The legal answering machine

 

Supreme Court of Canada (Philippe Landreville photo)

 

There’s a beautiful, funny, passage in a SCC decision released today today.

Lately, the high court has been looking at a number of criminal appeal cases where the accused believes police infringed their rights to counsel.

Specifically, police are accused of denying them proper access to lawyers/legal advice in the interrogation portion of their arrest [the part where they say a bunch of stuff that really puts them in the jackpot, or…prison.]

Anyhow, in R. v Sinclair, the court writes that one of the conditions allowing a person to re-assert their right to counsel after they’ve already done so to interrogators, there must be a change in circumstances that backs up that request.

For example, a person’s arrested for robbery and suddenly learns they’re actually on the pointy end of a murder beef.

The court notes that legal advice for a person in any interrogation situation will only be as good as what police let the person know the situation is.

From the decision:

Communication between solicitor and client is the condition precedent to the lawyer’s ability to assist. The advice will only be as good as the information on which it is based. In the case of s. 10(b), the lawyer cannot function effectively in an informational vacuum without the possibility of even a general idea of the unfolding situation in the interrogation room.

Until aware of that situation, the lawyer may be in no position to render — and the detainee may not receive — meaningful assistance beyond what could be accomplished by a recorded message:

“You have reached counsel. Keep your mouth shut. Press one to repeat this message.” In this case, the evolving situation produced information S’s lawyer needed to have to do his job.

Such an answering machine would be a blessing, I’d bet, to all the harried junior defence lawyers forced to take the drunken 3 a.m. phone calls from the cop shop.

Two other recent cases also deal with the same issue:

R. v Willier

R. v McCrimmon

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