In R. v. Dussault, 2022 SCC 16, April 29, 2022, the accused was arrested for the offence of murder. He was advised of his right to speak to counsel and spoke to a lawyer (Mr. Benoit). The lawyer indicated to the police that he was going to come to the police station to speak to Mr. Dussault. When the lawyer arrived at the police station, the police would not allow him to speak to the accused. Meanwhile, the police continued to speak to the accused and obtained a statement from him.
At trial, the trial judge concluded that a breach of section 10(b) of the Charter had not occurred. The accused’s statement was admitted and the accused was convicted. On appeal, the Quebec Court of Appeal held that the accused’s phone call with the lawyer did not constitute a complete consultation for the purposes of section 10(b) of the Charter. The conviction was overturned and new trial ordered.
The Crown was granted leave to appeal to the Supreme Court of Canada. The Supreme Court indicated that the “issue in this appeal is whether the police provided Mr. Dussault with a reasonable opportunity to consult counsel and, more particularly, whether they were required to provide Mr. Dussault with a further opportunity to consult counsel before interrogating him” (at paragraph 2).
The appeal was dismissed.
The Supreme Court held that “in the unique circumstances of this case, I am satisfied that the police were required to provide Mr. Dussault with a further opportunity to consult counsel before questioning him…In my opinion, there were objectively observable indicators that the police conduct in this case had the effect of undermining the legal advice that the lawyer provided to Mr. Dussault during their telephone call. Therefore, even if the call was a complete consultation in its own right, the police were nevertheless required to provide Mr. Dussault with a second opportunity to consult counsel. They failed to do so and thereby breached his s. 10(b) rights…As I see it, the principles set out in Sinclair suffice to resolve this appeal. Sinclair states that the police must provide a detainee with a second opportunity to consult counsel where there are ‘objectively observable’ indicators that their conduct has undermined the legal advice that was provided during the first consultation: para. 55. On the facts of the present appeal, there were objectively observable indicators that the conduct of the police had had the effect of undermining the legal advice that Mr. Benoît provided to Mr. Dussault during their telephone call. Therefore, even if the call was a complete consultation, this was one of those rare cases in which the police were obligated to provide a detainee with a second opportunity to consult counsel. In failing to provide that opportunity to Mr. Dussault, they breached his s. 10(b) rights” (at paragraphs 3 and 29).
The Right to a Second Consultation:
The Supreme Court indicated that section 10(b) of the Charter requires the police to “inform detainees of the right to counsel (the informational duty) and must provide detainees who invoke this right with a reasonable opportunity to exercise it (the implementational duty). Failure to comply with either duty results in a breach of s. 10(b)…[the police] can typically discharge their implementational duty by facilitating ‘a single consultation at the time of detention or shortly thereafter’… Detainees do not have a right to obtain, and police do not have a duty to facilitate, the continuous assistance of counsel” (at paragraphs 31 to 33).
The Supreme Court also indicated that “[o]nce a detainee has consulted with counsel, the police are entitled to begin eliciting evidence and are only exceptionally obligated to provide a further opportunity to receive legal advice. In Sinclair, McLachlin C.J. and Charron J., writing for the majority, explained that the law has thus far recognized three categories of ‘changed circumstances’ that can renew a detainee’s right to consult counsel: ‘. . . new procedures involving the detainee; a change in the jeopardy facing the detainee; or reason to believe that the first information provided was deficient’ (para. 2). Of course, for any of these “changed circumstances” to give rise to a right to reconsult, they must be ‘objectively observable’… As a specific example of the third category listed above…the right to counsel may be renewed if police ‘undermine’ the legal advice that the detainee has received” (at paragraphs 34 and 35).
Undermining Legal Advice Includes Undermining Confidence in Counsel:
The Court indicated that the police “can undermine legal advice by undermining confidence in the lawyer who provided that advice…A detainee’s confidence in counsel anchors the solicitor-client relationship and allows for the effective provision of legal advice…When the police undermine a detainee’s confidence in counsel, the legal advice that counsel has already provided — even if it was perfectly correct at the time it was given — may become, as observed in Sinclair, ‘distort[ed] or nullif[ied]’. Sinclair requires police to provide a new opportunity to consult with counsel in order to counteract these effects” (at paragraphs 37 and 39).
