The illusory right to counsel in Canada

The American and Canadian legal systems differ in many ways, even on the turn of the single phrase, "I want a lawyer."

As far back as the 1960s, the United States Supreme Court recognized that the constitutional right to effective counsel extends from arrest right until conviction. Pointedly, the American courts found that the right to a lawyer during the initial arrest and interrogation by police is one of the most crucial aspects of the right to counsel. It's also essential to the exercise of one's right to be free from self-incrimination.

Forcing a suspect to face an interrogation alone could mean they are "denied effective representation by counsel at the only stage when legal aid and advice would help him," wrote the New York Supreme Court in 1959, an argument later recognized at the national level.

Many Canadians would be forgiven for thinking a similar standard applies in this country. It is a ubiquitous television trope that no interrogation can proceed once a suspect "lawyers up."

However, the right to counsel isn't quite as expansive in Canada, as evidenced in R. v Dussault, which is set for hearings at the Supreme Court on December 3.

An illusory right

Patrick Dussault was arrested in 2013, charged with murder and arson. He was quickly advised of his right to counsel, and of his right to remain silent. Upon arriving at the police station, Dussault was given a list of defence counsel he could choose from. He called up lawyer Jean-François Benoit. The two spoke for less than 15 minutes, with Benoit telling both Dussault and the officers that he was en route to the police station to advise his client, given the severity of the charges.

This is where the American and Canadian contexts diverge. The officers, advised by a Crown attorney, concluded that Dussault's right to counsel had been satisfied and began the interrogation.

In fact, when Benoit arrived at the station, he was denied access to his client. Meanwhile, investigators refused to tell Dussault whether his lawyer had arrived — and ignored his requests to stop the interview. During the interrogation, Dussault answered the officers' questions and made statements that would later be used in court to convict him.

At trial, the judge agreed that Dussault had been adequately informed of his rights, and that his right to counsel had been adequately respected. The evidence from the interrogation was allowed.

On appeal, however, a unanimous court found that "the effective assistance of counsel was denied when investigators determined not to permit a continuation of the consultation that began on the telephone." It ordered a new trial and the exclusion of statements made during the interrogation.

The case now heads to the Supreme Court — but anyone hoping for a pivot towards the American standard of access to counsel shouldn't hold their breath.

"The balance that the courts are really trying to achieve, here, is a balance between the rights and the responsibility of police to investigate crime and being effective in doing that," says Jérémy Boulanger-Bonnelly, an SJD candidate at the University of Toronto, focusing on access to justice issues. "And, on the other hand, having that right to counsel, which is meant to balance the imbalance of power that exists between the state and the accused."

Affording investigators wide latitude to conduct their interviews, unencumbered by an accused's counsel, is what separates Canada's system from America's.

"I think in some circumstances, yes, the right to remain silent and the right to counsel can become illusory," says Boulanger-Bonnelly. That may lead some to push for "the very formalistic position" that police should follow bright-line rules around exactly how suspects may have access to counsel, he says: But that may not work in the Canadian context either.

As such, the right to counsel and the right to remain silent "isn't really substantively enforced," he adds. "And I think that's what we want to strive for."

The iron triangle

The balancing act between the right of an accused to access counsel and the right of investigators to conduct an efficient investigation stems from a trilogy of cases — Oickle, Singh and Sinclair — often referred to as the 'iron triangle.'

The first two cases provided scope for what constitutes a voluntary interview with police. They established that invoking the right to silence to avoid self-incrimination does not preclude police from continuing the interrogation.

In R. v. Sinclair, the Supreme Court tackled the right to counsel — with facts similar to Dussault.

In Sinclair, the accused was permitted to speak to his lawyer by phone, but was denied access to counsel during the interrogation despite repeated requests.

At the Supreme Court, a narrow 5-4 majority held that Section 10 of the Charter "does not mandate the presence of defence counsel throughout a custodial interrogation." Indeed, they found that an initial conversation with counsel to understand their constitutional rights is often sufficient to satisfy the right to counsel.

