When an individual is under arrest and chooses to speak to a lawyer, counsel is primarily focused on providing emergency legal advice on the detainee’s rights and obligations.
Counsel should also appreciate that time may be of the essence with respect to the preservation of evidence that may assist the detainee at trial.
Memories fade over time and a trial will not take place for many months or even years. The detainee may have to testify at trial and the details of what happened may be critical for a successful outcome (for example, consider a defence of consent/mistaken belief in consent or an alibi). Counsel may want to make arrangements for a comprehensive interview with the detainee as soon as possible after the detainee’s release from police custody.
The detainee may also possess information that requires timely defence investigation (for example, the preservation of a video surveillance recording or the interview of a potential defence witness).
Counsel should also consider whether it is necessary to collect evidence of the detainee’s physical condition, including any observable injuries. Such evidence may be relevant to a claim of self defence, the detainee's mental state at the time of the alleged offence and the admissibility of any self-incriminating statements.
In some cases, the prompt collection of a detainee’s blood sample may yield valuable information, including the detainee's blood sugar levels, blood alcohol concentration and the presence of any controlled substances.
Important defence evidence may be lost if counsel waits for full disclosure from the Crown before meaningfully engaging with a client.