COUNSEL: (in a sleepy voice) Hello? 

Gone are the days where there was a remedy for feeble police attempts to speak to counsel of choice, even if it is late at night, on the weekend, or during a time where counsel is unavailable.  As soon as the accused expresses a tepid waiver of that right to counsel of choice, there may be little argument against a s.10(b) violation – even in instances were the accused reasserts the preferred counsel when the interrogation has commenced.  In R. v. McCrimmon the police failed to reach the particular lawyer he requested, Mr. McCrimmon was asked if he wanted to speak to duty counsel to which he replied “Well, yes, definitely, but I prefer Mr. Cheevers.”.

He spoke to duty counsel for about five minutes.

During the police interrogation that followed, he stated several times that he wanted to speak to his lawyer and to have his lawyer present. Police denied his requests. Mr. McCrimmon emphasized the absence of his lawyer, expressing his sense of vulnerability without legal representation and his ignorance of the “legal ways”, and insisted that he would not speak without his lawyer.[8] On the basis that Mr. McCrimmon used duty counsel as what appeared to be de facto position shortly thereafter, The Supreme Court of Canada upheld the admission of the statement and held that:

[17] […] Where the detainee opts to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles him or her to a reasonable opportunity to contact chosen counsel.  If the chosen lawyer is not immediately available, the detainee has the right to refuse to contact another counsel and wait a reasonable amount of time for counsel of choice to become available.  Provided the detainee exercises reasonable diligence in the exercise of these rights, the police have a duty to hold off questioning or otherwise attempting to elicit evidence from the detainee until he or she has had the opportunity to consult with counsel of choice.  If the chosen lawyer cannot be available within a reasonable period of time, the detainee is expected to exercise his or her right to counsel by calling another lawyer, or the police duty to hold off will be suspended:  R. v. Ross, [1989] 1 S.C.R. 3; R. v. Black, [1989] 2 S.C.R. 138.

Due to Mr. McCrimmon’s acquiesce towards using duty counsel, notwithstanding his preference of his own counsel and his insistence of speaking to that counsel once the interview developed, the Court held that a 5-minute duty counsel was sufficient.

Therefore, answer your phone.

COUNSEL: Do you have privacy?  Can the police hear what you are saying?  Is there anyone else in the room? Etc.  

Fortunately, the right to speak to counsel in private still remains uncontroversial. For obvious reasons, this right needs to be effected and ensured.

COUNSEL: Name of accused? Police Division? Name of person on phone & officer in charge? When, where, how, why he was arrested? Has he already spoken to counsel? Has he already made a statement? (In the case of non-s.469 offences) Is there an intention to release him from the station? Any co-accused? Any mental health of medical issues? Complete list of charges he is presently facing? Etc.

Depending on the facts, there may be an argument later that the information provided by police was deficient and thus undermined your ability to provide effective advice.  Note taking is essential for this.  Our practice within our firm is to contemporaneously write out an email and send it to yourself.  This way it is time stamped with all the relevant information provided.

You may also wish to send a fax to the detachment restating the information that was provided to you by the officer and to notify you if there is anything further.  There may be some wiggle room from the recent 10(b) trilogy that if the counsel was not properly advised of the jeopardy the accused was facing, the rights to counsel are fatally undermined.

COUNSEL: I have spoken to the police and you are presently facing the charge of manslaughter.  The police have also advised me that depending on the results of the autopsy, the charge may be elevated to second-degree murder.  They are alleging that you were involved in an assault with several others that contributed to or was the cause of the death of Mr. XYZ. You may also face ancillary charges out of this but presently you are facing only the charge of manslaughter. If you are advised of any other charges other than what I have advised you, please state to the officer that your lawyer was not aware of these (new) charges and you wish to speak to him/her again. 

One of the key areas addressed in the McCrimmon decision in assessing a s.10(b) violation is whether or not there is a change of jeopardy from the accused’s initial implementation of the right to counsel. If police have only partially advised counsel of the charges, there may be a strong argument that the full extent of the accused’s jeopardy was not explained.  Assuming you have made note of the discussion with the officer prior to (as set out in Step 2 above) with a corroborating time-stamped email, fax, or memo, this may assist in supporting a later claim of Charter violations.   Such a claim would be further supported by an accused stating on video “my lawyer told me I was only facing a charge of manslaughter, not second-degree murder!”

Failure to provide counsel a complete list of charges is a significant impairment on the ability to meaningfully advise the client, whether the additional charge is relatively minor or increases the penal consequences.