Justice Ian Binnie echoed the American context in his dissent, writing that "the right against self-incrimination and the right to silence cannot be eroded by an approach to criminal investigations, and in particular to custodial interrogation, that would favour perceived police efficiency at the expense of constitutionally protected rights."

In the years since Sinclair, there have been calls to adopt a more expansive approach to the right to counsel. Defence lawyer Nader Hassan tweeted recently that "the trilogy that must be revisited."

Even though the court has seen a complete turn-over since Sinclair in 2010, the chances of a total overhaul of Canada's right to counsel regime seem unlikely. Dussault's lawyers, on appeal, are arguing that the consultation was simply too limited. "The accused has every right to expect that their lawyer will not be satisfied with just reciting a magic formula," reads the factum, meaning that counsel should ensure that the accused understands their rights, not simply hears them.

The Criminal Lawyers Association of Canada, which was granted intervenor status, goes slightly farther, arguing that "[t]he police cannot be the arbiters of when the solicitor-client communication has concluded; that is for the lawyer and their client to determine." Yet it remains to be seen how their lawyer can determine what constitutes sufficient consultation if they are not permitted to communicate with their client during the interview.

The Attorney General of Canada, in its submission, provides a much simpler standard, relying on Sinclair. It argues that once the accused has spoken to counsel, "the obligation of police officers is fulfilled, unless an objective and observable fact occurs and makes a second consultation with the lawyer possible."

While the arguments before the Supreme Court are narrow, Boulanger-Bonnelly says there is still room for the court to make a substantive decision.

"What they can really shift from is a tendency, of some lower courts, to interpret the right to counsel in a very formal way," he says. "And shift away from that to say that it's a substantive right."

But much of the conversation around criminal justice has changed since Sinclair was heard a decade ago — particularly regarding the inequitable outcomes for Black and Indigenous and the barriers they can face when under arrest.

"I think they're going to be attuned to the consequences of a potential framework that they could develop on those issues, especially with recent cases that did educate them on those realities," Boulanger-Bonnelly says.

Revisiting Sinclair

Issues around unequal access to justice will also be on display in R v. Lafrance, which will be heard alongside Dussault. That case concerns the arrest and conviction of 19-year-old Nigel Vernon Lafrance, an Indigenous man, in the killing of an Alberta man.

The matter raises a broader question of what constitutes detention: Lafrance had been taken to a police detachment and interviewed in an interrogation room, but officers said he was free to leave at any time. Even though they pushed him to provide a statement, albeit a voluntary one, he was never advised of his rights.

Again, at the core of the matter is the notion that Canadian law affords police an exceptional amount of latitude to engage in interviews, which can lead to damning evidence and even full confessions, without meaningful consultation with a lawyer.

The Canadian Civil Liberties Association is intervening in Lafrance and are pleading for a fundamental redrawing of the rights of the accused.

"In Sinclair, the dissenting opinions predicted that the majority judgment would give the police 'unfettered and continuing access to the detainee, for the purpose of conducting a custodial interview,'" the CCLA argues in its submission. "They were right. Sinclair gives the police all the cards... Case law is replete with examples of lengthy interrogations with multiple futile assertions of the right to silence, or requests to contact counsel again, from the detainee."

The Association is calling for the American approach towards safeguarding and asserting one's right to remain silent: "The ability to consult with counsel upon request throughout the interrogation."

As the CCLA notes, Canada is an outlier amongst its peers. Detainees in Australia, England, and Wales also have the explicit right to consult a lawyer during police interviews. "The international landscape demonstrates that a robust protection for the right to counsel during custodial interrogations is not a novel concept," they write.

But Supreme Court has already weighed in on exactly that issue. While the new complement of justices may interpret Section 10 of the Charter in a novel way and reverse Sinclair, that may be a job left instead to Parliament.

And as Boulanger-Bonnell argues, there's a broader issue at play.

"Having the right to counsel is one thing, but also the lack of education that we have in our daily lives about criminal law, I think, is also an underlying problem," he says. A better understanding of our Charter rights — including the right to remain silent — would alleviate the pressing need for counsel during interviews. "That's one aspect, from an access to justice perspective, that I also have in mind: How to make sure that everyone is better informed about their rights, and restoring the imbalance between the state and the accused."