Right to Counsel May be Renewed: SCC Affirms in R v Dussault
In April 2022, the Supreme Court of Canada (“SCC”) rendered a decision about a detainee’s right to counsel, pursuant to s. 10(b) of the Canadian Charter of Rights and Freedoms [Charter].
Writing unanimously for the SCC, Moldaver J. dismissed the Crown’s appeal and confirmed, in exceptional circumstances, a detainee’s right to counsel can be renewed as in the unique situation in R v Dussault, 2022 SCC 16 [Dussault].
Facts of the Case
In August 2013, Mr. Patrick Dussault (“detainee” or “Dussault”) was arrested on charges of murder and arson. The police informed him of his right to counsel under s. 10(b) of the Charter, and he confirmed he wanted to exercise this right. At the police station, the detainee spoke with a defence lawyer, Mr. Benoît, on the phone (Dussault, para 6). Mr. Benoît explained the charges laid against Mr. Dussault and his right to remain silent, however, he felt Mr. Dussault did not understand his advice, hence Mr. Benoît offered to complete his consultation in person at the police station (Dussault, para 7). Mr. Benoît informed Officer Chicoine that he was coming to the station, and asked the officer to suspend the investigation until then; Officer Chicoine responded this was, “no problem” (Dussault, para 8). Mr. Benoît told Mr. Dussault that he would come to the station to meet him, meanwhile, he would remain in a holding cell and reiterated the detainee’s right to remain silent (Dussault, para 9).
Following this conversation, Officer Chicoine, along with the lead investigators on Mr. Dussault’s case, decided that Mr. Benoît would not be permitted to meet with Mr. Dussault (Dussault, para 10). Despite Officer Chicoine informing the lawyer about this decision, Mr. Benoît still arrived at the station and was not allowed to meet with Mr. Dussault (Dussault, para 13). Later in the evening, when Officer Chicoine informed Mr. Dussault that the lead investigators were ready to see him, Mr. Dussault asked if his lawyer had arrived, to which the Officer replied, “the lawyer was not at the police station” (Dussault, para 15). Ultimately, Mr. Dussault was subjected to an interrogation, without meeting Mr. Benoît in person, during which he made an incriminating statement.
At trial, Mr. Dussault argued that the incriminating statement at issue was obtained in a manner that violated his s. 10(b) right under the Charter, and it should be excluded (Dussault, para 18). His counsel argued there were objectively observable circumstances which demonstrated that Mr. Dussault did not understand the lawyer’s advice, and the police were obliged to provide Mr. Dussault with another opportunity to consult his lawyer (Dussault, para 20). The trial judge was not convinced of these arguments for three reasons: (i) the lawyer had adequately explained Mr. Dussault’s right to remain silent; (ii) Mr. Dussault understood the lawyer’s explanation of the right to remain silent; and (iii) Mr. Dussault did not mention to the police that he did not understand his right to remain silent or his rights in general (Dussault, para 21). The trial judge found Mr. Dussault had exercised his right to counsel adequately, the police were not obligated to provide a second opportunity for the right to consult, and the statement at issue was admissible (Dussault, para 21).
Mr. Dussault appealed to the Quebec Court of Appeal, which held Mr. Dussault’s call with his lawyer was incomplete for the purpose of s. 10(b), and that his right to effective assistance from counsel was breached (Dussault, para 23). The appellate court quashed the trial judgment and ordered a new trial (Dussault, para 22). The Crown then appealed to the SCC.
The issue before the SCC was whether the police were required to provide Mr. Dussault with another opportunity to consult counsel before he was interrogated.
S. 10(b) of the Charter states:
Everyone has the right on arrest or detention: (b) to retain and instruct counsel without delay and to be informed of that right.
In R v Sinclair, 2010 SCC 35 [Sinclair], the SCC explains the purpose of s. 10(b) is to provide a “detainee with an opportunity to obtain legal advice relevant to his legal situation” (Sinclair, para 24). Based on the legal advice they receive, the detainee can decide whether they wish to cooperate with the police investigation or choose to remain silent (Sinclair, para 26).
Regarding the right to counsel, the police must meet two duties. First, when arresting the detainee, the police must inform them of their right to counsel (“the informational duty”)(Dussault, para 31). Second, if the detainee chooses to invoke their right to counsel, the police must give them a reasonable opportunity to do so (“the implementational duty”)(Dussault, para 31). In this case, the police met their informational duty when informing Mr. Dussault of his right to counsel. However, the dispute in this case is whether the police met their implementational duty. In other words, did the police give Mr. Dussault a reasonable opportunity to exercise his right to counsel? If not, then the police breached Mr. Dussault’s s. 10(b) rights and the remedy of excluding the incriminating statement will be granted.
In Sinclair, the SCC noted that detainees do not have a right to receive, and the police do not have a duty to facilitate the continuous assistance of counsel (Sinclair, paras 37-39). For example, if a detainee asks to speak with their lawyer more than once, the police are not obliged to fulfill these requests, given the detainee reasonably exercised their right to counsel the first time. The SCC found, for the police to meet their implementational duty, it is sufficient for a detainee to have a “few minutes on the phone with a lawyer…even for very serious charges” (Dussault, para 32).
