Le droit de recourir aux services de l'avocat de son choix et la méprise du suspect quant aux conseils juridiques lui ayant été prodigués due à ses interactions avec les policiers

R v Hunter, 2023 ABCA 201

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Retaining Trial Counsel

[17]           As noted, the trial judge found that the appellant was given access to counsel upon her arrest, and received legal advice. At several times during the interview the appellant asked the constable questions about obtaining counsel to represent her at a future bail hearing or trial. She testified that Mr. Dumonceaux told her “not really to say anything to them and to get ahold of Legal Aid, that I needed to get a lawyer”. She asked Mr. Dumonceaux if he could be her lawyer, but he declined. The police’s implementational duty, however, only extends to providing the detained person with access to counsel on arrest: Sinclair at para. 31; Dussault at para. 32. It does not extend to obtaining counsel for the ultimate trial. The appellant’s inquiries of the police about obtaining trial counsel did not displace the fact that she had consulted counsel on arrest, meaning that there was no breach of her s. 10(b) rights. Repeated requests to speak to counsel do not necessarily revive the right to legal advice, as long as the detained person continues to understand the right to remain silent: R. v McCrimmon, 2010 SCC 36 at paras. 22-24, [2010] 2 SCR 402.

[18]           Thus, while the transcript of the interview shows that the appellant expressed a continuing interest and concern about retaining counsel to represent her at trial, that was collateral to her s. 10(b) right to retain and instruct counsel upon being arrested. She was in fact informed of her s. 10(b) right, and the police made reasonable efforts to permit her to implement that right. The police at all times gave her appropriate advice that she would have a future opportunity to retain counsel to represent her at trial.

Misunderstanding Counsel’s Advice

[19]           The Dussault decision at para. 34 (released after this trial) confirms that a change of circumstances can renew the detained person’s right to consult counsel. Two examples are where the police undermined the legal advice that the detainee has received, or there are objective indications that the detainee misunderstood the advice in some material respect.

[20]           Here the appellant repeatedly inquired about having a lawyer present during her interview with police. On appeal, she submits this shows the advice she received was deficient, or she misunderstood correct advice, and therefore required another opportunity to contact counsel. In addition, she submits the police undermined the advice by stating she had no right to have counsel present during the interview.

[21]           According to Sinclair at para. 42, detainees do not have a right to have counsel attend while they are interviewed by the police:

. . . s. 10(b) should not be interpreted as conferring a constitutional right to have a lawyer present throughout a police interview. There is of course nothing to prevent counsel from being present at an interrogation where all sides consent, as already occurs. The police remain free to facilitate such an arrangement if they so choose, and the detainee may wish to make counsel’s presence a precondition of giving a statement.

A detainee may ask to have counsel present during an interview, but police are not obligated to agree.

[23]           While the appellant used the word “right” on one occasion, a fair reading of the appellant’s remarks shows she was asking whether she could have counsel present, not insisting that she was entitled to have counsel present. She did not testify on the voir dire that she was told she had the right to have a lawyer present. There was no evidence from Mr. Dumonceaux that he told her anything different. Therefore we are not prepared to infer that she was mistakenly informed she had a right to have counsel present, or that she mistakenly believed she had such a right.

[24]           If this interaction had caused the appellant to believe that she did not have the right to remain silent, her subsequent inculpatory statement may have been tainted. However, at the end of the interaction quoted above, the appellant stated: “I still have a right to say like… Like not to say anything else until I get a lawyer?”, To which Const. Pope replied: “Yes. Absolutely. . . . “. It is apparent that the advice given by Const. Pope did not displace the appellant’s understanding that she still had the right to remain silent: Sinclair at para. 73.1; McCrimmon at para. 24. This distinguishes LaFrance at para. 86, where it was found as a fact that the appellant did not understand his s. 10(b) rights. The legal advice she received was not undermined, and there are no objective indications that she misunderstood the advice in some material respect. As a result, there was no Charter breach.