs the detainee that they have the right to seek and receive legal advice immediately and free of charge will suffice, “absent special circumstances indicating that a detainee may not understand the s. 10(b) caution, such as language difficulties or a known or obvious mental disability” (Bartle at 193).
[28] However, where there are circumstances that raise a question about whether the detainee understands the information conveyed to them concerning the right to counsel, more may be required of the police. It is settled law that, where a detainee positively indicates that they do not understand their right to counsel, “the police cannot rely on a mechanical recitation of that right and must facilitate that understanding” (Willier at para 31). The reason for this is obvious because, as noted in R v Evans, 1991 CanLII 98 (SCC), [1991] 1 SCR 869 at para 891 [Evans], “[a] person who does not understand [their] right to counsel cannot be expected to assert it”.
[29] Of course, this does not require that police officers be mind readers. Nor does it call upon them to thoroughly probe a detainee’s understanding of the right to counsel in every case. It will only be necessary to take further steps at the informational stage to address a detainee’s misunderstanding or lack of understanding of the right to counsel where there is a clear communication to that effect by the detainee, or where other objective factors signal confusion or misunderstanding on the detainee’s part (R v Dunford, 2017 SKCA 1 at para 27, 345 CCC (3d) 374. See also: Evans at 891; Bartle at 192–194; and Sinclair at para 55). Put another way, where there is something about the circumstances, viewed objectively, that positively indicates a possible lack of comprehension of the right to counsel on the part of the detainee, the police cannot presume that they have satisfactorily fulfilled their duty to inform (R v Magalong, 2013 BCCA 478 at para 28, 305 CCC (3d) 396).
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