You may also wish to send a fax to the detachment restating the information that was provided to you by the officer and to notify you if there is anything further.  There may be some wiggle room from the recent 10(b) trilogy that if the counsel was not properly advised of the jeopardy the accused was facing, the rights to counsel are fatally undermined.

 COUNSEL (TO ADULT): The law does not permit me to be present at the interview unless the police consent to such a procedure.  You can ask them if you can have me present, but if they say no, that ends the discussion. 

Simply put, there is no right for an accused to have a lawyer present unless the police consent to such a set up.[10]

COUNSEL (TO YOUTH): You have a right to have either me or your parent present during the interview of police.  If not already present, you can request for their attendance at any point and insist on their attendance[11].  Statements are only permitted when you explicitly waive that right to their presence – I strongly urge you not to waive that right.

With youth, the situation is entirely different.  Unless a youth accused is advised of and expressly waives the right to have a lawyer, parent, or guardian present (as defined by the YCJA), the statement is statutorily inadmissible.  From a practical point of view, attending the police station to assist a youth client is certainly not desirable – particularly late at night when there is no clear agreement on retainer.  However, for all the reasons implicit in this article, that decision should be made with careful consideration.

COUNSEL: “You have been provided one opportunity, and likely one opportunity only, to speak to counsel so listen very carefully.   I will repeat or review any of this as you wish during this conversation as there is no limitation on the time we spend in our this call (within reason).“

R. v. McCrimmon and Sinclair both make it clear that a request to consult counsel, without more, is not sufficient to re?trigger the s. 10(b) right.  What is required is a change in circumstances that suggests that the choice faced by the detainee has been significantly altered, requiring further advice on the new situation, in order to fulfill the purpose of s. 10(b). Those changed circumstances may result from:  new procedures involving the detainee; a change in the jeopardy facing the detainee; or reason to believe that the detainee may not have understood the initial advice of the right to counsel.

COUNSEL: “If police allow you to speak to me again, whether you ask or not, you should exercise that right as it likely means you legal jeopardy has changed.  In short, things are probably getting worse for you. “  

Since the law does not require police to reemploy any right to counsel unless the change of jeopardy of the accused has changed, if the police are offering such a cal then it is likely the accused needs further legal advice as they are now in a worse predicament then before.  It is essential the client is aware of this and calls back no matter what has happened up to this point.  Ensure to return to Step 2 and obtain as much information as possible from police to ensure that all relevant details are provided so you can advise the client accordingly.

COUNSEL: As we hang up the phones, and you express to the police that you have spoken to counsel, the police will likely commence an interview with you where the sole objective of that interview is likely to obtain evidence to use to assist proving a conviction against you at your trial, bail hearing, preliminary hearing, or other significant legal proceeding 

As defence lawyers, we understand the law and police practices well – even then, we are often surprised with the aggression and tactics employed in some instances.  To an inexperienced accused, those practices are foreign, surreal, and highly effective without having some understanding of what may happen to them for the several hours following your conversation and advice.  If an accused can anticipate what is coming, it allows them to prepare and not fall into police methods that often use elements of surprise, disorientation, and ignorance of police power and ethics.  The advice and overview may follow the following lines:

a.  The importance of the right to silence.

The explanation of the right to silence may go something like this:

COUNSEL (perhaps something like this) “As you have heard from television shows and even the police at this point, you have a right to silence.  Anything you say to police may be used against you at any proceeding along the way to try and demonstrate that you are responsible for the crime.  Generally speaking, the purpose of the police in obtaining a statement is only to obtain evidence that will assist them in their prosecution against you.  You will not be able to explain your way out of this situation: you are already charged.  

If there is a valid explanation for your innocence or minimized role, there is a time and place for that but at this early stage, it is extremely irresponsible and risky to offer any explanation. If you do make a statement, the prosecutor is permitted to use selective aspects of it that they may decide to use only the parts that you admit wrong doing, or in some way harms your case by undermining your credibility; however, as a general rule, you are not entitled to use any exculpatory statements in court as they are considered self-serving and therefore inadmissible. 

You have a right to silence, you do not have a right to lie or mislead police in the execution of their duty.  

Silence means just that: silence. 

The right is yours, and yours alone.  At the end of this discussion, you and only you are the one who can make the choice as to whether or not to exercise that right.  All I can advise you is that is my legal opinion, with the strongest emphasis possible, that you should exercise your right to silence.”  

b.  You have a right to silence, but the police do not need to respect that right as you might think.