On the other hand, there are some exceptional circumstances which may give the detainee another opportunity to consult their lawyer, even if they exercised their initial right to consult. In Sinclair, the Court explained there are three categories of changed circumstances which may renew a detainee’s right to counsel (Sinclair, para 2). These include, “new procedures involving the detainee; a change in the jeopardy facing the detainee; or reason to believe that the first information provided was deficient” (Sinclair, para 2).
In Dussault, the third exceptional category described in Sinclar is at issue. The SCC writes this third category may apply in this case if the legal advice for the detainee has been “undermined” by the police (Dussault, para 35). In Sinclair, the court found legal advice undermined by the police in this context “may have the effect of distorting or nullifying it” (Sinclair, para 52). This frustrates the purpose of s. 10(b) because although a detainee received the legal advice, they may perceive it as unhelpful, which hinders their ability to make informed decisions about their legal situation during an interrogation. To counteract this effect, the court found it is “necessary to give the detainee a further right to consult counsel” (Sinclair, para 52).
But what does “undermine” legal advice mean in this context? The court’s reference to R. v. Burlingham,  2 SCR 206 [Burlingham] in Sinclair suggests the police can undermine legal advice by frustrating the detainee’s confidence in their defence counsel (Sinclair, para 52). For example, an officer may make belittling comments about the defence counsel’s, including but not limited to, loyalty, legal fees, commitment and availability for their client, with the intention of undermining the detainee’s confidence in their counsel (Dussault, para 37). Both Sinclair and Burlingham suggest that undermining the detainee’s confidence in counsel in the right to counsel context erodes trust in the solicitor-client relationship, which impairs the purpose of s. 10(b).
Additionally, a detainee’s confidence in their counsel may be unintentionally undermined by police conduct. In Burlingham, the police expressly questioned the defence counsel’s trustworthiness and competence. Contrastingly, in Sinclair, the police’s unintentional conduct had the effect of undermining the legal advice for the detainee. In other words, “undermining” is not limited to the intentional belittling of defence counsel (Dussault, para 40). In Dussault, SCC warns a detainee’s right to consult will not be renewed if the police use tactics to persuade them into cooperation without undermining the legal advice they received (Dussault, para 45). Lawful police tactics may include “revealing (actual or fake) evidence to the detainee in order to demonstrate or exaggerate the strength of the case against him” (Sinclair, para 60).
Application to Dussault
In Dussault, two actions by Officer Chicoine and the police’s conduct, in general, undermined the legal advice provided to Mr. Dussault.
When Mr. Benoît asked Officer Chicoine to suspend the investigation until he arrived at the police station, and the Officer responded, “no problem”, Mr. Benoît reasonably relied on the Officer’s confirmation to inform Mr. Dussault that he would meet with him at the station and meanwhile, Mr. Dussault would remain in the holding cell (Dussault, para 48). While Officer Chicoine did not intend to mislead the lawyer or the detainee by saying “no problem,”, his confirmation indirectly led Mr. Dussault to believe that he would have the opportunity to consult with counsel at the police station. Since the consultation never took place, Mr. Dussault was unintentionally misled by Officer Chicoine.
Later that night, when Officer Chicoine told Mr. Dussault that a leading investigator was ready to see him, Mr. Dussault asked if his “lawyer arrived,” and Officer Chicoine replied he wasn’t “at the front of the station” (Dussault, para 49). Crown counsel argued that Officer Chicoine perceived the situation as fragile, and told Mr. Dussault that his lawyer was not at the station to avoid undermining Mr. Benoît’s legal advice (Dussault, para 50). In the SCC’s view, Office Chicoine’s response did not, in fact, align with the Crown’s interpretation (Dussault, para 51). Instead, the SCC held, a reasonable person would interpret Officer Chicoine’s response to mean “Mr. Benoît had not arrived at all” (Dussault, para 51). Further, this was affirmed by some of Mr. Dussault’s statements during the interrogation.
The Police’s Conduct
In this case, the police’s conduct undermined Mr. Benoît’s legal advice in two manners. The first relates to the content of the advice, and the second relates to Mr. Dussault’s statements during the interrogation.
First, Mr. Benoît advised Mr. Dussault that he was coming to meet with him in person, until which time he would be placed in a holding cell, and that he should not speak with anyone. Here, Officer Chicoine hampered an important premise of Mr. Benoît’s advice by refusing to let him meet with Mr. Dussault (Dussault, para 54). Thus, this conduct distorted the legal advice given to Mr. Dussault.
Second, the court found there were objectively observable indicators during the interrogation that Mr. Benoît’s legal advice was undermined. During that time, Mr. Dussault repeatedly expressed that his lawyer never arrived and his lawyer would be here (Dussault, para 54). He questioned why his lawyer had given him the advice he did and implied he felt lonely because of his lawyer’s failure to show up (Dussault, para 54). From these statements, it is objectively observable Mr. Dussault was conflicted in believing Mr. Benoît’s advice, which hindered his ability to understand his legal situation. This effect is attributed to the police’s conduct, which undermined the advice Mr. Dussault received.
The SCC held, in this case, the police were obligated to offer Mr. Dussault another opportunity to “re-consult” with his lawyer (Dussault, para 56). The police’s failure to do so meant they also failed to meet their implementational duty. Accordingly, the police breached Mr. Dussault s. 10(b) rights and the remedy he sought, of excluding the incriminating statement from the record, was granted.