General Principles
Section 10(b) creates the right to retain and instruct counsel without delay, and the right to be informed of that right without delay.
If a detained person, having been advised of his right to counsel, chooses to exercise that right, the police must provide the detained person with a reasonable opportunity to exercise that right and must refrain from eliciting incriminatory evidence from the detained person until he has had a reasonable opportunity to consult with counsel: R v Hamilton, 2017 ONCA 179 at para 71
The rights created by s. 10(b) attach immediately upon detention, subject to legitimate concerns for officer or public safety: R v McGuffie, 2016 ONCA 365 at paras 41-42
A police officer has an obligation under s.10(b) of the Charter to afford an accused person not only a reasonable opportunity to contact counsel of his choice but also to facilitate that contact: R v Vernon, 2016 ONCA 211 at para 2
A Tainted Second Statement
The Plaha test applies in determining whether, when the police have obtained a statement in violation of s. 10(b), and the suspect gives a second statement after having consulted a lawyer, the second statement was “obtained in a manner” that infringed the Charter: R v Hamilton, 2017 ONCA 179 at para 45
There are two components to the s. 24(2) analysis. The first is a threshold requirement: was the impugned statement obtained in a manner that infringed a Charter right? If that threshold is crossed, one turns to the second “evaluative” component of s. 24(2) to determine whether the admission of the impugned evidence would bring the administration of justice into disrepute.
A generous approach is to be taken to the threshold issue. The relationship between the breach and the impugned evidence may be temporal, contextual, causal or a combination of the three. The connection must be more than tenuous. In Plaha, a six and a half hour gap between the two statements was sufficient to make out a temporal connection. In Hamilton, a four-hour gap between the two statements was sufficient to make out a temporal connection: Hamilton at paras 38-42, 51.
The police can make a “fresh start” by clearly severing their subsequent interrogation from the earlier Charter breach.
In Hamilton, the Court of Appeal found that the second statement was tainted and should have been excluded in circumstances where the police did not give a fresh start warning, despite the fact that: the accused received legal advice after the first statement and before he made the second statement; the accused told the second statement officer that he was aware of his right to silence and that duty counsel had told him not to speak to police; the accused was aware of the charges that he faced throughout; during the interview, the second statement officer affirmed the accused's right to silence; and, the second statement officer did not refer to the accused's first statement during his interview with him: Hamilton at paras 56-59
Prosper Warning
The “Prosper warning” is meant to equip detainees with the information required to know what they are giving up if they waive their right to counsel. A Prosper warning is not required in all cases. It is needed only if a detainee has asserted the right to counsel and then apparently changes his mind after reasonable efforts to contact counsel have been frustrated. In such circumstances, the burden of establishing a waiver of those rights is on the Crown and is a high one, requiring proof of a clear, free and voluntary change of mind made by someone who knew what they were giving up. A proper Prosper warning is therefore significant in enabling the Crown to prove waiver of the right to counsel in such cases.
It is helpful in understanding the Prosper warning to appreciate the rights that are stake when a detainee waives their right to counsel. Specifically, when a detainee asserts their desire to exercise the right to counsel, either expressly or by not waiving their right to counsel, the police are obliged to cease questioning and are under a duty to facilitate the exercise of that right. The temporary obligation to cease questioning also extends to other efforts to elicit evidence from the detainee, and is often referred to as the obligation or duty to “hold off”, since there is no problem in properly using the detainee as a source of evidence after they have exercised or relinquished their right to counsel.
The proper warning imposes an additional informational obligation on police that is triggered once a detainee, who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice. At this point, the police are required to tell the detainee of his right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity.
If the detainee is not reasonably diligent in exercising the right to counsel, the duty to hold off will be suspended and the police may question the detainee. The obligation on the police to make efforts to facilitate contact with counsel will also be suspended. The right to receive a Prosper warning at the time will also be lost. After all, there is no need to advise a detainee of what they will lose if they waive their right to consult counsel without delay, where the detainee has already forfeited that right by not being reasonably diligent in exercising it: R v Fountain, 2017 ONCA 596 at paras 27-30
Exclusion of Evidence
A court may exclude evidence not seized as a result of a s.10(b) violation. While the “obtained in a manner” component is usually established where there is a causal connection between the evidence seized and the Charter right violated, this is not always the case. The “obtained in a manner” component also includes temporal and contextual connections: R v Shang En Wu, 2017 ONSC 1003; R v Pino, 2016 ONCA 389