Undermining Is Not Limited to Intentional Belittling of Defence Counsel:
The Court held that “[w]here the police conduct has the effect of undermining the legal advice given to a detainee, and where it is objectively observable that this has occurred, the right to a second consultation arises. There is no need to prove that the police conduct was intended to have this effect” (at paragraph 41).
The Court concluded that the “purpose of s. 10(b) will be frustrated by police conduct that causes the detainee to doubt the legal correctness of the advice they have received or the trustworthiness of the lawyer who provided it” (at paragraph 45):
Simply put, the purpose of s. 10(b) is to provide the detainee with an opportunity to obtain legal advice relevant to their legal situation. As noted earlier, the legal advice is intended to ensure that “the detainee’s decision to cooperate with the investigation or decline to do so is free and informed”. The legal advice received by a detainee can fulfill this function only if the detainee regards it as legally correct and trustworthy. The purpose of s. 10(b) will be frustrated by police conduct that causes the detainee to doubt the legal correctness of the advice they have received or the trustworthiness of the lawyer who provided it. Police conduct of this sort is properly said to “undermine” the legal advice that the detainee has received. If there are objectively observable indicators that the legal advice provided to a detainee has been undermined, the right to a second consultation arises. By contrast, the right to reconsult will not be triggered by legitimate police tactics that persuade a detainee to cooperate without undermining the advice that they have received. As Sinclair makes clear, police tactics such as “revealing (actual or fake) evidence to the detainee in order to demonstrate or exaggerate the strength of the case against him” do not trigger the right to a second consultation with counsel: para. 60.
Application to this Case:
The Court concluded that “the police conduct in this case had the effect of leading Mr. Dussault to believe, first, that an in-person consultation with Mr. Benoît would occur and, second, that Mr. Benoît had failed to come to the police station for that consultation. The effect of this was to undermine the legal advice that Mr. Benoît had provided to Mr. Dussault during their telephone conversation. Importantly, there were objectively observable indicators of this. In my view, these indicators triggered the police duty to provide Mr. Dussault with a second opportunity to consult counsel. The police failed to discharge that duty and, in doing so, breached Mr. Dussault’s right to counsel” (at paragraph 46).
The Court concluded that “police conduct had the effect of undermining the legal advice that Mr. Benoît had provided to Mr. Dussault” for two reasons (at paragraphs 53 to 55):
The first is the content of the advice itself. Mr. Benoît advised Mr. Dussault that he was coming to the police station to meet with him in person; that, in the interim, Mr. Dussault would be placed in his cell; and that he — Mr. Dussault — should not speak to anyone. In refusing to permit Mr. Benoît to meet with Mr. Dussault, the police effectively falsified an important premise of Mr. Benoît’s advice — i.e. that Mr. Dussault would be placed in a cell until Mr. Benoît arrived. This is an example of the “distort[ion]” of legal advice that was warned against in Sinclair.
The second is the evidence of what Mr. Dussault said during the interrogation itself. He repeatedly expressed that his lawyer had told him he would be there ([translation] “That, my lawyer told me he was supposed to be here”); he stated his belief that his lawyer had never actually arrived (“he told me to wait till he was here, and he still hasn’t arrived”); he openly questioned why his lawyer had given him the advice that he had given (“But that, my lawyer, he told me to . . . why did he tell me to remain . . . He just told me to give my name, my things, and he told me to remain silent until he was here. Why did he tell me that?”); and he implied that his lawyer’s failure to show up had left him feeling alone (“Because he told me he’d be here. Now I feel like I’m a bit on my own”).
When these statements are considered in their totality and in light of all relevant circumstances, it is clear that they were objectively observable indicators that the legal advice given to Mr. Dussault had been undermined.