It is necessary to impress upon the accused that a request, insistence, or painful repetition of the right to silence does not need require the police to hold off questioning.   The best way to explain what the police are permitted to do, is look no further than the facts of R. v. Singh as an example.

You may wish to advise you client, depending on the facts, in a similar manner as this:

COUNSEL: “Although you have a right to silence, the police are not in any way required to simply accept your insistence on this right.  If you wish to exercise your right, you may have to tell them 5000 times, you may have to simply put your head down and go to sleep, you may have to endure repeated questioning for hours on end under very uncomfortable conditions.  It short, your expressed right to silence means very little to police who wish to continue an investigation. I can assure you that no matter how uncomfortable the interrogation may be, the consequences of providing an inculpatory statement are much more severe. 

If you feel that you are not feeling well, express that on the video.  If you have medical conditions, express that.  If you are hungry, express that.  If you are intoxicated, express that.  In short, express all your discomfort so that later on a judge can determine whether the statement you provided was not voluntary – judges cannot read a person’s mind, on video, that they are waiving their right to silence for reasons external to consent. 

COUNSEL: You need to understand that the police are under lo legal obligation to be truthful with you.  They are entitled to lie if those lies will assist them in obtaining relevant evidence.  They may treat you like they are your buddy, that they want to help you, that they have obtained evidence (which does not exist) of a co-accused confession implicating you in the crime, DNA evidence putting you at the scene, the deceased told them before he died it was you, etc. etc. etc. There are very few rules, if any, the police are required to follow with respect to honesty if their goal is to obtain .

It’s amazing that so many people believe that the police must be honest or genuine with them in their dealings.  Undercover police work fundamentally flawed if an individual only had to ask the agent “Are you a cop?”  For good reason, police work uses lies, deceit, deception, and other tactics that have nothing to do with honesty – it may be honest police work, but the police need not be honest.

As the saying goes, “one needs to think like a thief to catch a thief” and as a society and as a matter of law, we have come to accept that as being acceptable police work.  Therefore, it is critical that an inexperienced accused understand this from the outset as most of the methods employed to obtain confessions, use significant deceit in one manner or another.  It may include evidentiary deceit, moral deceit, deceit of the court process, deceit of future police actions, etc.  This is laid out in more detail below, but the accused must understand as a basic principle that the police are permitted to deceive and that confessions obtained on a premise of deception will likely be rewarded through admission, not sanctioned.

A lawyer could go on ad nausem about the various police methods used to obtain confessions.  At a minimum, it is helpful to provide an overview of some of the most effective methodologies so that the accused at least can recognize the methods as the police are attempting to employ them.

COUNSEL: “Let me tell you about some of the methods that police have used in the past and the law has permitted with respect to obtaining voluntary statements”

Reiterate that many police methods to obtain confessions from those that are reluctant to provide them operate on the premise of deception in some form or another.  Police methods towards obtaining confessions usually follow the following psychological method:

1. Confront the accused with an overview of the allegations so he understands, generally what the police are alleging.
2. Loosen the accused up: familiarize yourself with the accused and attempt to befriend him and obtain small pieces of seemingly irrelevant information (such as how many kids he has, his childhood, etc.) that may be used later as evidentiary inroads, moral leverage, or exposing subjective weaknesses when presenting false evidence;
3. If possible, befriend the accused so that the moral pressure used later on will be more effective.  Continually reinforce that sincerity.
4. Weaken the mind: this may take the form of mild to moderate sleep deprivation, hunger, repetition, a refusal to listen to anything other than what interviewers want to hear – it is believed that the more the interviewer is permitted to assert their innocence, the less likely they are to ultimately accept responsibility;
5. If necessary, fabricate “evidence” for use during the interview (such as false co-accused confessions, claims of DNA or blood evidence, assertions by the deceased, independent witnesses, video, etc.) that conclusively establishes their guilt and makes claims of innocence seem entirely untenable;
6. Provide an out: provide a moral understanding to the alleged actions, a minimized role in the action, or the moral benefits of coming clean (think of the deceaseds family) etc.
7. Once the accused takes the bait, i.e., the “out”, rehash the case and strengthen the evidence on this admission.  Since the accused has now admitted their (diminished) responsibility, there is no obligation for the police to accept that and move back to the position of principal or establish a lack of moral.

•  Advise the client that police are allowed to make them feel very uncomfortable.  They is no obligation for the police to make sure you are comfortable.  Interrogations are generally very uncomfortable.

