[flylock shox]

Originally Posted by transplant99

Which people have the right to do now...I just think they should be aware of that right and the only way to know for sure they do ( unless told by police?) is for them to be councilled as such....therefor allowing them a lawyer in interrogation (or before would work as well...is that the case?)

The police must inform them upon detention/arrest of their right to seek and instruct counsel without delay. If the police fail to do this they will have violated the suspect's Charter rights, and the court will almost certainly remedy such a violation by throwing out any evidence that flows from that violation (including any evidence from a subsequent interrogation).

What typically happens - and what happened in these cases - is that the police informed the person of their right to counsel, the person spoke with counsel who told them "for the love of God, don't say anything, no matter what the police say to you," and then the police continued with an interrogation of the person without counsel present.

Multiple times in the course of these interrogations the person involved said "I don't have to say anything to you, I don't want to cooperate with your investigation, I want to speak with my lawyer," to which the police said "that's right, you don't have to say anything to us, you don't have to cooperate, but you have no right to have a lawyer with you during an interrogation and we're not agreeing to let you have one."

According to the SCC, this is all kosher.

An issue does arise, however, when the person's circumstances change during the course of the investigation, necessitating another consultation with counsel. As the SCC puts it:

A request to consult counsel, without more, is not sufficient to re‑trigger the s. 10(b) right. What is required is a change in circumstances that suggests that the choice faced by the detainee has been significantly altered, requiring further advice on the new situation, in order to fulfill the purpose of s. 10(b).

As to what constitutes a sufficient change of circumstances will vary on the facts of the individual case. In this case, for example, Mr. Justice Binnie was of the view that there had been a change in circumstance requiring a new consultation with counsel:

In this case, the initial refusal to allow S to consult further with his counsel did not constitute a Charter breach. The breach occurred when after several hours or so of suggestions (subtle and not so subtle) and argument the officer confronted S with evidence linking him to the crime and S repeated five times his desire to consult with his counsel before going further. Police use of moral suasion is, of course, absolutely acceptable, but S was clearly concerned (manifested by his five separate requests to consult his lawyer again) whether the lawyer’s initial advice (whatever it was) remained valid. S faced a second degree murder charge. It cannot reasonably be said that the 360 seconds of legal advice he received in two initial phone calls before the police began their interrogation was enough to exhaust his s. 10(b) guarantee. Given the unfolding of new information up to that point in the interview, S’s request to speak again to counsel was reasonable, and the police refusal of that further consultation was a breach of s. 10(b).

And this, in my opinion, is where the law gets interesting...