SCC Allows Appeal on Right to Counsel

Handcuff and fingerprint

On February 14, 2018, the Supreme Court of Canada allowed an appeal challenging the inclusion of a statement into evidence on the basis the appellant’s Charter right to counsel was violated.

Section 10(b) of the Charter reads: Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.”

The appellant submitted the right to counsel is only meaningful when police hold off from questioning the accused until the accused has had the opportunity to exercise their right. In the case at Bar, the appellant was arrested for sexual assault in Edmonton, Alberta. The arresting officer read the standard police caution advising the accused of his right to counsel. The appellant indicated he would like to exercise his right to counsel but the arresting officer continued to ask him if he wished to say anything in response to the potential charges. The appellant then responded, and at trial argued the inclusion of this statement into evidence violated his s. 10(b) Charter rights.

At trial, the  judge found the statement violated the appellant’s Charter rights and should be excluded under s. 24(2) of the Charter, which permits the exclusion of Charter-breaching evidence that would bring the administration of justice into disrepute. The Alberta Court of Appeal held that the statement should be included under the s. 24(2) analysis.

The appellant submitted to the Supreme Court that using the three R v Grant factors to determine exclusion of evidence under s. 24(2), the appellant’s statement should not be included. First, the appellant argued the seriousness of the Charter breach was sufficient since it was systemic in nature and standard police practice in Edmonton. Second, the appellant submitted the impact of Charter-protected interests was significant because the statement was obtained “in response to a direct question from the arresting officer.” Finally, the appellant submitted society’s interest in the adjudication of the charges allows for the exclusion of the statement; exclusion would not be fatal to the Crown’s case and the seriousness of the offence requires police investigation be prudent and uphold Charter rights.

The Supreme Court allowed the appeal, with Chief Justice Wagner in Dissent.

This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.