Everyone has the right on arrest or detention…..to retain and instruct counsel without delay and to be informed of that right.

Section 10(b) of the Canadian Charter of Rights and Freedoms

When detainees ask to speak with a lawyer at the time of arrest or detention, the general rule is that the police are prohibited from making any investigative demands or requests until the detainees have been provided with a reasonable opportunity to exercise their right to counsel [e.g. R. v. Prosper, [1994] 3 S.C.R. at para. 34]. 

The obligation of the police to “hold off” on questioning or making other investigative demands was recently revisited by the Supreme Court of Canada in R. v. G.T.D., [2018] S.C.J. No. 7. In G.T.D., supra, the police properly advised the accused of the reasons for his arrest and provided him with the necessary information about his right to consult with a lawyer. The accused then expressed a desire to speak with counsel. Before allowing the accused an opportunity to speak with a lawyer, however, the officer went on to say:

You may be charged with sexual assault and breach. You are not obligated to say anything unless you wish to so do, but whatever you do say may be given in evidence. Do you wish to say anything?

In response to the officer’s question, the accused made a comment that was ultimately used against him at his trial.

A unanimous Supreme Court of Canada held at para. 2 that:

The first issue in this appeal is whether the question “Do you wish to say anything?”, asked at the conclusion of the standard caution used by the Edmonton Police Service after G.T.D. had already invoked his right to counsel, violated this duty to “hold off”. We are all of the view that it did, because it elicited a statement from G.T.D.

A majority of the Court in G.T.D., surpa, was also of the view that the violation of the accused’s right to counsel warranted the exclusion of the accused’s statement at his trial (para. 3).

Other considerations:

·      Police services across Canada must ensure that the printed materials provided to front-line officers for use at the time of arrest or detention do not trigger violations of a detainee’s constitutional right to counsel.

·      The obligation of the police to “hold off” on eliciting evidence from a detainee who wants to speak with a lawyer is one of the “implementational duties” that the constitutional right to counsel imposes upon state officials at the time of arrest or detention (Prosper, supra, at para 34).

 

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