Police breach Charter right to counsel by undermining lawyer-client trust: SCC

When police conduct undermines a criminal defence lawyer’s advice to an accused, they are required to allow another legal consultation to comply with the right to counsel under s. 10(b) of the Charter, the Supreme Court of Canada has found.

After a Quebec court convicted Patrick Dussault of second-degree murder and arson, the Court of Appeal ruled that police had violated Dussault’s right to counsel, and ordered a new trial. In a decision released Friday, the SCC has dismissed the Crown’s appeal.

Though police had facilitated a phone call between Dussault and his lawyer, the court found that the case was one of “the unique circumstances” where police are required provide a “further opportunity to consult counsel” before questioning. Writing for the unanimous 9-judge panel, Justice Michael Moldaver said that the police’s subsequent conduct had effectively undermined the initial legal advice, and in failing to provide another opportunity, they had breached Dussault’s s. 10(b) right.

“The main takeaway of this case is that the court has now made it incredibly clear that the police must refrain from engaging in any conduct that could undermine the suspect’s relationship of trust with his counsel,” says Mairi Springate, counsel for the intervenor, L’Association québécoise des avocats et avocates de la défense. “What they've done is put that lawyer-client relationship back at the heart of the protection that is offered by section 10(b) of the Charter.”

“The caselaw in the past has tended to restrict this notion of denigration of counsel to verbal denigration. And what this case shows is that, in fact, it's any conduct that has the effect of undermining the trust-relationship with counsel. That’s the clarification in the law that we see from this case.”

Police are typically only required to give an accused a chance to speak with a lawyer and are not required to facilitate “the continuous assistance of counsel,” said Moldaver. But there are three “categories of changed circumstances” which count as an exception to this general rule, he said. First, if there are “new procedures involving the detainee.” Second, if there is a “change in the jeopardy facing the detainee”. And third, if there is “reason to believe that the first information provided was deficient.”

The police’s undermining of legal counsel triggers the third category. This is not limited to the “intentional belittling” of defence counsel, said Moldaver, and can include unintentionally undermining the legal advice. The determination rests on the “objectively observable effects of the police conduct, rather than on the conduct itself.”

Police arrested Dussault in April 2013, and the arresting officers advised Dussault of his rights to counsel and to remain silent. At the station, Dussault spoke by phone with a lawyer, Jean-François Benoît. Benoît explained the charges against him and his right to remain silent, but sensed Dussault did not understand his advice and offered to come to the station. Dussault accepted and Benoît told the police he was coming and requested they suspend the investigation. The police agreed and Benoît told Dussault he was on his way, that he would be placed in a cell in the meantime, and told him not to speak to anyone.

The police then decided the phone call was a sufficient exercise of Dussault’s right to counsel and that they would not permit him to meet with Benoît. They called Benoît to let him know, but he showed up to the station anyway.

The police contacted a prosecutor from the office of the Director of Criminal and Penal Prosecutions, for advice. Looking at relevant caselaw, including the SCC decision in R. v. Sinclair, 2010 SCC 35, the prosecutor agreed s. 10(b) did not require they allow Dussault and Benoît to meet again.

Benoît was at the station for two hours and fifteen minutes, before leaving to attend to family matters. He left a note for officers indicating he had only provided Dussault with partial advice, which he needed to complete before they interrogated him. He said he would be free later that evening and to call him as soon as possible.

The police went ahead with the interrogation, without allowing Dussault and Benoît another meeting. During the interrogation, Dussault incriminated himself.

Two actions by police had combined to effectively undermine Benoît’s initial legal advice, said Moldaver. When Benoît told the officer he was coming to the police station to meet with the accused, and asked him to suspend the investigation, the officer said, “no problem or no trouble.” Benoît relied on this assurance in advising his client he would be placed in a cell, and they would meet later. By refusing to allow Dussault and Benoît to meet, “the police effectively falsified an important premise of the lawyer’s advice,” said Moldaver.

The second undermining action was misleading Dussault. The police had led him to believe Benoît had not shown up for their in-person consultation. While being interrogated, Dussault repeatedly mentioned the lawyer and his statements make clear the police’s conduct had undermined Benoît’s advice, said Moldaver. Dussault expressed his false belief that the lawyer had never arrived, he questioned why Benoît had advised him as he did and said Benoît’s failure to show had “left him feeling alone.”

“It's clear from this judgment that the police should not be undermining counsel’s role, or counsel’s advice, as a tactic to persuade people to speak to them,” says Anil Kapoor, counsel for the Criminal Lawyers' Association, an intervenor. “They should just not even talk about the lawyer once the advice has been given… that’s the big takeaway.”