Understanding your rights as a detainee is crucial for ensuring fair treatment and protecting your interests. By familiarizing yourself with the general principles, exceptions, and procedures surrounding the right to counsel, you can navigate detainee situations more confidently and effectively.
Section 10(b) – Right to Counsel
Section 10(b) of the Canadian Charter of Rights and Freedoms guarantees the right to counsel upon arrest or detention. It states that individuals have the right to retain and instruct counsel without delay, and to be informed of this right. Typically, providing an initial warning and allowing a reasonable opportunity to consult counsel when requested fulfills this requirement.
Regarding the opportunity to re-consult counsel after an initial consultation, it’s recognized that there’s a limited right to do so under Section 10(b) of the Charter. However, this right only applies when developments in the investigation make it necessary to fulfill the purpose of Section 10(b). This interpretation is affirmed by the legal precedent set in the case of R. v. Sinclair [2010].
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General Principles of the Right to Counsel
When a detainee exercises their right to counsel, it’s typically considered a one-time opportunity, barring certain exceptions (R. v. Sinclair, [2010]). The discretion for further access to counsel beyond the initial consultation lies with the police, even if promises of additional access were made (R. v. Briscoe, [2012]). Importantly, this rule against additional access typically applies to a single period of detention and does not necessarily extend to subsequent encounters related to the same investigation (R. v. TGH, [2014]).
Exceptions
While the general principle limits access to counsel, there are several exceptions to this rule. These exceptions include situations where new or non-routine procedures involving the detainee arise, where the jeopardy increases due to new evidence or charges, or where the previous waiver of rights was not done properly. It’s crucial to note that these exceptions are not exhaustive, and the circumstances that warrant additional access to counsel may vary.
Change in Circumstances Exception
Under the change in circumstances exception, a detainee is entitled to an additional chance to consult with counsel if there has been a noticeable change in circumstances that necessitates advice in a new or emergent situation. This exception emphasizes the importance of fulfilling the purpose of providing detainees with the necessary guidance in evolving situations.
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Procedure for Accessing Counsel
When new or non-routine procedures involving the detainee occur, they should be granted another chance to consult with counsel. These procedures should not align with standard police questioning. They should only be initiated if the detainee’s involvement is essential, and they have the right to refuse participation or to fully understand the process.
Non-routine procedures may involve activities such as participating in a lineup or undergoing a polygraph examination. It’s important to note that a re-enactment does not fall under non-routine procedures; rather, it is considered a statement made through conduct.
Change of Jeopardy
In cases where the circumstances of detainment change, leading to further charges or investigations, the detainee must be given another opportunity to consult with counsel. This change in jeopardy (type of offence) must be objectively observable, significantly altering the choice faced by the accused and necessitating updated legal advice. However, not all changes in circumstances constitute a change of jeopardy, and police may assume that initial legal advice was sufficient unless proven otherwise.
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