• That they are entitled to use various tricks to get a reaction where you feel an obligation to explain.  Here are some examples of tricks:

• “The prop box” – the police will leave a box inside the room marked with the accused’s name on it with a number of items.   The accused will be left alone.   The accused, out of curiosity or whatever reason, will look inside the box.  Interrogators will catch him in the act and ask why an innocent person would be so concerned with such items.  That his actions make him look very guilty, etc.
• “The stolen pen” – the accused will be steadfast in his or her right to silence and frustrating police efforts to obtain information.  A police officer will confront the accused on some very minor wrong (eg. Where did my pen go – did you steal my pen?) to which the accused will reactively answer no.  At that point the police will ask him why he would immediately deny he stole his pen, and yet remain silent when confronted on the serious crime he is charged with.
• “Best thing vs. worst thing that ever happened” – The police will ask you what is the best thing that ever happened to you.  If you answer, as it is rather non-contentious (my kids were born, my wedding day, etc.) and then asked “what is the worst thing that ever happened to you?” No matter what the response, the police will confront the accused by stating “I would have thought that the worst thing would have been wrongfully accused of a crime” and use the leverage obtained from there.
• The jail house plant: if you are charged with a serious offence like murder, and you are placed in the cell with someone else before you get to the detention centre, chances are, they are an undercover police officer.

COUNSEL: “If there is something that you feel I neglected to advise you on, or that you were not satisfied with my advice you must state that on the record.  Judges cannot read minds.  Remember to limit your protests to that and that alone, you are not required to explain why the advice was inadequate and that may open the door to making a statement, simply state that it is and you would like to speak to counsel again.”

COUNSEL: “When I hang up this phone, you probably won’t speak to a lawyer again before the interrogation happens.  You will be taken to a room, and the questioning will begin until the police decide to end it.  Things are going to be very uncomfortable for you for the next 24 hours – appreciate and accept that. You must understand fully and completely by the end of this conversation.  There is no refresher of your rights, or remedy for the police failing to allow you to call again to clarify your understanding at the end of this conversation. 

COUNSEL: Do you have any questions? 

• Do you understand you will likely not speak to me again before the interview is over?  
• Do you understand your right to silence?  
• Do you understand the jeopardy of providing a statement, even if are claiming innocence? 
• Do you understand how difficult it may be to ultimately exercise that right if that is your choice?
• Do you understand the police methods that they may employ to obtain a confession from you?  
• Do you understand that the police are not required to be honest or genuine with you? 
• Do you understand that they are permitted to create false evidence against you or lie that someone else has already told them you did it? 
• Do you understand that if you are not satisfied with my advice, or did not understand it, you should express that to the police?
• Do you understand that police may not permit you to speak to me again until you are taken to Court? 
•  Is there anything further you wish to discuss before we end our conversation?

The immediate effect of these new 10(b) decisions that now form the larger, as Binnie put it, “interrogation trilogy”, are not immediately apparent; however, it is expected that police will use the strength of the Court’s deference to these investigatory methods in implementing legally permissible tactics of obtaining more confessions.  Some of the effects of these decisions may include:

• Arresting individuals at inopportune times when lawyers are likely unavailable by telephone.  As McCrimmon makes clear, once an individual speaks to duty counsel and is generally satisfied with that advice, there is no need to continue efforts to get in touch with the lawyer of choice – even when there is an expressed desire of the detainee to do so;

• Creating a more unbalanced approach to the interrogation with counsel only having the ability to advise at the front end and not throughout the interview.  Such a practice will leave defence lawyers erring on the side of caution and strongly advising to remain silent rather than foster ongoing dialogues with investigators to negotiate information;

• Since counsel is now necessitated to approach the advice in a static environment of worst-case scenario as opposed to an evolving process that may or may not require further legal advice, initial advice on the telephone at the station may require an inordinate amount of time to be as thorough as presumably required.

• Considerable up-front information is required from the officer (that they may or may not provide); otherwise, the one-time, one-size-fits-all advice is effectively meaningless.

• An over-reliance on duty counsel with little meaningful effort to obtain counsel of choice (something that is becoming more and more common in 2016). Combine this with refusal of police to allow accused suspects to use modern methods of acquiring a lawyer (i.e., internet searches), and you have a de facto situation of requiring the accused to have the counsel of choice’s name/number memorized or duty counsel as the only alternative.

No matter how this unfolds, it is apparent for the time being that even through your clients may walk through the shadow of the valley of interrogation, there is no sanctuary from counsel once journey has commenced.