10(b) does not mandate that defence counsel be present through an interrogation; an initial consultation and reasonable consultations when appropriate are sufficient; defense counsel can be present when all parties agree to it, and interrogators can allow further consultations if they like (this only governs mandatory consultation)
Purpose of right to counsel is to assist detainee in determining whether they should speak to authorities "upon arrest or detention" as a discrete point in time, supplements right to silence; it is designed to protect detainees, not to provide information; exercise of 10(b) rights (and s. 7 right to silence) must be balanced with need for police work to proceed reasonably
Detainees should be given right to consult with counsel again when there is a significant change in the circumstances of their detention, and detainee must make a further decision as to how to engage with the state's agents (list is not exhaustive, but further additions must be tailored to pursuing aim of 10(b)): where there are new procedures (taking a polygraph, participating in a lineup), where there is a change in jeopardy (new charges), where reasons emerge that lead to doubt the detainee's understanding of their 10(b) rights
Confession rule operates in tandem with 10(b); majority claims that this is sufficient to protect detainees during interrogation
Binnie (dissent)
Purpose of s. 10(b) is to ensure fair treatment during detention, and should be given broad, generous interpretation; meaningful assistance that enables the detainee to navigate the law must be provided by counsel, not just bare information about whether they should engage with police (an automated message telling detainees to shut up would suffice for the majority's view - inappropriately conflates right to counsel and right to silence); take broader view than majority on what constitutes a significant change in circumstances - "reasonable access from time to time" as the interrogation unfolds and new legal advice is appropriate
Fish and Lebel (dissent)
Right to counsel requires that the assistance of counsel be available throughout the detention ("in case of detention or arrest" - French translation); majority's view undermines presumption of innocence; role of counsel is to advise detainee on how and why right to silence should be effectively exercised, and not doing so deprives people of counsel when they need it most; detainee should be in charge of their access to counsel, not merely when the interrogator determines there's been a change in circumstances; in conjunction with other decisions, this erodes right to silence by allowing police to wear people down over their protestations
Willier
10(b) should be interpreted purposively - intention is to mitigate disadvantage that detainees suffer when in the power of the state
Implementational duty on police requires them to provide a means to contact counsel and to make sure that the accused understands what their rights are; it does not require the police to ensure that you contact your preferred counsel if they are unavailable (though if reasonable, you can attempt to contact them later without waiving your right) or to monitor the quality of the legal counsel you're given
Prosper - when an accused exercises reasonable diligence but cannot contact counsel 10(b) rights continue and they cannot be questioned until they contact counsel (10(b) was not exhausted), but if they choose to waive their right to counsel they must be warned (Prosper warning - when you can't contact a lawyer but then choose not to contact any other counsel, police must warn accused of the circumstances that accompany their ceding of legal right)
10(b) rights have to be claimed with reasonable diligence; if the accused delays, or waits an unreasonable time to contact their chosen counsel, the police can proceed; this includes attempting to retain counsel that will not likely contact them in a reasonable time
Police cannot compel a detainee to waive their 10(b) rights, but merely reminding detainees of time pressures
Once a detainee has expressed satisfaction with the legal advice they've received, even if it's not from their preferred counsel, the police can proceed
S. 24(2) - remedy
Evidence must have been obtained through a Charter breach, and will be excluded if it would bring the administration of justice into disrepute
Evidence is obtained through a breach only when there is a causal relationship between the breach and the discovery of the evidence that is not too remote
Crown bears burden of proof when claiming that the evidence was independently discoverable
Grant
S. 9 - detention
S. 7 guarantees liberty will only be curtailed in accordance with principles of fundamental justice; s. 9 puts that into practice by guarding against arbitrary state interferences with liberty (both physical and mental) and providing for legal protection (also s. 10 rights)
Detention is defined as "a suspension of the individual's liberty interest by a significant physical or psychological restraint"
S. 10 rights are triggered on this detention (not, say, arrest)
Psychological detention established where the individual has a legal obligation to comply with the restrictive demand/request or where a reasonable person would conclude, based on the state's conduct, that they had no choice but to comply (objective test)
Factors for consideration: how the circumstances would be perceived by the individual (were they singled out or part of a crowd, whether the police were providing general assistance, etc.); nature of police conduct (physical contact, location, duration, presence of others); relevant characteristics of individual (age, race, "level of sophistication")
Preliminary questioning is not detention, but precautionary directives can constitute detention if it passes the objective test
Lawful detentions are not arbitrary (unless the law is arbitrary), but detention requires at least a reasonable suspicion to be lawful, and lack of a reasonable suspicion will make a detention arbitrary
Evidence is conscriptive where "an accused, in violation of his Charter rights, is compelled to incriminate himself at the behest of the state by means of a statement, the use of the body or the production of bodily samples" (another way: evidence involving the accused being conscripted to the prosecution's side); derivative evidence is real evidence found as the result of an unlawfully conscripted statement
Aim of s. 24(2) is to guarantee trial fairness in the long term, so trial fairness is no longer part of the exclusionary test; similarly, engaging 24(2) means that damage has been done to the administration of justice and remedy must be prospective - "whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would being the administration of justice into disrepute"
Test for Charter exclusion balances:
The seriousness of Charter-infringing state conduct (the more serious the breach, the more likely the evidence should be excluded since damaging to repute of justice; good faith breaches can be tolerated if not severe)
The impact of the breach on the Charter-protected interests of the accused (the more serious the breach, the greater the damage to the perception of the administration of justice)
Society's interest in the adjudication of the case on its merits - will the truth-seeking function of the trial process be better served by admission or exclusion? (Deschamps says this is ambiguous - more serious crimes have higher interest so could allow more serious breaches, but should also merit higher protection given the stakes)
Rejecting highly reliable and probative evidence, even if in breach, might damage perception of justice more than admitting it
These tests must be balanced against each other; no trumps
Application to evidence:
Statements by accused - presumptive rejection if obtained through breach, though not automatic; technical breaches of rights infringe interest in rights in a minor way that can be permissible (they must survive confession rule first)
Bodily evidence - not equivalent to statements by accused; has to be analyzed: seriousness of police conduct, degree that search interfered with privacy/bodily integrity/dignity of accused. Reliability of bodily evidence means that it'll often be admissible if not invasive (breath samples are kosher)
Non-bodily physical evidence - depends on factors; reliability favours admission if not egregious violation of privacy/dignity rights
Derivative evidence - if evidence was conscriptive, then trial fairness favours exclusion; if independently discoverable, then favours inclusion; good faith breaches favour inclusion, but malicious breaches favour exclusion
Uncertainty about the law can tip favour towards admission of evidence
Binnie (dissent) - detention test should include objective facts beyond reasonable perception of intention, regardless of whether they were recognized at time of detention
Deschamps (dissent) - singling someone out can lead to reasonable perception of detention; new s. 24(2) test inappropriately focuses analysis on accused rather than state conduct and shouldn't consider seriousness of state conduct separately from seriousness of Charter breach; test should be to balance effect of violation of Charter rights with public interest in adjudication on merits (including reliability and importance of evidence in question)
Final notes on evidence
Real evidence usually not conscriptive, unless accused produced the thing (bodily substance) or the accused participated in the creation/disclosure of evidence
Discoverability is Crown's defence to claim that evidence was conscriptive; if discoverable, then it is non-conscriptive derivative evidence and could be admitted
