Abstract
In 2022, the Supreme Court of Canada issued two judgments with respect to the constitutional right to counsel: R. v. Dussault and R. v. Lafrance. This right is located in section 10(b) of the Canadian Charter of Rights and Freedoms. Specifically, both decisions concern an accused’s right to reconsult counsel in the context of custodial police interrogations. Further to earlier Supreme Court jurisprudence regarding an individual’s constitutional right to counsel, an accused is permitted to consult a lawyer prior to police questioning. Police must refrain from questioning the individual until that individual has had an opportunity to consult a lawyer. However, having consulted a lawyer, an accused is not entitled to have counsel present during questioning. Nevertheless, the Court has held that, in certain contexts, an accused may be permitted to reconsult counsel once an interrogation has commenced and where there is reason to question the detainee’s understanding of their rights. In Dussault and Lafrance, the Court rightly concluded that the two accused individuals were entitled to reconsult their lawyers after the interrogations commenced and police interrogators failed to provide them with this opportunity. While agreeing with the Court’s conclusions in these judgments, the author argues that these cases illustrate the importance of having a right to have counsel present during such interrogations. The right to reconsult counsel is contingent on police interrogators perceiving these changed circumstances, which many may be unwilling to see, particularly while in hot pursuit of a confession. The right to have a lawyer present would enable an accused to have access to advice in real time without having to rely on an interrogator to properly register such changed circumstances. In acknowledging a right to have counsel present, the Court would be recognizing a broader vision of counsel serving as a lifeline during custodial interrogations. The ability to have counsel present would require the Court to revisit its earlier jurisprudence from 2010, including the decisions in R. v. Sinclair and R. v. McCrimmon.
Citation Information
Khoday, Amar.
"A Lifeline During Custodial Interrogations? The Right to Counsel and Reflections on R. v. Dussault and R. v. Lafrance."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
115.
(2024).
DOI: https://doi.org/10.60082/2563-8505.1451
https://digitalcommons.osgoode.yorku.ca/sclr/vol115/iss1/9
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