Most police and special constable organizations order notebooks in large quantities to carry the organization through a number of years. It only makes sense to ensure your service never runs out of notebooks, especially in a busy district. This proactive form of procurement can sometimes result in an issuance of outdated notebooks. When this is the case, ensure you are not using the dated primary caution; one might be surprised at how often it still is in existence inside police memo-books today. The old caution included a question asking if the accused wants to say anything in answer to the charge. This question can no longer be asked as part of the initial caution, as it essentially asks the accused to provide a statement before exercising their right to counsel. If this old caution is still in your memo-book, please ask your agency to update it.
Crash course on Rights to counsel and cautions
The case law regarding the accused’s right to counsel under section 10 of the Charter is always evolving. It was once believed that a delay in providing an accused their right to counsel or a delay in the implementation of that right (a call to counsel) would usually result in the accused’s statement being inadmissible; that is no longer the case. Conversely, an often-overlooked point is that section 10 of the Charter is only triggered when the accused is arrested or detained. What this means is that if you take an out of custody statement from a suspect, then your only duty is to caution them about their right not to speak to you and their right to remain silent.
My own personal experience in the courts in recent years is that the court and the Crown are taking a much stronger stance in regard to not only the informational duty of the police to provide the accused with their right to counsel, but also with their implementation duty in allowing the accused to call their counsel of choice or duty counsel. An unreasonable delay in advising an accused of their right to counsel or a delay in the accused making a call to counsel could result in a possible stay of proceedings or the inadmissibility of evidence (R v. Taylor 2014 SCC 50). A Charter remedy, in favour of the accused, will also result when the rights to counsel are delayed during investigative detention.
What does this mean in a practical setting? It means that as soon as you have control over a detained or arrested party, you must give them their right to counsel. If they want to exercise that right at the moment, then they are entitled to use their phone or your police-issued phone to do so. You must advise the accused that their call will mostly likely not be in private until they get to the police station, if their continued detention is warranted. The accused should be allowed to make that call to counsel of choice or duty counsel, if it is safe to do so, and it would not jeopardize your investigation (i.e. the accused alerting someone that a search warrant is being executed). Additionally, you can no longer suspend a person’s access to counsel after a search warrant has been executed, so it would be prudent to have an officer at the station with the accused to facilitate the call to counsel once the warrant is executed (R. v. Rover, 2018 ONCA 745).
Now that you have addressed the accused’s section 10 rights and have cautioned them, you are going to have to be cognizant of several other issues if you want get an admissible statement. One issue I have personally dealt with is with regards to the accused understanding that the duty counsel that they spoke to, are actually lawyers. You must ensure that the accused understands counsel means lawyer. If the accused does not understand that the duty counsel they spoke to was a lawyer, then it falls back on the police to have them speak to duty counsel again with the understanding that they are speaking to a lawyer. One might think it would be incumbent on duty counsel to offer that information, but I have learned the hard way from two judges that the onus is on the police. To offer insight based on another lesson I have learned through experience, always ensure that the accused knows all their possible jeopardy when getting legal advice, even if you are not sure if your are going to charge them with a more serious offence in the future. Clearly articulate all information for the accused if you want that statement to later stand in court.
Another often forgotten duty when obtaining a statement from the accused is the Prosper Warning (R v. Prosper). If the accused initially wanted to speak with their lawyer but could not reach them, and as such, now want to speak to the police, they must be given a Prosper warning. This warning consists of the following necessary components:
- State that the accused initially wanted to speak to counsel but has changed their mind.
- Remind the accused that they do not have to speak to the police.
- Advise the accused that they still have the right to speak to a lawyer and that this right will be activated if requested.
- Advise the accused that a statement will not be taken from them until they are certain they want to waive their right to counsel and understand that their statement may incriminate them.
- Ensure the accused understands this warning in its’ entirety.
- Ask the accused how they would like to proceed.
Always remember to follow internal policies and check with your division’s field training officer for clarification and to ensure you are on the right track.